FYI

Jack
Venrick

Enumclaw,
WA

http://www.citizenreviewonline.org/may_2003/eminent.htm

Eminent domain and private gain -
A report claims that 10,000 properties have been seized by cities for private
developers.

By Alexandra Marks
|

Staff writer of The Christian Science Monitor

5/10/03

PORT CHESTER, NEW YORK –
Bill Brody thought he was set for life. He'd bought and renovated four
buildings on South Main Street in this struggling New York suburb and was
successfully renting them out.

Then he was informed the village was taking his property - all of it. And
because he missed a small, legal notice in the paper, he even lost the right
to fight the decision.

The village had simply declared
eminent domain, so that another private developer could build part of a Stop
& Shop and parking lot where Mr. Brody's commercial buildings sat.

"It's ludicrous," says
Brody. "If it was for a road or a school or a highway I wouldn't
bother."

But since the village was taking
his property only to give it to another private developer, Brody decided to
take it to court.

The Constitution does give local
governments the right to condemn property through eminent domain for
"public use" if the owner is compensated. But in the past five
years, both state and local governments have taken or threatened to take more
than 10,000 homes and small businesses such as Brody's to turn them over to
private developers, according to a report compiled by the Institute for
Justice, a nonprofit advocacy law firm in Washington.

The local governments contend
they're creating bigger tax bases and more jobs to help the local economy.
That's the "public use." But to critics it's an unconstitutional
abuse.

"Practically every house in
the entire country would produce more jobs and taxes as an office building,
and everybody's small business would produce more jobs and taxes if it were
removed and turned into a Costco," says Dana Berliner, a senior attorney
at the Institute for Justice. "If that's all it takes, then your house
or business can be up for grabs as soon as a some
private business interest takes a fancy to it."

The increase in the use of eminent
domain for private entities has created a groundswell of opposition from New
York and Detroit to California.

The Institute for Justice's report
documents dozens of instances of apparent abuse where states and local cities
and towns put the interests of individual developers over longtime residents.
For instance:

• In Atlantic City, an
entire black middle-class neighborhood was condemned and destroyed to make
way for a tunnel to a new casino that was never built.

• Bremerton, Washington
removed a woman in her 80s from her home of 55 years for the claimed purpose
of expanding a sewer plant, but gave her former home to an auto dealership.

• West Palm Beach County in
Florida condemned a family's home so that the manager of a planned new golf
course could live in it.

Many individuals are fighting the
practice and the courts, which used to routinely rubber stamp local
condemnations, are responding.

In 40 percent of the challenges to
eminent domain brought between 1998 and 2002, courts sided with the original
landowners. Six state legislatures have passed bills increasing protections
for people threatened with eminent domain. Eleven others are considering such
bills, including New York.

The practice of eminent domain has
been abused throughout US history. When the railroads and many of the
nation's highways were built, landowners were often told their properties
were condemned, given a dollar and told to go to court if they wanted their
"just compensation." But even using such high-handed tactics, most
eminent-domain condemnations were used for clearly delineated public
purposes.

In the early 1950s, a landmark
case changed that. Washington, D.C., wanted to redevelop a rundown part of
town. So it declared eminent domain and condemned the property by arguing
that it constituted a public use by getting rid of the "blighted"
area. The Supreme Court upheld the notion that it's a public good to get rid
of blight, but made no determination one way or the other on the appropriateness
of handing the property to private developers.

"The Supreme Court gave
'public use' definition by saying it had to be of public purpose," says
Veronique Pluviose-Fenton, an attorney with
National League of Cities. "Redeveloping brown fields can be seen as having
a public use because it gets rid of an environmental hazard."

It wasn't until the booming 1990s
- when real estate prices soared - that the practice of condemning property
for private development really took off.

According to the Institute for
Justice report, local governments went from condemning blighted areas to
applying the practice to rundown neighborhoods. Then it began to be condemn properties in areas that looked just fine.

In Lakewood, Ohio, for instance, a
whole neighborhood of colonial homes was recently deemed "blighted"
because the backyards were too small and the homes didn't have two-car
garages. The city is turning the property over to private developers to build
upscale condominiums and retail space.

"Things have gotten worse as
the word spread among businesses that they can acquire land without having to
go through a bidding process," says Gideon Kanner,
a professor emeritus at Loyola Law School in Los Angeles and expert on the
issue of eminent domain. "They can overcome opposition and force their
way into communities that don't want them."

The National League of Cities' Ms.
Pluviose-Fenton wouldn't comment on any individual
case. But she admits there have been abuses. But in general, she insists the
power of eminent domain is used responsibly and that the courts are there to
act as a check and balance.

"I think local governments
are keenly aware that that kind of abuse gets the attention of people in
Washington who are, at a moments
notice, ready to pass legislation that would restrict local authority."

Lawmakers in New York State are
considering a bill that would at least require cities and towns to notify
people like Mr. Brody that they're taking their land so that they can at
least mount a legal fight.

Brody had wanted to challenge the
city's designation of the street as "blighted." Just a few years
earlier, it had spent a million dollars putting in new roads, underground
wires, and quaint 19th street lamps. It had assessed him almost $60,000 for
the upgrade. The street had a thriving, eclectic mix of antique shops, Latin
restaurants and commercial space when it was condemned.

Several property owners, in
addition to Brody, are challenging the city. But so far have had little luck
with the local courts. "I've never, never seen anything like this,"
says Mike Rikon, an eminent domain attorney with 33
years experience who is representing several Port Chester landowners.
"Since the beginning you could open the book and go down chapter by
chapter and point out the violations of the law."

Anthony Cerreto,
village attorney, wouldn't comment because the matter is in litigation.

Bill Brody has taken the case to
federal court. A hearing is scheduled on June 2nd.

"We have to get the
legislative and judicial branches to revisit this takings issue so it's a
little more friendly to the people," he says.
"Because that's what the laws are supposed to be there for - the people
not the government."

In accordance with Title 17 U.S.C. Section 107, any
copyrighted work in this message is distributed under fair use without profit
or payment for non-profit research and educational purposes only. [Ref.
http://www.law.cornell.edu/uscode/17/107.shtml]