Eminent Domain Abuse

From: Dan Clore (clore_at_columbia-center.org)
Date: 02/25/05 

Date: Thu, 24 Feb 2005 23:17:19 -0800

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*****

Libertarian speaker decries government abuse of eminent domain
2005-02-24
By Clay Flaherty
Athens NEWS Campus Reporter

The head of Ohio's Libertarian Party warned a small group of
Ohio University students Monday about the government's
excessive use of eminent domain to take over private properties.

"Ohio is known for the worst eminent domain abuses in the
country," Robert Butler, executive director of the
Libertarian Party of Ohio, declared during his talk in
Bentley Hall. "Most people don't realize the government can
take away their home until it's too late."

Eminent domain is a legal process that allows the government
to take privately owned land for public use, or for private
uses deemed in behalf of the public welfare. It has been
used, for example, to condemn blighted neighborhoods in the
way of redevelopment, or to take properties in the way of
highways or utility lines.

The U.S. Supreme Court earlier this week heard arguments in
an eminent-domain case involving residents of a New London,
Conn., working-class neighborhood who are trying to keep
their homes, according to an article Wednesday in The New
York Times. The city wants the land for an economic
development project.

Butler acknowledged Monday evening that the government may
have legitimate reasons to exercise eminent domain, such as
the construction of highways and utility lines. However, he
also cited incidents where the "public good" is not being
served with eminent domain.

"Where we start to disagree (with the use of eminent domain)
is when a private developer starts to profit from your
land," he said.

Butler cited the cities of Norwood and Lakewood, Ohio, as
examples of recent eminent-domain abuse. Butler said that
the government, in return for increased tax revenue, takes
away land from citizens and then hands it over to private
developers, under the guise of "improving it for the public
good."

Butler said that the government's first step in exercising
eminent domain is having property condemned or declared
"blighted." Property that does not meet certain criteria
laid down by local government can receive this designation.
The government is then allowed to seize the land in order to
"improve" it, he said.

"The way the government improves the neighborhood is by
taking your house away and giving it to someone else,"
Butler said.

He said homes in Lakewood were declared blighted for having
only one bathroom or having an unpaved driveway. "Its scary
to think about," Butler said.

Dan Corbett, president of the Ohio University Libertarians,
said he agreed with Butler's analysis of eminent-domain
abuses. "Eminent domain had its place, but when you use it
for private development, it seems like a really thin
argument," he said.

Corbett argued that there are "no incentives for (private
corporations) to use the land responsibly" once they have
been given a "free tab by the government."

The fight against eminent-domain abuses, Corbett continued,
has elements of class struggle. "It's poor people that are
going to lose their homes," he said. "There's definitely
class components in the argument."

During his speech, Butler talked about organizations that
help fight eminent-domain abuse, including the Institute of
Justice, a civil-liberties law firm that has fought eminent
domain abuses across the country. "They protect people from
eminent-domain abuse -- that is their specific goal," Butler
said.

Founded in 1991, the institute seeks to "advance a rule of
law under which individuals can control their own destinies
as free and responsible members of society," according to
group's Web site.

The Institute for Justice played a vital role in helping to
fight eminent-domain abuses in Lakewood and Norwood. On Feb.
11, 2005, the institute filed an appeal with the Ohio
Supreme Court to protect homes in the city of Norwood, which
were seized with the use of eminent domain, and given to a
private developer in order to expand his nearby mall.

Butler also talked about the Castle Coalition, an
organization that allows activists against eminent-domain
abuse to "take matters into their own hands." According to
its Web site, the Castle Coalition serves as an organizing
force that allows activists "to network with each other and
give support, ideas and advice."

BUTLER ALSO TOUCHED on the difficulties facing third-party
initiatives in Ohio. According to Butler, it's nearly
impossible to gain recognition as a minor political party in
Ohio. "Its easier to be recognized as a political party in
Iraq than in Ohio," he said.

He added that Ohio is out of touch with its neighboring
states in terms of political awareness. According to Butler,
Indiana has had automatic ballot recognition for Libertarian
candidates for 10 years, and that other states, including
Michigan, also have recognized the party's political validity.

However, Butler expressed optimism concerning future efforts
by the Libertarian Party of Ohio, especially in Athens. "The
Libertarian presence at Ohio University has grown
significantly in the past few years," he said in his press
release. "I'm glad to have this opportunity to speak, and we
hope this will lead to the official formation of an Athens
County Libertarian Party."

*****

Land grab feared in area towns
Eminent-domain case eyed closely
Home News Tribune
02/24/05
STAFF REPORT

Mary Berry's two-story home on Camner Avenue in Franklin is
in the area designated for the Gateway Shopping Center. In
order to make way for the anchor store in the center -- a
supermarket -- the township rezoned her block.

But rezoning or not, Berry is defiant about selling her
home. No price will do, and even if the township is forced
to acquire it through eminent domain, she will fight.

"I've worked very hard, to save money to get this house,"
Berry said. "I've put my life into this, to have something
to call my own.

"There are no words to describe how I feel," she added.

Her position is the same as that of Susette Kelo and six
other property owners in New London, Conn., who are
protesting that city's effort to seize their property to
make way for a project that would include a hotel,
conference center, offices and a marina along the Thames River.

The New London property owners have taken their plea to the
U.S. Supreme Court, which heard arguments Tuesday in a case
that has

vast implications throughout Central New Jersey.

Snags with the redeveloper in the Franklin project may force
the township to reconsider using eminent domain. But for
now, Berry just wants some peace of mind.

"I'm sick and tired of this hanging over my head day and
night," Berry said. "I've lost sleep, lost weight over this
issue."

Franklin business owner Courtney Throckmorton has signed
himself on as a friend of the court in the Kelo vs. New
London case. The owner of Somerset Transmission on Route 27
says the threat of eminent domain in the corridor is like
sentencing the property owners to death row.

"The threat of eminent domain hangs over us," Throckmorton
said. "It has deterred business and property owners from
investing in their properties."

Throckmorton hopes a Supreme Court decision in favor of the
Connecticut property owners will influence the decisions
made in Franklin.

"I'm hoping the court will decide that the use of eminent
domain is a violation of constitutional rights,"
Throckmorton said. "I believe it is."

The court on Tuesday, however, seemed to disagree with him,
although no ruling has been made.

Justice Ruth Bader Ginsburg said New London is a "depressed
community" trying to generate jobs. Justice Sandra Day
O'Connor questioned whether judges should "second-guess"
local officials. Justice David Souter suggested a city
should have broad discretion to seize property. And Justice
Anthony Kennedy asked how courts should distinguish between
projects that involve only private economic development and
those that could benefit neighborhoods that are not blighted.

The questions trouble business owners and residents in South
Amboy, Carteret, Highland Park, and other Middlesex County
towns where eminent domain issues have surfaced.

The City Council in South Amboy recently declared an 84-acre
tract of waterfront land in need of redevelopment, hoping to
incorporate the area into the city's major waterfront
overhaul. In the area, which lies next to the newly built
Lighthouse Bay town-house development, the city will likely
build a public marina with boat slips, a fishing pier and
walkways.

But the process has prompted a challenge from at least one
of the property owners. Arthur Burgess, a lawyer for Amboy
Aggregates, the sand-mining business that operates on part
of the property, said he is planning a lawsuit to contest
the city's claims that the property qualifies for
governmental seizure. The city justifies its actions using a
report that argued that by continuing to use the land for
dredging operations, Amboy Aggregates presents "an
incompatible land use," and that the land should be
comprehensively redeveloped.

Amboy Aggregates President Richard Rosamilia argued that the
continued functioning of his business should contradict the
city's argument that the land is underutilized.

"I live in the real world here," he said. "It may not be
pretty to have a sand plant in the middle of a developing town."

The logical extension of the city's argument, he believes,
would be to declare houses in need of redevelopment if
someone could build more expensive houses in their place.

"The law with respect to the taking of private property for
a public purpose, I think, is being abused," Burgess said.
"I think that there's a trend toward using that vehicle to
deprive property owners of their rights under the
Constitution, and that's what the court's going to be
looking at very closely."

Burgess, who attended Tuesday's Supreme Court session, said
the recent uses of redevelopment law to seize property
should put citizens on alert.

"You could take anybody's property, and it's the problem,"
he said. "And what's happening in South Amboy, it's just the
beginning."

Carteret business owner *** Brown has been following the
New London case closely.

Eminent domain in the borough could affect his family's
105-year-old business.

"We've been watching what's been going on there," said
Brown, who co-owns Mark Brown Hardware at 68 Roosevelt Ave.
"We're hoping for a good outcome."

Under the Gateway at Carteret redevelopment project,
developer Kaplan Cos. plans to demolish 76 buildings along
lower Roosevelt Avenue from Terminal Avenue to Edwin Street
in the borough's Chrome section. Kaplan Cos. plans to build
about 300 condominiums, town houses and lofts as well as
commercial businesses on the 8.5-acre site.

Redevelopment is needed in the Chrome neighborhood, Brown
said, but he feels the developer is profiting more than the
residents and business owners.

"Eminent domain is supposed to be for the good of the
people, not for the good of the builders," Brown said. "The
area needs redevelopment, but the borough has done nothing
but let it deteriorate for 25 years now. Eminent domain is
supposed to help those areas, not come in and build condos."

When the redevelopment plan was passed, Brown said, he was
told the borough would help him relocate his business.

"Nothing has been done, absolutely nothing," he said.

Brown's store is a fourth-generation business that employs
23 people, some of whom have worked there for 45 years. So
Brown said he plans to fight eminent domain tooth and nail.

"It's rather cruel what they're doing," he said. "We will
fight this."

Redevelopment efforts in Highland Park have stirred the
passions of several business owners along Raritan Avenue who
fear the borough will force them from their properties.

Among them is Donald Ubry Jr. His automobile-repair shop,
which has been family owned and operated at its Raritan
Avenue location since 1958, is one of the properties
included in the borough's redevelopment plan.

Ubry is candid with his thoughts on condemnation.

"It really sucks," Ubry said. "We'd probably be bankrupted
by it."

In recent years, the Ubrys have received state grants to
remove underground gasoline tanks and clean up associated
environmental contamination.

But the grants were awarded on the condition that the Ubrys
remain on site for 15 years. Otherwise they'll be forced to
repay the state the $300,000 in cleanup costs. Ubry says any
compensation from the borough would probably be swallowed by
that and the property's outstanding mortgage.

Highland Park resident George Valenta III manages AA
Discount Rentals on Raritan Avenue, another property
included in the redevelopment plan.

His suspicions of eminent-domain abuse led him to found
Highland Park Citizens for Property Rights Protection.

Valenta organized a local protest on Monday to coincide with
demonstrations nationwide on the eve of the Supreme Court
hearing.

The original purpose of eminent domain has been diluted by
condemnation for economic development, Valenta said.

"Roads, bridges, I can respect that. But for the corrupt
politicians to take it away from one individual and give it
to another individual is wrong," Valenta said. "You're never
safe in your home. Even if you've paid it off, you're not safe."

Valenta said he's been keeping tabs on the Supreme Court
hearing.

"I'm hoping it'll go our way," Valenta said. "As long as you
pay your taxes you should never have to give up your property."

Contributing: Staff writers Dina Guirguis, Arielle Levin
Becker, Kristin Boyd, Kathleen Sutcliffe, Gannett News Service

*****

Supreme Court Hears Case Pitting Property Rights Against
Redevelopment
By Jan Crawford Greenburg
Chicago Tribune

RISMEDIA, Feb. 24 -- (KRT) -- With defiant homeowners
looking on, Supreme Court justices grappled Tuesday with
whether a local government can condemn a person's home or
business so the land can be redeveloped for more lucrative uses.

The controversial case pits the rights of property owners
against the efforts of government officials to revitalize
depressed communities, and the justices appeared divided in
hourlong arguments on which side of the issue they fall.

Their decision could have far-ranging implications, and,
reflecting the high stakes, the courtroom was packed with
lawyers and government officials, as well as the group of
homeowners from New London, Conn., who are at the heart of
the case.

Lawyers for the homeowners say the case is the most
important property rights dispute to reach the court in 50
years, because it could limit the government's ability to
condemn property for economic redevelopment under its power
of eminent domain.

Governments have relied on that power to condemn land for
traditional public uses, such as railways, roads, public
utilities, schools, waste treatment plants and the like. But
they also have used condemnation powers to assemble large
parcels of land for redevelopment -- be it for an automobile
manufacturing plant or a speedway or a baseball stadium.

A lawyer for New London argued that state and local
governments should be able to condemn property if its
redevelopment would substantially enrich the public coffers,
even if the property were not blighted or neglected. The
justices quickly jumped in with questions.

Justice Sandra Day O'Connor asked a lawyer for New London,
"For example, a Motel 6. The city thinks it should have a
Ritz-Carlton, to have higher taxes. Is that OK?"

"Yes, Justice O'Connor, that's OK," attorney Wesley Horton said.

"You can take from A and give it to B, if B pays more in
taxes?" a dubious Justice Antonin Scalia asked.

"If it's a significant amount," Horton said.

But a lawyer for the homeowners argued that state and local
governments need a better reason than that. He said the
governments have gone too far under the Constitution's 5th
Amendment.

The 5th Amendment provides that no private property shall be
"taken for public use, without just compensation." At issue
in the case is whether New London's proposed private
economic redevelopment, designed to add jobs and increase
tax revenue, amounts to a "public use" that would permit
government officials to take a person's property after
paying its fair value.

The case came about in 1998, when the city of New London
approved a redevelopment plan for 90 acres of land located
next to a new Pfizer Inc. pharmaceutical research facility.
The city, looking to create jobs and expand its tax base,
planned for hotel, housing and office developments, as well
as open space, on the land.

To put its plan in motion, the city created a development
corporation to buy the necessary plots from homeowners and
gave the corporation the power to condemn land and force
homeowners who were refusing to sell to do so. The
corporation then was to lease the land to a private
developer for $1 a year for 99 years.

But some homeowners, including one woman who has lived in
her home since her birth in 1918, put up a fight and
challenged the city's right to acquire their land. They
argued that governments could only condemn land for more
obvious public uses, such as for utilities or new roads or
schools or firehouses -- not for private redevelopment.

"Eminent domain power is broad, but there are limits,"
attorney Scott Bullock, representing the homeowners, told
the justices.

He said that if New London prevails in its efforts to
condemn the houses and turn the neighborhood into an office
park, government officials would be able to take a person's
property whenever they identify a more lucrative use that
would expand the tax base.

"Every home, church or corner store would produce more tax
revenue and jobs if it were a Costco or a shopping mall,"
said Bullock, a senior attorney at the Washington-based
Institute for Justice, the libertarian group that has led
the fight against the use of eminent domain.

Several justices appeared skeptical, although the ultimate
decision was difficult to gauge. Chief Justice William
Rehnquist, who is suffering from thyroid cancer, was absent,
as was Justice John Paul Stevens.

O'Connor, as the most senior justice on the bench, took over
the helm Tuesday. She said Stevens, who divides his time
between Washington and Florida, had missed his flight back
to D.C., but that both Stevens and Rehnquist would read
transcripts and participate in the decision in the case.

Of the justices who asked questions, Justices Ruth Bader
Ginsburg and David Souter appeared most sympathetic to New
London's position.

"You're leaving out that New London was in a depressed
economic condition," Ginsburg told Bullock. "The critical
fact, on the city's side, at least, is this was a depressed
community, and it wanted to build it up to get more jobs."

Souter also pressed Bullock throughout his argument,
suggesting that the redevelopment amounted to a legitimate
public purpose because it would boost the struggling city's
future. But Scalia provided a strong counter argument to
Souter. He made clear he agreed with Bullock and believed
that New London had gone too far.

"What this lady wants is not more money. No amount of money
could satisfy her. She lived in this house her whole life,"
said Scalia, speaking about 86-year-old Wilhelmina Dery, one
of the residents. She and the other homeowners, including
Susette Kelo, see no reason they should sell simply for
private redevelopment, Scalia said.

But Horton said the government's redevelopment efforts were
just as compelling as efforts to condemn land for a railroad
right of way.

"If a person is not able to get basic services because the
town can't afford it, that's just as important as the trains
running on time," he said.

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***** 

-- 
Dan Clore
Now available: _The Unspeakable and Others_
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Dan Clore
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