Eminent domain ruling spurs moves for reform: Asbury (NJ) Park Press, 8/21/05


By Dana Berliner, Institute for Justice

When the U.S. Supreme Court decided that the Constitution allows homes to be taken by the government for potentially more profitable, higher-tax uses, it touched off a popular backlash and generated political momentum for legislative reform.

Immediately, eminent domain abusers began a desperate attempt to keep the power to take homes and businesses and turn them over to private developers. The special interests who benefit from these government-forced, private-to-private takings are struggling to convince outraged Americans that they shouldn't care.

But anyone — especially anyone in New Jersey — who might be swayed by their arguments should know that developers are ready, willing and able to jump at the opportunity for private land grabs that the Supreme Court has created.

In Lodi, 200 residents could lose their little piece of the American Dream to make way for private retail development and a senior-living community. Lodi Mayor Gary Paparozzi called the Supreme Court's ruling a "shot in the arm" for the town.

In Long Branch, officials are poised to use eminent domain to take the oceanfront homes of residents who stand in the way of new luxury condominiums.

At least 64 municipalities in New Jersey have designated "areas in need of redevelopment." Although not all of these towns have or will use eminent domain, they now have the power to take any property they (or, more to the point, private developers) want within those areas.

Members of Congress and state legislatures in more than 30 states have either introduced reform legislation or announced that they will. Those who benefit from the virtually unrestricted use of eminent domain — local governments, developers and planners — will be frantically lobbying and trying to scotch any attempt to diminish their power. Here's what they will say: "Nothing's changed. We've been doing this for years."

Many commentators have tried to minimize the Supreme Court's decision by saying that it didn't change the law. This should frighten home- and business owners even more because those commentators are right — government has been using eminent domain to assist private developers on a regular basis for years. I documented more than 10,000 properties either taken or threatened with condemnation in five years by counting properties listed in news articles.

Beware when local officials say they will use eminent domain as a last resort. What they really mean is that they'll come up with plans requiring people to move and then take the property "as a last resort" when the current residents refuse to move voluntarily.

When they take someone's home for a shopping mall, they say they'll only do it for a successful shopping mall and city leaders will feel really bad about kicking those people out. They say they're not acting to benefit a wealthy developer. They say they are bravely making the hard decisions to improve the tax base and city services for everyone.

One might ask why it's so brave of city leaders to decide that someone else has to sacrifice their home or business. Where are all the city councils offering up their own neighborhoods, or their parents' neighborhoods, for private development to supposedly revitalize the city?

The final stand for the defense of eminent domain abuse is the specter that somehow the city will go down the tubes unless it can confiscate property for large development projects. These claims are at best disingenuous, at worst outright dishonest. There are many ways to encourage economic growth that do not involve taking someone else's property. Will the city be able to have condos and a Target on exactly that corner? Maybe, maybe not. Will the city be able to have business development if its bureaucrats are willing to relinquish their desire to say exactly what and exactly where development will occur? Absolutely.

Despite these spurious claims, Americans are not reassured nor should they be, and that is because city leaders have missed the point entirely. The problem is that everyone understands that the rationale of economic development — less profitable uses can be taken for more-profitable uses — goes against everything that America stands for. It enshrines power and privilege over hard work and individual choice.

The American Dream still rings true for so many. To the vast majority of Americans, that dream, the soul of our country, is more important than having a successful shopping mall.

Asbury Park Press: www.app.com

Institute for Justice: www.ij.org