10/03/2004

Eminent domain a growing concern
Beauregard Daily News (DeRidder LA), 10/3/04

By George Frasher, Columnist

This week, the U.S. Supreme Court agreed to hear a case involving a situation that has escalated throughout the country in the past quarter of a century. The Fifth Amendment to the U.S. Constitution deals mainly with the rights of accused persons, but the final 12 words of that article deals with all owners of real estate. It says, "...nor shall private property be taken for public use without just compensation."

This is known as the power of eminent domain. For about 200 years this has been interpreted to mean that a government can force people to sell their property to make way for a road, public school or other public buildings if the government pays the private owners a fair price.

In 1954 the court expanded the process to clearing slum areas. The Court in 1984 broadened the standards even more. Like so many other instances in the Constitution, the framers assured the right but left enacting the legal fine points up to the states and local government.

Thus, the use of the words "...for public use..." can mean different things in different places and different times. The High Court has agreed to hear arguments in an appeal from seven owners in a neighborhood of New London, Conn.

The city has earmarked those properties for economic development. The Connecticut Supreme Court upheld the city's right to take the properties, compensate the owners, and then turn the land over to a private developer.

The city's plan for the 90-acre neighborhood of small homes include a waterfront hotel and conference center, office space for high tech research and development and 80 new homes. The city would lease the land to the developer for 99 years at $1 a year. Such a development would certainly increase the tax base for the city, but the legal question for the High Court is whether such a lease to allow a private corporation making a profit meets the Constitutional restriction "for public use."

While this is the first case to reach the nation's highest court, it is not a unique situation. Another classic example was made public about a year ago. It involved Jim and Joanne Saleet refusing to sell their Lakewood, Ohio, home they have lived in for 38 years so the city can give it to another private owner.

The mayor wants to tear down the Saleet's home, along with 55 other homes, four apartment buildings and more than a dozen small businesses so a private developer can build high price condos and a high-end shopping mall. Naturally, such privately owned enterprises would bring in considerably more property tax than is now being realized.

The Saleets live in an area known as Scenic Park, and because it is scenic it is a prime place to building upscale condominiums with great views over the Rocky River.

In order to invoke the power of eminent domain the city had to declare the neighborhood a blighted area. The term blight means whether the buildings in an area meet today's standards. But it is the City Council and the mayor who establish those standards. Lakewood has set the standard for blight that would include most of the homes in the neighborhood.

A home could be considered blighted if it doesn't have three bedrooms, two baths, an attached two-car garage and air conditioning.

The mayor admitted her house doesn't have two bathrooms, a two-car garage and is on a lot of less than 5,000 square feet.

In Mesa, Ariz., Randy Bailey owns a brake repair shop he inherited from his father and has been on the same corner for more than 30 years. The owner of the Ace Hardware Store in Mesa a few blocks away wants a bigger store. He got the city to buy the land through eminent domain then sell it to him.

This kind of thing is going on throughout the country. And here is one of the biggest incidents. A few blocks from Times Square in Manhattan a man whose family has owned the property on a corner for over 100 years and his neighbors were forced to sell by the State of New York. No, there's no school, courthouse or other public building is going up on the land. What is going up is the new headquarters of the New York Times.

Instead of trying to deal with the owners, the Times officials got the state to use its power of eminent domain.

Incidentally, here's a couple of final happy notes on the above cases indicating that maybe you can fight city hall. The Saleets won when Lakewood residents rejected the plan and also voted the mayor out of office.

In Mesa, the Arizona Court of Appeals ruled that turning over the land to a private business would not be proper use of eminent domain so Randy Bailey's Brake Shop the brake remains at its original site.

On the other side, in New York, the Times can start work on its new headquarters building.


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