Eminent domain is a tool best left unused: Roslindale * West Roxbury (MA) Transcript, 7/14/05


The Supreme Court's recent ruling on eminent domain brought dismay not just to anti-government conservatives, but to lots of others inclined to stick up for the little guy.

On a 5-4 vote, the court upheld the eminent domain taking of several small homes by a New London, Conn., development agency to make way for an upscale hotel/retail/residential complex. The majority ruled that government can seize private property and turn it over to a private developer even if the only public purpose served is economic development and the broader tax base it brings. Conservatives dissented strongly, declaring that the ruling substantially erased the distinction between "public use," which the Constitution allows in eminent domain proceedings, and private profit.

It should be noted, given the current debate over judicial philosophies that the conservative dissenters were the "activist" judges in this case. They were calling for precedents that had allowed similar takings in the past to be overturned. They were seeking to nullify the decisions of at least two legislative bodies in Connecticut.

To use President Bush's formulation, the conservative dissenters - Justices Rehnquist, Scalia, Thomas and O'Connor - were seeking to "legislate from the bench."

But while a stricter interpretation of the Constitution's takings clause has long been a conservative goal, abuse of eminent domain powers has long been a bipartisan practice.

The real divide is between powerful business interests allied with powerful politicians and the property owners standing in the way of their grand plans.

Before entering politics, George W. Bush was involved in a similar enterprise, getting local officials to seize property by eminent domain so his Texas Rangers could play baseball in a new stadium.

Eminent domain is nothing new in Boston. Within days of the Supreme Court ruling, we got a taste of how it might play out in the city.

Mayor Tom Menino, who considers the rebirth of the South Boston waterfront his personal legacy, is dissatisfied with the pace of the development company that owns the 21-acre Fan Pier property. Emboldened by the Supreme Court ruling, City Council President Michael Flaherty called on the city to seize the property under eminent domain and sell it to a developer who is more of a team player.

Menino has other tools to use against the developer, notably the threat to withdraw permits if progress continues to lag, and has resisted Flaherty's call. But you can see the problems with putting a tool as powerful as eminent domain in the hands of the politically powerful.

It's bad enough when a politically-connected developer can get government to seize a home in the way of its bulldozers. The idea that politicians can take private property away from an unfavored developer - who has already sunk millions into the project - and give it to a more favored developer is chilling.

One of the New London homeowners said recently that if someone from the city had come to him with an offer to purchase his property, he'd have listened. But all he got from the city was a notice his property was being seized. Why negotiate when you have the power to take the land now and determine the price later?

Could such a thing happen in West Roxbury and Roslindale? Sure it could, under the right economic situation.

It's that kind of arrogance that makes people of all political stripes regret the court's eminent domain ruling. It's worth noting, however, that the ruling doesn't force any governmental body to abuse eminent domain for private profit. Even New London can still change its mind.

That which is legal is not always wise. Government officials should recognize that eminent domain is one redevelopment tool best left on the shelf.

Roslindale * West Roxbury Transcript: www2.townonline.com/roslindale