Supreme Court and eminent domain issues: The Cleveland (TX) Advocate, 6/14/05

By Jim Jones

The city of Cleveland is not alone in finding itself caught in the middle of a struggle between the rights of private property owners and the desires of states and cities to utilize limited space to benefit the public.

The Institute for Justice states that in just five years there have been approximately 10,000 declarations or threatened declarations of eminent domain in 41 states.

Eminent domain is a constitutionally protected practice that allows government bodies to condemn properties, most often blighted or slum areas, in order to construct public use projects such as roads or hospitals. Governments wishing to take private property must pay fair market value to the owners of that property.
The practice has been in effect for the greater part of this country's history, allowing railroads and canals to be built in earlier times.

In current times there are growing conflicts over these takings. Unlike the issue here in Cleveland, many governments are trying to stretch the boundaries by expanding the definition of what constitutes "the public good." One case in particular made its way to the Supreme Court when arguments were heard in February.

The case, Kelo v. New London, pits a handful of homeowners and small businesses against a Connecticut city wishing to condemn their property. While city officials here in Cleveland wish to proceed with the construction of a city hall explicitly for public use, officials in New London and other areas are attempting to say that any new development that will increase tax revenues may merit the use of eminent domain. In addition, New London has given its power of eminent domain over to a private development group, The New London Development Corporation.

This, according to the Institute for Justice, turns governmental power over to private corporations who do not have to answer to voters or taxpayers.

Concerns of abuse are being reported across the country and could worsen if these less restrictive guidelines are the norm. Under intense questioning from Supreme Court Justice Antonin Scalia, the New London attorney admitted that any property that could yield higher tax payments is vulnerable when he agreed it would be acceptable to condemn and take a Motel 6 so it could be converted into a Ritz-Carlton if it produced more tax money.

The Institute for Justice, representing Kelo, states this kind of thinking guts the rights of every private property owner since nearly everyone's home or community would generate more tax revenue if it were replaced with a shopping mall or giant warehouse store. When pressed by another justice as to why private developers simply didn't buy out the homeowners, New London Development Corporation's attorney stated that the developers needed to have the threat of eminent domain to prod home and business owners to sell their property, and that takings for "economic development" were no different than taking private property to build a school.

This line of thinking has broken out across states such as Ohio, Kansas and Michigan, where private property has been taken from its owners for such things as parking lots for General Motors, and distribution centers for Target.

Property owners and their supporters as well as state and city governments should find new guidelines on eminent domain handed down to them soon, as the Supreme Court is expected to announce its ruling later this month.

The Cleveland Advocate: www.zwire.com