7/04/2006

Little help for little guy with eminent domain problem: MetroWest Daily News (Framingham MA), 6/30/06

Opinion

By John P. Lambert

The great howl of rage that greeted the Supreme Court's Kelo decision a few months ago is but a whisper in state legislatures today. A lot of people would be hard put to remember even that Kelo sustained the right of local and state governments to seize private property in order to deliver same to a second private party who could make better economic use of the property and generate greater tax revenue from the taking.

Prior to the ruling, there was strong feeling that many local jurisdictions nationwide had flagrantly abused their eminent domain powers in the furtherance of economic development. Kelo let loose a flood of pent up takings that had been held in abeyance while awaiting the decision. More than two days after the ruling came down, Boston officials called on their mayor to seize waterfront property from unwilling sellers in that city for use in the South Boston convention center (Fan Pier) development project.

Such was the furor over the ruling and the moves by municipal officials nationwide to exercise the approved powers,some 50 house members in the Massachusetts Legislature signed onto a resolution indicating disagreement with the Supreme Court's decision. A bill and a proposed constitutional amendment were also filed limiting taking private property for the sole purpose of economic development unless the seized property was considered dilapidated or "blighted."

The two proposed reforms have not progressed far in the legislative process.

For one thing, constitutional amendments are a rough road to haul. Whereas laws are more easily enacted, they can be changed in a "heartbeat," often in midnight sessions. "Blight" itself, like beauty, is too much that in the eye of the beholder. The term lends itself to interpretation and provides a huge loophole through which to drive a bulldozer.

Elsewhere, Rhode Island merely contented itself with a bill urging Congress to, among other things, nullify the Kelo decision. What affect such resolutions have on Congress is problematical. Connecticut, the state which gave rise to the Kelo ruling, called for a moratorium on the use of eminent domain by all its cities until it could revise its law to protect property owners.

Eight states are currently drafting amendments to their constitutions to prohibit the use of eminent domain for private developments.

Georgia is considering a law prohibiting using eminent domain for "retail, office, commercial, or residential development." Alabama is considering a similar measure.

Texas has a bill that calls for a constitutional amendment to prohibit taking private property for the primary purpose of economic development.

In California, a senator has proposed a constitutional amendment prohibiting use of eminent domain for private use "under all circumstances."

At least ten states — Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, Montana, South Carolina, Utah and Washington — already forbid the use of eminent domain for economic development.

The immediate effect of the Kelo decision and the proposed restrictions on the eminent domain powers of local government has been a rush to takings in the many states (as in Boston's Fan Pier project).

Meanwhile, the pace of proposed reform bills nationwide has slowed to a crawl. An observer of legislative action of eminent domain revisions has commented that he suspects most proposals "are going to die on the vine." Corporate pressure and municipal lobbying has been heavy to preserve eminent domain as a tool in economic development at the local level.

There is much hypocrisy among state legislators in dealing with changes in state laws. Many have been busy watering down bills before them through grandfather clauses and exceptions provisions like the "blight" exemptions.

Clearly, Justice Sandra O'Connor's "little guy" cited in her majority opinion in Kelo has as much clout with state legislators as he does with today's Congress. As for recourse to the ballot box ... what is there to say?


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