The recent U.S. Supreme Court decision expanding a municipality's ability to seize private property for economic development has taken some public officials and land use experts by surprise.
While the power of eminent domain has long been used by government to take land for highways, parks and other public uses, and more recently blighted areas for redevelopment, the June 23 ruling appears to have expanded that power.
In a 4-3 decision, the high court ruled that New London, Conn., could seize a neighborhood through the use of eminent domain and permit a private developer to build a hotel and office space in its place that would generate much higher tax revenues.
"I was shocked by it," said state Rep. Kate Harper, R-61, a land use attorney and former Lower Gwynedd Township supervisor.
The ruling "seems to be an expansion of eminent domain," which goes back to the Magna Carta and is an essential part of the law, permitting government to seize a property for public uses with the property owner getting just compensation, Harper said.
"I've often counseled municipal clients to be careful that [their use of] eminent domain be viewed as a public purpose," she said, "not a substitute of one owner for another with a greater tax potential.
"I think eminent domain can be an important tool for government to use for public purposes, for parks and highways," Harper said. "I recognize [Lower Gwynedd] would not own Penllyn Park without eminent domain," she added, referring to the seven-year fight by Lower Gwynedd to obtain the parkland during Harper's tenure on the township board.
The concern is taking land not for a public purpose, Harper said, and whether the high court's ruling "is a signal that it's OK to replace non-blighted properties to get more tax revenue."
"Urban redevelopment and renewal is an important strategy in our growth," she said, but "we need to make sure areas [seized] on the basis of blight and redevelopment are really blighted."
"It's fundamentally un-American," state Rep. Josh Shapiro, D-153, said of the high court ruling. "This country was founded on the right to property, beliefs, speech. This decision seriously undermines the right to property."
The Connecticut statute talks about acquisition for economic development and redevelopment, but not all states do, noted land use attorney Marc Jonas with Eastburn and Gray in Blue Bell. In Pennsylvania, municipalities have the power to condemn land for public purposes and some redevelopment authorities have the power to seize land for redevelopment in blighted areas.
The Supreme Court's decision presents a possibility for abuse, he said. "In a blighted neighborhood [eminent domain] is a good tool," Jonas said. "In other areas, where you could gain more tax revenue [by seizing property], it could be abused."
Jonas said he has seen an increasing use of condemnation by municipalities "to effect redevelopment or for the common good.
"A number of towns are in sore need of a shot in the arm, but it's one thing to take land for a public purpose and a whole other to flip it into the hands of a private developer," Jonas said.
Pennsylvania courts would not have sanctioned taking non-blighted property and putting it in the hands of a private developer prior to the high court's ruling, he said. "Now it opens the door."
In his opinion, Jonas said, "the court went too far in not really including specific standards to prevent the potential for abuse."
The decision does say that states could weigh in with greater restraints, Jonas noted. To condemn land and put it in the hands of a private developer - "the Legislature could try to plug that hole. I see an opening for the states to rein in on that."
"I would support legislation at the state level to make it difficult, if not illegal, to take [private property] for economic development purposes," Shapiro said.
The decision seems to imply, that if Abington, for example, felt it was necessary to revitalize an area for tax purposes that it could take properties and build a shopping mall, Shapiro said. "I think that's fundamentally wrong.
"I would have a more narrow definition of public use - for roads and bridges and public parks," he said. "For economic development is a real slippery slope."
The ruling has caused "great consternation" in Harrisburg, Harper said July 1, noting a bill limiting eminent domain in the state had been introduced that day.
"My worry is that in the rush to restrict [eminent domain], we might throw out the baby with the bath water; it does have some valid and useful purposes," she said. "We should define the uses for which eminent domain can be put in Pennsylvania ... we need a tighter definition of blight."
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