Eminent domain changes sought: Wilmington DE News Journal, 8/28/07

Legislators' push is response to Wilmington property plan
By Adam Taylor

Two Delaware lawmakers intend to spend the next four months crafting a state law designed to limit governments' ability to abuse their powers of eminent domain.

Wilmington Democratic Rep. Dennis P. Williams and Millsboro Republican Rep. Greg Hastings made the announcement Monday, four days after Wilmington City Council approved an urban renewal plan that allows the city to condemn as many as 62 properties on the Christina Riverfront. The city could sell the properties to private developers in what would be the next step in a decade-long effort to transform the area from an industrial wasteland to a neighborhood full of homes, shops and businesses.

It is uncertain whether Williams and Hastings can come up with a law that would be passed in time to help the 50 people who own the 62 properties in southern Wilmington, although the two said that is their intent.

"We'll have to speak to the Legislature's attorneys to see what we can do," Williams said. "The issue in Wilmington should have been tabled. There are 38 businesses that are functioning down there and are not blighted. It's just not fair."

Ed Osborne of Osborne's Auto Service on A Street, directly across the street from the $200 million Christina Landing development, said he hopes the law can help the owners on the city's new property acquisition list.

"It's better than nothing," he said. "I would have liked to see them go into a special session to try to help us."

Hastings said Republicans and Democrats from all parts of the state should be concerned about the issue. He said eminent domain cuts through party ideology and across geographic boundaries.

"A lot of people see this as a Wilmington matter, but it's not," he said. "This is an issue of right and wrong. The ability to own property, and the self-determination to do with it as you see fit, are among our most basic of rights. Citizens should not have to fear that their land will be taken because government officials believe it can be put to a more lucrative use by someone else.

"I've never liked the aspect of government being a bully," he said.

Precedent for using economic development to justify invoking eminent domain was set in 2005. In Kelo v. New London (Conn.), the U.S. Supreme Court found the communitywide benefits of taking property for that reason constituted a "public use" along the same lines of taking property to build roads or schools. The case pitted homeowner Susette Kelo and 114 other property owners against New London's government, which wanted to use the properties in a larger redevelopment plan. Pfizer Corp. had built a large research facility near the properties and the city wanted to keep up the momentum from that project.

Forty-two states passed eminent domain-reform laws after the Kelo decision. Delaware was the first. But Williams and Hastings said the Legislature rushed the law onto the books. The law essentially said the "public use" for the property must be announced six months before condemnation proceedings begin.

The Institute For Justice, a nonprofit group that litigated the Kelo case and now helps people across the country in similar situations, gave Delaware's law a "D-minus" in its report card for the 42 new laws, saying, "Until the legislature enacts substantive reform aimed at a limited definition of 'public use' and forbidding condemnations for private use, Delaware home and business owners will remain very much at risk for eminent domain abuse."

"They get some points for being first, but the definitions in the law are as vague as any I've ever seen," said Steven Anderson, director of the Castle Coalition, the Institute for Justice's community organization wing. "They could be unconstitutionally vague."

Anderson said Delaware lawmakers should specify the language in the state's Slum Clearance Redevelopment Act, particularly when it comes to what conditions must be present for a property to be considered a blighted area. That's the law Wilmington officials used to justify the changes that could lead to condemning the properties in southern Wilmington.

Wilmington officials have said repeatedly that condemning properties will be a tactic of last resort. Eminent domain powers will be invoked only if negotiations between the city and the property owners fail, city Communications Director John Rago said. The city doesn't know how many properties on the list of 62 it will even try to take. Officials said all the owners will get fair market value for their property.

Jeff Flynn of the city's economic development office has said parts of the plan, including a new street system and the construction of a wetland that would help with drainage and flooding problems in Southbridge, clearly constitute public uses.

House Speaker Terry Spence, R-Stratford, said he will work with Hastings and Williams to make sure a new law gets passed soon after the new legislative session begins in January.

"We didn't get the job done two years ago, and Wilmington's recent actions have shown we need to fix this," Spence said.

Wilmington DE News Journal: http://www.delawareonline.com