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July 15, 2005

Local Government’s Nuclear Option – Part 3

Kevin E. Dayhoff

Immediately after the U. S. Constitution was adopted, few questioned the public taking of land for a new national capital. Two hundred years later, I am not quite sure our Founding Fathers meant to allow a Donald Trump to convince the Atlantic City government to condemn the home of an elderly widow so he could build a limousine parking lot.

Unpleasantly, the next phase of eminent domain was in the context of the pre-Civil War issue of slavery. The proslavery elements suggested that the Fifth Amendment assured “property owners” of full and fair compensation from any governmental taking.

Later in the 1800s, eminent domain was used in the expansion of the railroads, which were private sector enterprises owned by individuals or stockholders. Obtaining the right-of-ways for the railroads caused great disputes. However, as the government saw it, railroads were much needed mass public transportation for the greater public good.

The only thing is that the Native Americans also thought that their land was sacred and in their interests of public good. They were always baffled that anyone would want to buy their land, much less forcibly disenfranchise them of their land. The land was not for sale.

Most folks did not worry about the plight of the Native-Americans. It wasn’t their sacred land at stake, so what the heck. One hundred years later, it is no irony that many Americans are baffled that the government would want to buy their sacred homes and businesses, which are certainly not for sale.

The Tennessee Valley Authority, which in 1933-35 forcibly evicted thousands to build the Norris Dam, was a good example of the use of eminent domain for a greater public good. The grand highway developments of the years after World War II also saw a great deal of the use of eminent domain. At least the 20th century equivalent of the railroads, public highways are actually publicly owned.

The real mischief started 50 years ago when the Supreme Court, in Berman v. Parker, decided on November 22, 1954, that the urban renewal program in the District of Columbia could rip down a perfectly serviceable department store as part of a larger “slum” clearance project in a predominantly black area of town.

Courts in other states relied on this decision in framing their own eminent domain cases. In 1981, the Michigan’s highest court permitted eminent domain powers to be exercised in the neighborhood of Poletown in order to build a General Motors plant.

Over 1,000 homes and 600 businesses were razed for the plant. In 2004, as the promised urban regeneration did not materialize, the Michigan Supreme Court was asked to "restore the constitutional protections which ensure that private property cannot be taken to benefit powerful interest groups at the expense of the less powerful." The Michigan court voted unanimously to overturn the Poletown eminent domain ruling over 20 years after the neighborhood was razed.

A real surprise came in 1984, in Hawaiian Housing Authority v. Midkiff, which allowed Hawaii to order a large landlord to convey individual units to tenants who were prepared to pay the requisite amount of compensation, holding that "conceivable" public benefit justified the state's action.

George Will has written about the example of Florida’s West Palm Beach County, which condemned a family's home so that the manager of a planned public golf course could live there.

In a CBS piece on July 4, 2004, it was noted “this isn't happening just in small towns. In New York City, just a few blocks from Times Square, New York State has forced a man to sell a corner that his family owned for more than 100 years.

And what's going up instead? A courthouse? A school? Nope. The new headquarters of The New York Times. The world's most prestigious newspaper wants to build a new home on that block, but the block's property owners didn't want to sell.

The property owner told 60 Minutes that the newspaper never tried to negotiate with him. Instead, The Times teamed up with a major real estate developer, and together they convinced New York State to use eminent domain to force the property owner out. How? By declaring the block blighted.”

Justice Clarence Thomas wrote in dissent in the “Kelo” decision that "New London does not claim that Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society ..."

House Majority Leader Tom DeLay (R., TX) a frequent critic of recent court decisions, said in a piece filed on MSNBC: "The only silver lining to this decision is the possibility that this time the court has finally gone too far and that the American people are ready to reassert their constitutional authority." Congressman DeLay went on to say: "Someone could knock on your door and tell you that the city council has voted to give your house to someone else because they have nicer plans for the property."

Supporters of a broader draconian use of eminent domain say it is a critical tool for the higher and better use economic development of many urban areas.

Local government wanting to broaden its tax base and encourage urban renewal by facilitating market forces is one thing. Exercising eminent domain for strictly private development is another.

It is my hope that the Maryland General Assembly can tell the difference. At least eight states already forbid the use of eminent domain for economic development unless it is to eliminate defined blight.

Maryland needs to be the ninth state to enact such protections.

Kevin Dayhoff writes from Westminster. E-mail him at:

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