Legislators hear worries about eminent domain: Chicago (IL) Tribune, 7/21/05

By Crystal Yednak

Flooded with calls from residents worried about the effects of a recent Supreme Court decision on private-property rights, state legislators heard testimony Wednesday on Illinois' eminent domain laws and if they should be strengthened.

Opinions were divided over whether Illinois law offers enough protections and compensates property owners justly for land.

"The definition should say that eminent domain should not be used by government to take private property and give it to private investors who will make a profit," said Kenneth Swanson, a Galesburg resident who testified at the Thompson Center in Chicago.

The Supreme Court decision last month stunned some property owners, who believed eminent domain could only be used for public uses such as for roads or airports.

But in its opinion, the majority said private economic development projects that increased taxes and brought jobs also could be considered a public use. The decision also said states could impose greater protections.

Others at the hearing of the Senate State Government Committee Wednesday argued that Illinois should proceed with caution in changing laws because they already include provisions to prevent abuse.

Brian Martin, a lawyer who has represented municipalities in eminent domain cases, said state law allows eminent domain for redevelopment but requires that land qualify as "blighted" by a number of factors. He also pointed to sections requiring the municipality to prove the land would not redevelop "but for" the government intervention.

"That is exactly the type of careful consideration the court said a local government should undertake before a local taking," Martin said.

But others said that same law allows governments to designate properties as blighted that really are not.

William Ryan, an attorney who has represented property owners, said the definition is too broad and allows properties with significant value, such as in areas of the Loop, to qualify as blighted under the law.

He said eminent domain is abused in Illinois because when owners are compensated for their property, such items as attorney fees, court costs and appraisals come out of that compensation. Ryan argued the law also is unfair because businesses that are forced out of their properties and can't find a new location nearby are not compensated for the loss of their business.

University of Chicago law professor Richard Epstein suggested legislators create a formula to require a government to pay fair market value for the land, plus a premium of 25 to 50 percent to cover costs that aren't typically covered.

Legislators said any proposal would have to weigh the need for economic development.

Des Plaines City Manager David Niemeyer credited eminent domain with enabling the city to revitalize its downtown business district and other areas. To complete its Library Square project, which he called the catalyst for the rebirth of Des Plaines' downtown, the city had to buy 42 parcels of property, using eminent domain in two-thirds of those cases.

"While some in the public sector believe that market forces should act as the sole arbitrator of land prices, we believe that the public good trumps property rights, in some, but not all, cases," Niemeyer said.

He added that the city uses eminent domain as a last resort.

Developers said it is often difficult to assemble all the parcels of land needed to undertake a large-scale economic development project.

"Eminent domain is a critical tool for industrial development," said Paul Fisher, president of CenterPoint Properties in Oak Brook, adding that the projects are often needed to bring jobs and help the region compete in a global market.

Clearer standards in eminent domain laws would help encourage further economic development, he said. Fisher described situations in which his company has abandoned plans for developments because it would have to undertake eminent domain proceedings that could stretch out years.

State. Sen. Steven Rauschenberger (R-Elgin) said he has seen some questionable use of the power and asked whether Illinois should enact a stricter standard of what constitutes a "public use."

"It's always going to serve the developers' interest to engage a sympathetic unit of government to go to eminent domain rather than go to the market," he said.

Concerns were also raised about using eminent domain to displace low-income residents, who often don't have the money or clout to fight back.

Any legislative proposal will also have to include steps to make the process more transparent, said state Sen. Susan Garrett (D-Lake Forest), chairman of the committee.

Garrett said she would organize a bipartisan committee to look at the issues raised.

Chicago Tribune: www.chicagotribune.com