Don't oversimplify the eminent-domain issue: Providence (RI) Journal, 5/15/06


By Daniel W. Varin

THE MAY 4 Commentary column "Time to reform eminent domain in Rhode Island," by Scott Bullock and Justin Gelfand, starts with the phrase "Your land is not yours anymore."

This preposterous claim probably achieved its objective: to scare the public. In fact, people who own land will continue to do so until they sell it, give it away, or fail to make their mortgage payments and lose it to foreclosure.

A very small percentage of all land sales are made through eminent domain. The chances of this happening to any of your readers are extremely small.

Eminent domain is one of three powers of state governments. States delegate this power to utility companies and to their local governments and other agencies, often for very limited purposes. But the Institute for Justice is trying to peddle the notion that this can happen to anyone at any time, for no clearly stated reason.

The U.S. Constitution says that private property shall not be taken for public use without just compensation. State constitutions include the same or very similar language. "Public use" has for a century and a half been interpreted as use by a government, not by private persons.

But this distinction has never been clear-cut. Land has always been acquired by eminent domain for roads although the roads' users are almost all private parties, in privately owned vehicles. The same blurring of meaning extends to "public" schools, in which private persons are educated, and to dams that produce water used by private parties to drink, cook, wash, water lawns, and fill swimming pools. Land for parks is often obtained by eminent domain although the benefits accrue almost entirely to private parties.

The meaning of "public use" has changed as the needs and concerns of society have changed. It was extended to permit acquisition of dilapidated or unsafe buildings, and entire blighted areas, more than a half-century ago, although most of the underlying land was later re-used for private purposes. Brownfields are another situation in which communities may wish to acquire abandoned property, achieve a private re-use, and thereby strengthen their tax base. In these and other instances, eminent domain has often been the only way to determine who owns a piece of land.

Use of eminent domain for economic development is a more recent event, but does not different greatly from the other uses accepted as "public" over the years. Yet it has aroused controversy and is often accompanied by significant pros and cons. The authors of the May 4 article cite the case of Joseph Mollo Jr., in Smithfield, a case that illustrates both.

The authors cite an important "con": loss of a profitable small business and the home of its owner. This is a real loss, and cannot be shrugged off. But the authors somehow forgot to mention the "pro" side: A private company has decided to build a private building on private property for its private business, and will employ 1,000 people to do.

The authors don't address that all communities must deal with the use of land and buildings as a never-ending process. Towns and cities must adapt their patterns of development to changing economies and changing site requirements, and must accommodate activities not thought of (or even existing) when earlier, now obsolete development occurred.

This is a difficult, often disruptive process, particularly in older industrial centers saddled with multi-story buildings in flood-hazard areas not accessible by arterial highways and closely surrounded by housing — buildings that have no place in economic development when traditional manufacturing has moved to other countries. Use of eminent domain is sometimes essential to the continued vitality of these communities, especially if they depend on property taxes for revenue to support such "public" services as police and fire protection.

The May 4 article's authors, despite their substantial failings, are correct in asserting that it is "[t]ime to reform eminent domain." Yet reforms must be carefully thought through, and their effects, both desired and undesired, must be identified. A blanket exclusion of the admittedly dangerous power of eminent domain is not reform.

Subjects for informed examination include careful definition of "public use," through determination of the kinds of public activities meant by the phrase; ensuring that the "just compensation" demand of both of our constitutions is achieved; placing the responsibility for decisions to use the power of eminent domain in elected bodies; and, most important, making use of eminent domain only as a last resort, after all other alternatives have been eliminated.

Providence Journal: http://www.projo.com

Daniel W. Varin is a former director of the Rhode Island State Planning Office