Now that a small group of 10 homeowners and one business has filed a federal lawsuit to try to block the proposed $4.2 billion Atlantic Yards project in Brooklyn, it's more important than ever to separate reality from spin in the debate over how, when and why governments use eminent domain - the power to force people to sell their property to the government in order to make way for economic development.
Ever since the Supreme Court used a 2005 Connecticut case, Kelo vs. New London, to reaffirm a centuries-old practice in which governments can order the purchase of property in blighted areas through eminent domain and transfer it to private developers, opponents of eminent domain in Brooklyn and elsewhere have tried to paint a picture of state and local governments rampaging across the American landscape, seizing people's homes willy-nilly in thousands of cases and transferring the property to favored new private parties in secret, semicorrupt deals.
A conservative Washington-based legal group, the Institute for Justice - which brought, and lost, the Kelo case - says it has documented 10,282 wrongful uses of eminent domain between 1998 and 2002. This year, the institute claimed that after the Kelo decision, local governments "threatened eminent domain or condemned at least 5,783 homes, businesses, churches and other properties."
Those would be troubling statistics - if they were accurate.
In reality, according to Profs. Robert Dreher and Johan Echeverria of Georgetown Law School, the Institute for Justice's alarming numbers are little more than a quick-and-dirty count of media reports in which officials said eminent domain might be used. About 90% of those 5,783 cases were such speculative musings, and the group made no attempt to count when a study or public statement led to no further action.
The institute's statistics also are wildly inflated, counting individual properties in one project as separate uses of eminent domain. The alleged 10,000 cases of eminent domain actually involved only 222 projects, according to the Georgetown profs.
The fact the institute cooked the numbers comes as no surprise; the group has been pursuing a hard-right ideological agenda ever since opening its doors in 1991. The group's founder, Chip Mellor, has waged bare-knuckled legal battles for years to defend agencies accused of discrimination and trying to kill affirmative action. Mellor once worked for Clarence Thomas (whom he calls "a mentor").
The institute has gone on to lead high-profile fights to replace public education with a privatized voucher system and block the ability of unions to organize workers. And Mellor's group operates something called the Castle Coalition (as in "a man's home is his castle") - which masquerades as a grass-roots group battling eminent domain but actually is one more arm of the group, dedicated to the overall mission of protecting the conservative big-business interests who fund the institute.
Here in Brooklyn, groups like Develop Don't Destroy Brooklyn and bloggers who support the group's lawsuit against Atlantic Yards often post items from the Institute for Justice, including links advertising T-shirts the group sells. And they parrot the institute's fictitious claim that eminent domain is out of control.
The reality is that the Supreme Court has recognized eminent domain to be a crucial, seldom-used tool that enables local governments to arrange projects like Atlantic Yards that benefit the many and deliver "just compensation" to the few for their property.
New York NY Daily News: http://www.nydailynews.com
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