Walls built against eminent domain: Chicago (IL) Tribune, 11/22/05

High court ruling causes backlash

By Tim Jones

The goodbyes are posted in front yards up and down Floralea Place [in Sunset Hills MO], declaring in bright orange and white lettering, "We're ready to go."

But except for a few people like Christopher McGee who, regrettably, moved out and is now paying four mortgages on two homes, no one is going anywhere because the plan to bulldoze about 250 homes in this tattered neighborhood and build a shopping mall has fallen apart.

"It's an ugly situation," McGee said.

The bitter aftermath of a deal gone sour in this St. Louis suburb has added to the rapidly growing national backlash against the decades-old, local government practice of eminent domain — condemning homes to make way for new development. In the five months since a divided Supreme Court allowed a Connecticut city to seize property for a private development, several states have lined up to ban or restrict the practice and dozens of others are expected to follow suit early next year.

The court effectively preserved the legal status quo, but the opinion — at least for the moment — has had the effect of a powerful landmark decision. Just as court opinions legalizing gay marriage galvanized a national movement claiming to protect the sanctity of marriage, the high court's eminent domain ruling has ignited a political movement and a boatload of litigation championing the sanctity of private property.

Ohio Gov. Bob Taft last week signed into law a 14-month moratorium on the use of eminent domain when the primary goal is economic development.

Legislatures in Alabama and Texas have also banned the practice, and Michigan is considering a constitutional prohibition against seizing private property for private economic development. A measure was introduced this year in the Illinois General Assembly to prohibit eminent domain for economic development, unless approved by the legislature. But the bill failed to pass before the legislature adjourned.

Angry about a plan to invoke eminent domain to build a gas station in their neighborhood, voters in a St. Louis community ousted their alderman in a recall election in September.

And in Washington, a congressional committee approved a measure that would strip all economic development-related federal dollars from any city or state that uses eminent domain to transfer private property to another private owner.

Issue has `legs'
"It's a hot-button issue and it's a non-partisan issue. And it's got legs," said Larry Morandi, an analyst at the National Conference of State Legislatures.

"So many people see this as `no house is safe.' . . . It is a gut issue," Morandi added.

Typically, eminent domain battles have been framed in David versus Goliath terms — homeowners battling private developers and city councils.

But people familiar with the workings of local government emphasize that eminent domain should not be viewed in such black-and-white terms. Sometimes the development tool is abused, ignoring the wishes of homeowners. Other times it is heralded as a vehicle to revive economically troubled areas, to the benefit of entire communities. In Sunset Hills, a southwestern suburb of St. Louis, the vast majority of homeowners in the tired neighborhood along Interstate Highway 44 supported the demolition of their modest, one-story wooden homes.

"It was a good deal for me," said Dennis Smith, a salesman. "But right now the neighborhood's a mess and everybody's in limbo."

Financing for the demolitions and creation of the new shopping mall did not materialize, so the project has fallen apart, though it's possible that it could be revived at some point. Finger-pointing is in abundance. Some residents blame the city. Others blame the developer, Novus Development Co., which in turn blames the owner of a nearby shopping mall for filing lawsuits against the project.

Phillis Hardy, a local accountant who said she had no intention of moving, is delighted the deal collapsed.

"You reach a point where the area becomes saturated with retail and there aren't enough homes," Hardy said.

Blame is not on the mind of McGee, a 27-year-old junior high school science teacher who has four mortgages — one on each of his two homes, plus a bridge financing loan and a home improvement loan. "At the end of the month I have $13 left after I have paid my [mortgage] obligations," he said.

"I don't think the blame can be placed on just one person," McGee said, pointing to the developer, the city and the poor communication all around.

Missouri Gov. Matt Blunt has appointed a task force to address eminent domain issues. But a one-size-fits-all answer does not seem imminent. The U.S. Supreme Court was sharply divided, with the majority saying promotion of "economic development is a traditional and long accepted governmental function." But Justice Sandra Day O'Connor, in her dissent, warned that the "specter of condemnation hangs over all property."

"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," O'Connor wrote.

Eminent domain supporters warn that prohibiting condemnations for private development will provoke more urban sprawl and the economic decline of established communities.

Reversal in Michigan
In Michigan, where the state Supreme Court authorized in 1981 the demolition of more than 1,000 homes, businesses and churches to clear the way for a General Motors assembly plant in Detroit, legal opinion is shifting. The court last year effectively reversed itself by forbidding condemnations that transfer property to private owners for economic development.

The issue is expected to come into sharper focus in January, when most state legislatures come back into session, Morandi said.

Paul Farmer, executive director of the Chicago-based American Planning Association, welcomes a legislative review of eminent domain "so that the potential for abuse can be minimized." But he also worries that "laws will be enacted in kind of a knee-jerk fashion, laws that go beyond what is necessary."

Chicago Tribune: www.chicagotribune.com