Bills aim to restrict eminent domain: Pittsburgh (PA) Tribune Review, 7/30/05

By Mike Wereschagin

Two bills are awaiting action in Harrisburg — and more legislation is in the works — to protect property owners from a U.S. Supreme Court decision last month that allows governments to take private property in the name of economic development.

Rep. Tom Yewcic, D-Johnstown, introduced a pair of bills in the House that would bar governments from taking property from one private owner and giving it to another. Sen. Jeffrey Piccola of Dauphin County, a Republican gubernatorial hopeful, has a team of lawyers working on a bill for the Senate, as does Sen. Jim Ferlo, D-Highland Park.

Pennsylvania is among nine states with legislation pending in their state legislatures, according to the National Conference of State Legislatures. Lawmakers in 27 states have either moved to curb the use of eminent domain or are considering measures that would do so, according to the Institute for Justice, a Washington, D.C.-based libertarian law firm.

Yewcic introduced his bills July 1, eight days after the Supreme Court issued its decision.

The case, Kelo v. New London, involved 15 homeowners who refused to make way for a massive redevelopment project in the depressed town of New London, Conn. The Institute for Justice represented the homeowners and has since started a grassroots movement, called the Castle Coalition, to support state efforts like Pennsylvania's.

Five Supreme Court justices sided with New London, saying the "public use" clause in the Fifth Amendment allows governments to take property even if the property won't become publicly owned — for parks or roads, for example. Public use, in the court's opinion, includes the public benefit from private redevelopment projects that bring in more jobs and more tax money.

"That's nothing more than legalized plunder," Yewcic said. "This whole decision is un-American."

Justice John Paul Stevens however, writing for the five-justice majority, said that nothing in the court's June 23 decision "precludes any state from placing further restrictions" on eminent domain.

Yewcic's bills would put three restrictions on the use of eminent domain in Pennsylvania:

The government wouldn't be allowed to take the property from one private owner and give it to another.

The purpose of using eminent domain could not be for increasing a municipality's tax base.

If, after the property is taken, it is ever used for a "nonpublic purpose," the deed must go back to the original owner or the owner's heirs.

The House Committee on State Government has scheduled public hearings for Yewcic's bills in Harrisburg on Aug. 9 and in Philadelphia on Aug. 31. A hearing in Pittsburgh will be scheduled for Sept. 20 or 21, Yewcic said.

"The issue is something we're very interested in," said Steve Miskin, spokesman for the state House Republican Caucus. "I think the Yewcic bills will be the catalyst. ... We're definitely going to take steps to protect people's property."

Pittsburgh has a long, storied history of using eminent domain for economic development. The land for PPG Place, Gateway Center and Mellon Arena, among others, were bought using eminent domain, and the land was then passed on to private companies.

The debate still rages over whether it's been a boon or a bust. Pittsburgh native John Tierney recently wrote a column in The New York Times decrying Pittsburgh leaders' use of the power. Mayor Tom Murphy responded with a column of his own, defending the practice and saying Tierney should apologize.

Murphy threatened to use eminent domain in his bid to remake Downtown with a $522 million shopping complex along Fifth and Forbes avenues. Owners who stood to lose their buildings organized an opposition group, and the project died in November 2000 when the complex's main prospective tenant, a Nordstrom department store, pulled out.

Joseph Gariti, general counsel for the city's Urban Redevelopment Authority, said eminent domain is a useful tool to revitalize blighted areas, and it usually isn't used to take property from an owner who doesn't want to sell.

"When you run into (blighted) areas, a lot of times you'll find a lot of these properties have liens on them that exceed the value of the property," Gariti said. Often, the properties have been abandoned and the owners can't be found. "The only way they can be reused is if we clear the title to the property" by taking the land through eminent domain.

One such redevelopment project ran into a snag when the owner of the Garden Theatre in the North Side, which shows pornographic movies, refused to sell his property for redevelopment. The URA and the owner, who is the last holdout among 41 properties the city wants to raze in the depressed area, are awaiting a decision from the Pennsylvania Supreme Court. The U.S. Supreme Court decision — which deals with the right to due process and just compensation as required by the Fifth Amendment — won't affect the case because the Garden's owner is fighting the URA by claiming his First Amendment right to free speech is being infringed upon.

Allowing the government to take property to lure in businesses and homeowners is "contrary to what the framers of the state and U.S. constitutions had in mind when they created eminent domain," Piccola said. Kelo v. New London "brought to everyone's attention that public use can mean anything, as long as its couched in economic development."

Piccola said he's not sure he wants to prevent governments from using eminent domain as a development tool because it can help revitalize blighted areas. He is considering adding a provision in his bill that would change how people are paid for their property, though. Rather than paying them what the property is worth now, they might be entitled to be paid what the property is worth to the new developer, he said.

Piccola said he expects to have a draft bill ready in a few weeks.

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