Eminent domain laws don’t serve Hoosiers: Ft Wayne (IN) Journal Gazette, 7/25/05

By David Wolkins

Many property owners are concerned about issues such as property taxes or upkeep. Government seizure seems an unfounded concern. However, after the Supreme Court’s ruling in the Kelo v. City of New London case, it may not be an outlandish scenario.

In this case, the Supreme Court upheld New London’s right to seize 15 private properties to be developed into hotels, offices and a conference center by private developers. The city was able to seize the land by using eminent domain laws, which allow governments to seize private property for public use. According to reports, none of the property owners wanted to sell, and the city did not plan to maintain ownership of the land, instead choosing to transfer it to private developers.

An article by Matt Greller, executive director of the Indiana Association of Cities and Towns, appeared in The Journal Gazette, “Eminent domain good development tool” (July 11). He said the Supreme Court ruling is good for Indiana and will allow local governments to “bring jobs and a vibrant economy to cities and towns.”

In reality, this ruling further expands the already vague definition of exactly what “public use” means. The original intent of eminent domain laws was for the government to fairly compensate private property owners and obtain their property for public projects such as courthouses, highways and bridges. In light of this ruling any newly established or expanded commercial entity could potentially be deemed “for the public good,” since the commercialization could increase the tax base and possibly provide jobs.

In her dissent Justice Sandra Day O’Connor said, “Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” While I support economic development and job creation, local government’s seizure of land to be privately developed should not be considered in the best interest of citizens. The goal of government should be to serve the people, not to turn a profit.

Greller also notes the positive use of eminent domain laws in the expansion of the AM General plant in Mishawaka. The land the plant wanted to expand onto was occupied by 51 privately owned homes. The St. Joseph County Redevelopment Commission, on behalf of the company, announced it would make a decision as to whether the land would be considered “blighted.” This would allow the commission to condemn the homes and transfer the property to AM General. Before the commission’s decision, AM General negotiated with enough of the homeowners to begin the expansion, and eventually reached agreements with all the homeowners. Eminent domain laws were not necessary in this case. Property owners should reserve the right to negotiate with the state or commercial entity seeking their land and turn down that offer if they so choose.

In many states, including Indiana, land must be considered “blighted” to be eligible for seizure through eminent domain law. While this may seem like a safeguard, the definition of “blight” is too vague to prohibit the government from seizing land if they choose. In fact, there are numerous examples of areas being considered blighted or condemned after property owners refused to sell their property to the government. According to a report by the Castle Coalition (www.castlecoalition.org), the homes in the Mishawaka example were “well maintained, decidedly middle-class homes.” Yet the area redevelopment commission was going to rule on whether they should be condemned. The condition of seizing only supposedly blighted areas does not protect property owners from having their land taken from them. In the last session of the legislature, I attempted to more clearly define the concept of blight and will continue that work in the next session to ensure that eminent domain laws are not abused.

There is a growing national trend of local governments abusing their ability to acquire private land for development. They are consistently using eminent domain laws that were intended to provide public good to turn around and sell the land to commercial developers. As shown in the New London case, local governments are becoming bolder in their seizures and looser in their definitions of “public good.” One of the most fascinating pieces of this story is that the public, for which these seizures are supposed to do good, overwhelmingly disagree with the decision made by the Supreme Court. An online poll on MSNBC.com, while not scientific, indicates that 98 percent of people surveyed believe developers will gain from this decision and private property owners will lose.

Local governments and the Indiana Association of Cities and Towns along with their legislative allies are the major proponents of these laws, not the citizens of Indiana. Eminent domain, as it stands, does not ultimately serve Indiana citizens. The government should protect the rights of citizens, not take them away.

I urge readers to contact their state legislators with their views on this issue. The study committee dedicated to further considering this issue will meet during the second week of August. Should you have any suggestions or concerns regarding eminent domain or for further information on the committee meetings, please call 1-800-382-9841.

I will continue to vehemently fight against the abuse of eminent domain and the vague language that protects it in our state laws.

Journal Gazette: www.fortwayne.com/mld/journalgazette

Rep. David Wolkins, R-Winona Lake, is chairman of the Indiana House’s interim study committee on eminent domain.