By Scott S. Greenberger
A bipartisan group of state lawmakers, spurred by a recent US Supreme Court ruling, is pushing a measure designed to curb the power of Massachusetts cities and towns to take private property to make way for private economic development.
The move will face strong resistance from local leaders and agencies such as the Boston Redevelopment Authority, who fear that restricting the power of eminent domain will hamper their efforts to rejuvenate rundown neighborhoods. In Massachusetts, cities and towns can generally force the sale of private property to promote economic development if they can show that the development will benefit the public through job creation or expansion of the tax base.
Under the measure authored by Representative Bradley H. Jones Jr., the House Republican leader, municipalities would be prevented from taking private property for private development except in cases where the property is "a substandard, decadent, or blighted open area" under state law.
Geoff Beckwith of the Massachusetts Municipal Association, which lobbies for cities and towns, says the law would handcuff local officials.
"Why blunt that tool? Why take it away, especially since the decisions are being made locally?" Beckwith said. "You have to feel for people who want to stay in their homes and like where they are. But if an area has lost thousands of jobs and developing that area would create thousands of jobs and commerce in a community, there is a broader public interest."
In a ruling that generated outrage across the political spectrum, the Supreme Court decided at the end of June that New London, Conn., officials could force the sale of houses in a depressed neighborhood to make way for office space, a hotel, new houses, and a walkway along the Thames River. The owners of 15 houses in the Fort Trumbull neighborhood refused the city's offer of compensation, and after their houses were condemned, they filed a lawsuit challenging the city's plan.
Cities and towns across the country have long used their eminent domain powers to take houses, with compensation, for roads, bridges, schools, and other projects with obvious public benefit. In recent years, Massachusetts courts have held local officials to a relatively high standard of what constitutes the public good. In a 2000 case, for example, a Superior Court judge prevented Springfield from taking private land to build a minor league ballpark.
But this year, writing the majority opinion in Kelo v. New London, Justice John Paul Stevens wrote that New London's "determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference" and that "the city has carefully formulated an economic development plan that it believes will provide appreciable benefits."
But Stevens also said that states may use their own constitutions and laws to limit eminent domain powers. Delaware and Alabama have done so since the ruling, explicitly restricting cities' eminent domain powers to takings for public projects. Ten other states are considering limits, according to the National Conference of State Legislatures.
In Massachusetts, the prospects for legislation tightening eminent domain appears strong. The House already has approved a nonbinding resolution condemning the Supreme Court's decision, and Jones's proposal has 47 cosponsors from both the House and Senate. He is offering it both as legislation, which could be passed immediately, and an amendment to the state Constitution, which would take several years but would offer more permanency.
"We had a revolution that started in Massachusetts a long time ago because we didn't want a sovereign making arbitrary decisions without our involvement," said Jones, of North Reading. "Potentially, with the power of this eminent domain, you could have three people on a board of selectmen or a town meeting or city council deciding they want to do something. People are concerned and don't see the real necessity of that."
Kimberly Haberlin, a spokeswoman for House Speaker Salvatore F. DiMasi, said he has "always been a very strong supporter of individual property rights" and that the issue for the House will be "how we define the larger common good." A spokeswoman for Senate President Robert E. Travaglini said he needs more time to review the Jones bill.
Julie Teer, a spokeswoman for Governor Mitt Romney, said the governor "supports Brad Jones's bill and believes it's essential that in light of the recent Supreme Court ruling we take action to protect citizens from the government taking of private property for economic development."
Two famous examples of Massachusetts land takings, the elimination of four townships a century ago to make way for the Quabbin reservoir in central Massachusetts and the bulldozing of Boston's West End in the 1960s in the name of urban renewal, are now routinely lamented.
But Beckwith says those episodes are the exceptions, and that Massachusetts already has strong laws in place to prevent local officials from abusing their eminent domain power.
Susan Elsbree, a spokeswoman for the BRA, pointed out that the agency, which derives its powers from federal standards laid out during urban renewal efforts of the 1950s and 1960s, currently has to prove that an area is blighted before taking it. "We're wary of any additional legislation that seeks to curtail powers that already exist," she said.
"We don't feel like it's necessary, because we do use it . . . within certain legal parameters of decadence and blight," Elsbree said.
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