9/13/2005

Eminent-domain outcry spans politics: Richmond (VA) Times-Dispatch, 9/12/05

By Peter Hardin

In Atlantic City, authorities sought to condemn the home of an elderly widow, located next to Donald Trump's casino, to make space for parking limousines.

In Cincinnati, a Walgreen's was condemned in order to build a Nordstrom department store and then a CVS pharmacy was condemned in order to relocate the Walgreen's.

To critics who voice alarm over what they call an erosion of private-property rights, these are among the examples. But it was a case in Connecticut that triggered a backlash in the nation and in Congress.

In June, the Supreme Court ruled 5-4 that New London had authority to take homes for a private development project to include a hotel, upscale condominiums and office space.

The outcry from people who saw private-property rights under attack was immediate and loud.

"In our fractured times . . . the Supreme Court appears to have done the impossible: unite the country in the common cause of opposing its decision," said law professor Jonathan Turley of George Washington University.

It's not easy to spark sustained excitement over a government condemnation power called eminent domain. But that the Supreme Court helped do so was on display at a hearing of the House Agriculture Committee last week.

"In the wake of this decision, state and local governments can use eminent domain powers to take the property of any individual for nearly any reason," Chairman Robert W. Goodlatte, R-6th, warned in opening the hearing.

"Cities may now bulldoze private citizens' homes, farms and small businesses to make way for shopping malls or other developments."

Rep. Henry Bonilla, R-Texas and chairman of the Appropriations agriculture subcommittee, cautioned that "Those with deep pockets and questionable intentions now have both the legal means and profit motive to sway local officials to do their bidding."

Rep. Maxine Waters, a liberal Democrat from Los Angeles, joined in with her belief that "To me, private property is sacred."

Given her record, there was no mistaking the liberal-conservative coalition that has developed after the Supreme Court decision in Kelo v. City of New London.

"The Kelo decision has struck a raw nerve around the country," testified Bob Stallman, president of the American Farm Bureau Federation.

Lawmakers even summoned up images of stubborn residents refusing to evacuate their hurricane-ravaged properties in New Orleans as reflecting the strength of American feelings about homeownership.

At the hearing, a bill by Bonilla to counteract the Supreme Court decision won warm reviews and virtually no dissent.

One of several bills drafted to address the Kelo ruling, it would use Congress' power of the purse to deny federal economic development aid to states and localities that take property for private commercial development.

"This bill really does have teeth," said Goodlatte, a conservative from Roanoke who used his chairmanship to pounce on the hot issue and give the bill its first hearing.

Virginia House of Delegates Speaker William J. Howell, a Republican from Stafford County, spoke favorably of the bill and told Goodlatte it had the potential to make an impact.

"You will get the states' attention," Howell said. He also is a board member of the American Legislative Exchange Council, a bipartisan group of state legislators.

Howell reported on actions by states. Alabama and Texas already have passed laws to help limit abuses of the government condemnation power, he said, and dozens more are preparing to take up such legislation.

In Virginia, Howell said, similar legislation will be taken up in the General Assembly, and there will be an effort to amend the state constitution.

Historically, condemnation power has been employed for such public uses as highways, parks, military installations, schools, courthouses and post offices. But in recent decades, the use of the condemnation power for private development has become more widespread, experts said.

Some expansion of the power came with the urban renewal movement of the 1950s, testified lawyer Dana Berliner of the Institute for Justice, a public-interest law firm.

Cities were authorized to use it to remove so-called slum neighborhoods, Berliner said, and the meaning of those "public" uses for which the power was permitted grew to include private uses such as condominiums and big-box stores.

In the Connecticut case, the goals of the New London project were to generate tax revenue, create jobs and help build momentum for downtown revitalization.

The Supreme Court decision in that case was supported by the National League of Cities, which has called eminent domain one of cities' most effective tools for economic development, and one that is used selectively and carefully.

Mayor Anthony A. Williams of Washington, the NLC president, called that power "indispensable for revitalizing local economies, creating much-needed jobs, and generating revenue that enables cities to provide essential services."

The cities group contends Congress should let states address the issue, according to NLC lawyer David Parkhurst, and U.S. lawmakers ought to "take a deep breath and be very careful about rushing through legislation that would have unintended consequences."

At last week's hearing, some lawmakers and witnesses raised questions about definitions and other technical aspects of the bill they feared might end up causing major problems.

Parkhurst also protested that the hearing was so unbalanced that had it "been on a ship, we would have capsized because we would have all tilted to one side."

In Virginia, state law basically prohibits the kind of condemnation that was at issue in New London, said Mark Flynn of the Virginia Municipal League, which represents local governments. Local governments in Virginia generally resist using condemnation, he said.


Richmond Times-Dispatch: www.timesdispatch.com