Eminent Domain Battles Stew in D.C., Va.: Washington DC Express, 2/13/07

By Michael Grass

IN DEVELOPMENT AND PROPERTY RIGHTS CIRCLES, the 2005 Supreme Court ruling in Kelo v. New London, was a watershed legal moment. In it, the court upheld the way eminent domain can be used, allowing governments to seize private property for private economic development. And among property rights activists, the case was a call to action to push eminent domain reform on the state level.

In a crowded metropolitan region where construction cranes can seem to outnumber trees in some areas, the battle over private property and greater economic development is of particular interest. Big redevelopment projects in the District — like the Washington Nationals' new stadium and entertainment district in Near Southeast and plans to transform the shabby but busy Skyland shopping center in Ward 8, ... have been cited as examples of government overstepping its bounds to seize land to benefit commercial development. But as then-D.C. Mayor Anthony Williams told The [Washington] Post's Dana Hedgpeth in 2005: "If we want smart growth, we need this tool."

And the Supreme Court granted local governments that tool, stirring up much ire among libertarians and others who are against broader uses of such seizures.

Today in Richmond, state lawmakers are scheduled to consider three pieces of legislation that would tighten the definition of eminent domain, stripping local governments of the right to take private land for commercial development purposes.

The legislation is being pushed by the Institute for Justice, a libertarian public interest law firm that represented Susette Kelo in her landmark case against the city of New London, Conn. And if passed, the legislation would close a hole in the state constitution that allows the General Assembly to define what "public use" means, limiting the use of eminent domain use to transportation infrastructure, schools and other public facilities and excluding governments from seizing private property for private commercial development. The legislation, which has a companion bill that would enact the eminent domain changes immediately rather than waiting for a full constitutional amendment to be passed, is sponsored by Del. Robert Bell, R-Charlottesville.

There is a related state Senate bill that would place similar eminent domain limitations on the commonwealth's Housing Authorities Law.

Locally, the Institute for Justice cites the complicated 2002 sale of the Gates of Arlington (aka Buckingham Village) in Ballston as a prime example of a local government abusing its eminent domain powers. In 2002, the owners of the 465-unit rental community off Glebe Road and George Mason Drive announced their intent to sell the valuable property to Clark Construction for a massive redevelopment project. The county, with the preservation of low-income housing in mind, threatened to condemn the property if the owners didn't sell to the non-profit Arlington Housing Corp., which in the end assumed control of the historic multi-ethnic garden-style housing complex.

Since then, Arlington County has moved forward with a new redevelopment plan for the community. As reported by The Post's Maria Glod, last summer, a preliminary agreement was hashed out between the county and Paradigm Development Co. that would designate one section of the complex to be renovated and remain affordable housing while two other sections of the community would be demolished and replaced with apartments and townhouses in the $700,000 range.

Most recently, a March 1 deadline for a memorandum of understanding between Arlington County and Paradigm Development Co. for the area's redevelopment has been pushed back.

In the District, the next big eminent domain battle may involve the Capital City Market off Florida Avenue in Northeast...

Last year, then-Ward 5 Council member Vincent Orange pushed his plan through the D.C. Council to allow the use of eminent domain to redevelop the wholesalers market. The plan would turn the market into a giant mixed-used "New Town," complete with luxury condos, a hotel, YMCA and new retail while preserving part of the odorous, aging market for food-centric purposes.

Activists charge that Orange's plan, which was given preliminary approval in December during the D.C. Council's lame-duck session, would essentially force individual market vendors to unwillingly sell their property to another more powerful market businessman, Sang Oh Choi, who gave generous donations to Orange's failed mayoral campaign last year. Although the D.C. Council gave an initial OK to Orange's New Town proposal, if and when New Town is back on the D.C. Council's agenda, it is likely to face greater opposition this time around, according to a D.C. Council source.

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