Hoosier lawmakers consider eminent domain restrictions: Decatur (IN) Daily Democrat, 8/17/05


By Andrea Neal

Long before the Supreme Court's explosive ruling to expand the reach of eminent domain, Rep. David A. Wolkins had crafted a bill to limit Indiana government's ability to take private property.

In its earliest form, HB 1063 would have barred local and state entities from condemning private property and then turning it over to private developers for commercial use.

The measure went through several rewritings before lawmakers voted to send the issue to a study committee. Wolkins, R-Winona Lake, will serve as chairman of the Interim Committee on Eminent Domain, which met for the first time at 1 p.m. Aug. 10 in the Indiana Government Center South.

"I've always been a private property rights person, ever since I've been in the legislature," says Wolkins, whose interest in the topic was piqued after "60 Minutes" aired a show in 2004 on the use — or misuse — of eminent domain around the country.

What would have been a typical ho-hum summer committee now promises fireworks, thanks to the Supreme Court's June 23 opinion in Kelo v. City of New London.

The 5-4 ruling let officials in New London, Conn. take older homes along the city's waterfront for a private developer who plans to build offices, a hotel and convention center. In the court's view, the land grab qualified as a permissible "public use."

The decision lit a fire under what had been a slowly-boiling public. In a Wall Street Journal/NBC News poll, Americans said they were now more concerned about private property rights than right-to-die and abortion issues. Lawmakers in 21 states have announced plans or introduced bills to curb eminent domain abuse at the state level. In Washington, both House and Senate are considering bills to prevent the federal government from using eminent domain for private development.

Eminent domain is government's right to take someone's property for important public purposes, such as roads, prisons and utility rights-of-way. It's a long-standing tool used by government, but it is limited by the Fifth Amendment which says private property can be taken only for "public use" and only if the owners are justly compensated.

In recent years, the meaning of public use has expanded to include revitalization initiatives and to allow for construction of quasi-public facilities like football and baseball stadiums. Critics say the New London ruling has opened the floodgates for virtually any economic development project, even those whose only purpose is to maximize land use to increase tax revenues.

In fact, that's been happening for years. Among the stories on the "60 Minutes" show that incensed Wolkins: Lakewood, Ohio, was forcing a retired couple to sell a beautiful home looking over the Rocky River — one of 55 such houses targeted — to make way for a high-end condo development and shopping mall.

In April 2003, the Institute for Justice, a libertarian law firm, issued a report on the use of eminent domain in the 50 states from Jan. 1, 1998 through Dec. 31, 2002. The report concluded that eminent domain had become a tool of choice for projects that could only loosely be described as "public use," such as corporate relocation incentive packages.

"Indiana is growing more aggressive in its use of eminent domain to benefit private parties," the report noted. Examples included the condemnation of an unoccupied home — after the owner refused to sell — to make way for housing redevelopment project in the Fall Creek neighborhood in Indianapolis and the acquisition of a private parking garage in downtown Indianapolis to accommodate another private developer.

Wolkins said it's unlikely his committee would choose to impose an outright ban on commercial use of eminent domain, which some states are contemplating, but will undoubtedly want to tighten up Indiana law. As it now stands, government can take property for private development here if it meets the definition of blighted, a slightly different scenario than the New London and Lakewood cases whose main purpose was generating more tax dollars. Among other objectives, Wolkins would like to guarantee property owners receive a premium price when forced to sell for economic development.

Not everyone thinks change is necessary. Local officials cite eminent domain as their best tool for cleaning up run-down areas that property owners have refused to maintain.

The discussion before the committee will boil down to this: When does public interest trump property rights? Wolkins intends to have an answer in time for the 2006 session.

Daily Democrat: www.decaturdailydemocrat.com

Andrea Neal, former editorial page editor of the Indianapolis Star, is adjunct scholar and columnist with the Indiana Policy Review Foundation: aneal@inpolicy.org