By Jack Venable
To own property is a fundamental American right. Whether it's a home or business, farm or office building, the ability to improve and sell property is the basis of our economy and country, enshrined in our Constitution's Fifth Amendment. In that same amendment there one exception to ownership: eminent domain.
Used properly, eminent domain — taking property for public use — makes sense. If an interstate highway needs to be built, houses and farms often need to be purchased by the government for the right of way. Whether an owner wants to sell or not is outweighed by the public need, and as long as people get fair market value for their homes and land, the greater good is served. Most Americans understand and support this process.
There is a trend in communities across the country for local governments to use eminent domain not for public use, but to aid private economic development projects. Using eminent domain for private concerns is not without precedent in Alabama; condemning land for major projects like railroads and dams has been instrumental in our state's economic development.
Yet now in the name of revitalization and increasing the tax base, governments across the country are using eminent domain to help developers and businesses for things like malls, factories and office parks. Rather than let the market decide the value and control of property and respecting the rights of citizens, local governments now are deciding who should own what on an increasing basis.
In a recent 5-4 ruling, the U.S. Supreme Court upheld this expanded version of eminent domain. Ruling in a Connecticut case where the city of New London took a neighborhood of family homes for a private developer, the court broadened the constitutional meaning of "public use" to mean a "public purpose."
"Promoting economic development is a traditional and long accepted function of government," Justice John Paul Stevens wrote in the ruling. "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose."
The court ruling is wrong and sets a dangerous precedent for Alabama homeowners and farmers. Under the ruling, there is no stopping a local government from rewarding powerful businesses with tracts of land taken from less well-heeled working people. Under this ruling, if you are less wealthy you have less property rights, and that is not the American way.
In a dissent, retiring Justice Sandra Day O'Connor recognized the pitfalls of expanded eminent domain. "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded," wrote Justice O'Connor. "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."
There is a remedy to the court's ruling. The justices put the responsibility of defining eminent domain squarely on the shoulders of the states. I introduced legislation in the 2005 regular session to define what is acceptable for eminent domain and clarify procedures for local governments. The bill made it harder for government to forcibly transfer property from one private owner to another, specifically prohibiting a local government from taking someone's property for a retail development.
The eminent domain bill was a priority of the House Democratic Caucus and passed the House on a 90-1 vote, but the bill got held up in the Senate. I have received encouragement from Gov. Riley and other members of the Legislature to reintroduce the bill; with broad bipartisan support it could come up in the upcoming special session.
Whenever we can get the stronger eminent domain bill before the Legislature, I believe the court's ruling will provide added incentive to get a version of the bill passed.
There is nothing wrong with local governments promoting economic development; it is their job. Yet local governments would be wise to use great restraint in using eminent domain to favor private enterprise. Understanding the difference between public and private use should give clear guidance on its proper use.
Montgomery Advertiser: www.montgomeryadvertiser.com
Jack Venable (D-Tallassee) represents District 31 in the Alabama House of Representatives
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