The uninvited bulldozer

Grass-roots rebellion challenges rule of eminent domain as local governments take private land and sell it to private interests.

Richard Beyer is visibly worried as he listens to the midnight darkness for any sound of bulldozers. With a city demolition permit now in effect, two neighboring homes he's labored to rebuild over the past six years could be toppled like dominoes at any time.

His words puffing into the frosty air, Mr. Beyer recalls how he and 12 other property owners in this 90-acre Fort Trumbull neighborhood in Connecticut received an offer they weren't supposed to refuse: sell their homes and businesses to the city to make way for a new hotel, private health club, and office space, or their properties would be seized.

"This is what you would see in the old days when the mafia existed," says Beyer, whose homes - for now, at least - have been spared by a temporary court injunction after a vigil by concerned property-rights advocates.

From Mississippi to Pennsylvania to New York, grass-roots groups like these New Londoners are staging urban rebellions against government attempts to seize property and hand it over to private businesses and developers.

While federal and state constitutions have provisions for governments to condemn property - with the provisio that owners are paid "just compensation" and that the land be taken only for "public use" - this power of eminent domain has traditionally been exercised for building roads, infrastructure, or utilities.

Increasingly, though, local governments have interpreted "public use" to include new businesses in areas that have been declared blighted. In 1954 and again in 1984, the Supreme Court ruled that deciding what constitutes a public use is not a judicial matter. "They said any conceivable public benefit is enough to justify expropriation of a single individual," says Richard Epstein, legal theorist and author of "Takings, Private Property and Eminent Domain" (Harvard).

Property-rights advocates contend that, so long as governments have the leeway to say they are acting for the greater good, and constitutional rights for individuals are no longer primary - they can always be trumped. The result, they say, is that governments often abuse eminent-domain powers to act as "super real-estate brokers" - facilitating cheap property grabs for the politically connected. Local governments counter that these eminent-domain takings are measures of last resort employed to serve communities by bringing in new businesses to broaden the tax base and encourage urban renewal in stagnant areas.

Disputes are nationwide

The old Italian neighborhood of Fort Trumbull, which has been leveled by bulldozers, leaving just a few homes standing unscathed next to the rubble, is just one of many battlefields between urban planners and property owners making national headlines.

* Last week the Illinois Supreme Court upheld seizure of an auto scrap yard to be used as parking space for a neighboring racetrack. The racetrack approached the Southwestern Illinois Development Authority (SWIDA) to seize the land after seeing an agency promotional brochure advertising that it would condemn land for economic development. The application form asked the racetrack to specify whether the condemnation was for a "public use" or "private use." SWIDA charged the racetrack a 6 percent commission for a "private use" condemnation.

* A judge struck down Atlantic City's attempt to seize two businesses and a home so casino-owner Donald Trump could build a limousine waiting area.

* In New Rochelle, N.Y., an entire neighborhood was due to be demolished for a 17-acre IKEA furniture store. IKEA recently pulled out after vigorous campaigning by citizens, but the mayor hasn't ruled out using eminent domain to bring other businesses to the area.

* Last November, a local group called Citizens for Property Rights persuaded 70 percent of voters in Baltimore County, Md., to repeal a law that gave expanded eminent-domain authority for economic redevelopment to the county government.

* A public outcry forced the mayor of Pittsburgh to abandon plans to remove 125 businesses in the downtown area to make way for a shopping mall. Bill Robinson, a Democrat, and Daryl Metcalfe, a Republican, are collaborating in the Pennsylvania legislature to curb eminent-domain powers as a result.

"There's a nationwide so-called property-rights movement occurring, and it's manifesting itself ... in these kinds of challenges," says Melvyn Durschlag, a professor of law at Case Western Reserve University in Cleveland.

He says it reflects a broad perception that government is restricting individual liberties.

That was certainly the mood early in the evening as Fort Trumbull property owners oohed and aahed at the new kitchen cabinets and hardwood floors inside the newly restored cottage of local-nurse Susette Kelo, before discussing how they would protest any move to destroy Richard Beyer's houses. The group is a truly multipartisan mix of Naderites, Republicans, Democrats, and Libertarians. ("The real issue is one of right or wrong: You don't just take your neighbor's home. And you needn't be a Democrat or a Republican to believe that," said Democrat Lloyd Beachy in a phone interview. He is the only New London town councilor to vote against the eminent-domain seizures.)

"I'd always thought the home was supposed to be your sanctuary," says Ms. Kelo, tears welling up.

But are the remaining holdouts stymieing progress?

"The public benefit to this is far and away beyond the price that's being paid by a very small number of the community," says Christopher Riley, a spokesperson for the New London Development Corporation (NLDC), a private, nonprofit organization granted eminent-domain powers to redevelop the city. In New London, the proposed hotel conference center and 80 units of housing will act as a sweetener for the Pfizer Pharmaceutical Corp., which is building a new plant adjacent to the neighborhood. Pfizer has given the NLDC $2 million to assist its endeavors. Mr. Riley points out that the proposed developments and Pfizer's investment will generate $12.5 million in local taxes and create more than 5,000 jobs. This is crucial, Riley says, for the sixth-poorest city in Connecticut.

"You have a public that is not in the mood to increase their taxes, and yet that same public is demanding increased services. So what is a municipality to do?" asks Professor Durschlag.

Eminent-domain seizures facilitate urban renewal, says Jeff Finkle, executive director of the council for Urban Economic Development, in Washington, D.C. "There is an overriding public good to allowing a private property to be taken if you're going to have an increase in property taxes on that same property," Mr. Finkle says, adding that, too often properties in urban areas contribute to urban sprawl because they aren't being put to their "highest and best use."

Secure in our homes?

"You cannot have economic development at the expense of constitutional rights," says Scott Bullock, an attorney for the Institute for Justice, a Washington, D.C.-based public interest law firm that has litigated on behalf of many property owners in eminent-domain cases. "If you go down that path, there's really no turning back from it, because the government can always find a 'better use' for your property."

The NLDC claims to own Bill Von Winkle's Fort Trumbull delicatessen and residential property after serving him notice of the eminent-domain seizure.

"There's just a bunch of greedy people who want my property next to the water for profit," opines Mr. Von Winkle, "maybe they now see what I saw 16 years ago when I started buying here."

Von Winkle was offered $300,000 for his properties as compensation for the eminent-domain seizure. It's a figure, he says, that would only cover the cost of renovation materials.

Durschlag says displaced businesses can't be justly compensated for the loss of their customer base if they're forced to move. Nor are targets of eminent domain compensated for the loss of good neighbors, or even for the move. Additionally, government appraisals tend to undervalue properties, which is why people resist moving, says Richard Epstein: "Since you're paying too little for the land, you get all sorts of people who pressure city hall and say, 'Look, give it to me, I'll pay you back your expenses.' You get corruption over and over again."

An eminent-domain case may be referred to the Supreme Court in the next five years, but the justices may be unwilling to revisit the issue, Mr. Epstein says.

"For now the battles are in the states," says Mr. Bullock, currently preparing to represent Richard Beyer, Bill von Winkle, Suzette Kelo and the other homeowners in court next month. "Property rights are for everyone, not just the rich." "The poor aren't politically powerful unless you have property protections."

(c) Copyright 2001. The Christian Science Monitor

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