Court's eminent domain decision hailed as victory for cities: St Louis (MO) Post-Dispatch, 7/2/05

By Jim Merkel

A Supreme Court decision handed down last week could influence a number of local cases involving eminent domain.

In a 5-4 vote, the high court upheld the right of a private company in New London, Conn. to take private land for private uses.

In Kelo vs. New London, Conn., the Supreme Court ruled that the city could not take land simply to confer a private benefit on a particular private property. However, the decision said the taking would be executed based on a carefully considered development plan, which would have a public benefit.

The decision pleased [St Louis] Mayor Francis Slay.

"It's very difficult rebuilding an older city with the environmental issues and with the issues of assembling sites for redevelopment to help improve the quality of life for people in our neighborhoods," Slay said.

"The eminent domain has been a good tool for us to acquire property so that we can take older areas and redevelop them into something more positive for the entire city and for the entire region."

But Slay said it's important that officials use good judgment and compassion and only use the tool sparingly when other means of redevelopment aren't working.

One local development that would have been affected by a different decision is the planned Loughborough Commons shopping center at Interstate 55 and Loughbough Avenue. There, 19 homeowners agreed to sell to the developer but a 20th, June Thompson and her son Howard, refused,

Circuit Court Judge Timothy Wilson is now considering whether the Thompsons' home can be taken by eminent domain.

"The decision in the Kelo case takes away an argument that we had as to whether or not this was limited by the U.S. Constitution, said Michael Wolff, the Thompsons' attorney.

But Wolff also argued under a provision in the Missouri Constitution, which he said is more restrictive in allowing the taking of property for private use.

The Missouri Constitution allows the taking of property for blight, "the kind of blight that everybody thinks of," Wolff said. "Our argument is that the Thompsons' neighborhood is not blighted as originally understood back in 1945 (when the rule was originally established)," Wolff said.

"I think the decision from the U.S. Supreme Court is a terrible decision," Wolff said. "What the court is doing is writing out of the Fifth Amendment the term ‘public use.'"

The Fifth Amendment says private property can't be taken for public use without just compensation.

Especially at the local level, the local governments will be more influenced by wealthy members of the electorate, Wolff said.

A different view is held by Alderman Matt Villa, D-11th Ward, who pushed through legislation in the Board of Aldermen calling for Loughborough Commons and allowing eminent domain.

"If eminent domain did not exist, this development would not be going forward," Villa said. "If you did not have the eminent domain tool, one property owner could effectively kill development that is good for the entire region."

Eminent domain should be a tool that's only used in rare circumstances, Villa said. If more than 10 percent of property owners in a redevelopment area are made to sell through eminent domain, that tool shouldn't be used, he said.

If urban areas can't assemble land for development through eminent domain, developers will go to the edge of metropolitan areas, where a single farmer will sell them land, Villa said. This would increase urban sprawl, he said.

"Very little development would get done in the urban areas that are already built out," Villa said.

"Nothing would get developed," Villa said. "That doesn't serve the overall benefit of the city of St. Louis when you have one property owner that can basically say you're not going to do this development."

One landlord who has seen eminent domain used heavily against him is Jim Roos, who runs the landlord management company, Neighborhood Enterprises. Twenty-three apartment buildings managed by the company with 57 units of housing were taken for the Botanical Heights housing development in the McRee Town neighborhood.

Roos said he thinks he knows how the justices came to their decision.

"They've never substantially experienced how eminent domain can be abused. When you start approving eminent domain for private projects, that becomes a mindset for people in government," Roos said.

"People who are a little less popular, a little less affluent then become the ones who are abused by this," Roos said.

Homes of the affluent won't be taken, Roos said. "It's abusing the rights and the benefits of the poor people."

St Louis Post-Dispatch: www.stltoday.com