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HOW HE SEES IT Eminent domain power open to abuse



Published: Wed, February 23, 2005 @ 12:00 a.m.



By TIMOTHY SANDEFUR

KNIGHT RIDDER/TRIBUNE

You may not know it, but your home is for sale.

Across America, government and big business are teaming up to condemn people's homes, and replace them with shopping centers and megastores such as Costco, Ikea and Home Depot. In fact, from just 1998 to 2003, there were 10,000 reported cases of cities and states condemning or threatening to condemn homes and businesses to make way for private companies to expand.

Government's power to take property against the owner's will is called eminent domain, and it is the subject of a case the U.S. Supreme Court heard Tuesday. In Kelo v. New London, the court will consider whether the Constitution places any limits on eminent domain.

The Fifth Amendment says that private property may only be taken for "public use," which in the past meant highways or government buildings. But in the Kelo case, a Connecticut town decided to "revitalize" the community by taking several properties and replacing them with a hotel, a health club and a marina, to accompany a new research facility for the Pfizer pharmaceutical company.

Health clubs and corporate research are private uses, not public uses. But the city argues that "revitalization" would increase tax revenue and "create jobs." And a public benefit, the city says, is all the Constitution requires.

The problem with that argument is that most businesses benefit the public. If our homes can be taken away whenever bureaucrats decide that somebody else would use them more effectively, then our property rights will be rendered meaningless.

Consider the infamous Poletown case. In the early 1980s, the General Motors Corp. persuaded Detroit -- which was reeling from recession -- to condemn a neighborhood called Poletown (due to the large number of Polish immigrants living there) and sell it cheap to GM to build an auto factory. The Michigan Supreme Court held that the condemnation was legal: If the government declared that a condemnation would benefit the public, the courts would not stand in the way.

In a whirlwind of litigation that lasted only a few weeks, neighbors watched as their community was pulverized.

Abuse epidemic

The Poletown decision led to an epidemic of eminent domain abuse. In 1999, the city of Merriam, Kan., condemned a Toyota dealership to sell the land to a BMW dealer instead. That same year, Bremerton, Wash., condemned 22 homes to resell the land to private developers. In one notorious case, billionaire Donald Trump persuaded the government of Atlantic City, N.J., to condemn the home of an elderly widow so he could build a limousine parking lot.

Unfortunately, the victims of eminent domain are most often the elderly, the poor and minorities. They lack the money and political power to persuade the government to respect their rights. But corporate lobbyists are very effective at persuading cities to give them someone else's land on the pretense that it will create jobs and improve the neighborhood -- especially when it will increase the city's tax base.

Fortunately, things may be changing. Last year, the Michigan Supreme Court overturned its Poletown decision. "If one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use," the court said, "the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, 'megastore,' or the like."

Now it's up to the U.S. Supreme Court to put an end to eminent domain abuse nationwide. The justices have been asked a simple question in the Kelo case: Does "public use" mean the government can take people's homes and small businesses and resell the land to Pfizer, Donald Trump or other private parties?

The answer should be no. Everyone, rich or poor, should have the same right to be secure in their homes and businesses. Otherwise, our property rights will be only permissions granted by the government -- and revokable at will.

X Timothy Sandefur is an attorney with Pacific Legal Foundation, a public interest legal organization dedicated to defending private property rights and individual freedom. Sandefur wrote the foundation's amicus brief supporting the property owners in Kelo v. New London. Distributed by Knight Ridder/Tribune Information Services




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