Posted on Sun, Apr. 30, 2006


Private property v. public use

Expansion of eminent domain definition has lawmakers up in arms, writing bills to protect homeowners' rights
By Elizabeth Mehren


THE U.S. SUPREME COURT ruling that local governments could seize private property and hand it over to developers has set off a landslide of legislation in statehouses around the country.

Since the court expanded the definition of eminent domain in June in Kelo v. New London, lawmakers in 47 states have introduced more than 325 measures to protect private property.

As many Democrats as Republicans have written these bills and constitutional amendments, sometimes moved by their own situations, such as fear that their aging parents' homes might be targeted.

"I have never seen a response to a Supreme Court decision this dramatic," said Larry Morandi, a land-use specialist for the National Conference of State Legislatures. "It is a gut issue, not a partisan issue at all. Whether you are a Massachusetts Democrat or a Republican in South Dakota, you are concerned about your home."

The legislative measures vary widely, but, Morandi said, all reflect the fact that Kelo stoked lawmakers' concerns about safeguarding constituents' property.

Like hundreds of lawmakers across the country, New Jersey state Sen. Diane Allen crafted a bill to protect owners of homes and small businesses.

The Republican lawmaker proposed a two-year moratorium on the use of eminent domain -- the practice that allows governments to seize private property for public use.

Her plan followed a flurry of proposals -- at least 25 major projects in her state -- to raze modest homes in fine condition for grander housing and retail ventures that came on Kelo's coattails.

Allen said Kelo opened the door for towns and developers to rob the character of communities such as Lawnside, N.J., a middle-class black enclave that took root as a stop on the Underground Railroad. Four proposals to build expensive homes and shops are under consideration in Lawnside, imperiling as many as 20 well-kept homes.

"I'm not against redevelopment, and I'm not against building lovely townhouses," Allen said. "The question is: Where is it going to happen, and who is going to suffer because of it?"

Back to Roman times

Governments have invoked the right to seize private property for public use since the Roman Empire. But the right has traditionally been used to take land for the building of bridges, dams, highways and other projects that are inarguably for public use.

In Kelo, the Supreme Court for the first time explicitly permitted governments to take any home or small business for private use if the new construction that replaced it would benefit the community with new jobs and increased tax revenues.

The case was named for Susette Kelo, one of a small group whose houses stood on a waterfront site where the city of New London, Conn., wanted to build hotels, apartments, shops and offices. The homeowners lost their challenge.

Kelo, who refurbished her 19th century house while working two jobs, put a sympathetic face on the plight of property owners faced with losing their homes to eminent domain. The project is stalled, and Kelo is still in her house.

Inviolable right

Most Americans view homeownership as an inviolable right, said Michael Schill, dean of the UCLA Law School, so the case resonated deeply. Kelo also dramatically increased public knowledge about eminent domain, he said.

"When you take somebody's house, you strike into the core of their personal life and their privacy," said Schill, an expert in property law. "You are going to see a tremendous change in this area. We are seeing it right now."

The final paragraph of the majority opinion in Kelo essentially invited legislatures to make their own rules on eminent domain if they didn't like the decision. Almost every state commenced to do just that.

Delaware moved first, permitting eminent domain to be used only for a recognized public purpose. Alabama, Ohio and Texas passed bills barring the use of eminent domain to increase tax revenue or promote private development. In November, Michigan voters will cast ballots on an amendment that would prohibit the taking of property for economic development.

In recent weeks, Utah, Kansas and New Hampshire limited eminent domain, as did Indiana, Idaho, West Virginia, South Dakota and Wisconsin. Maryland has more than 40 Kelo-inspired eminent domain bills pending. California has at least a dozen.

Most of these proposals preclude the use of eminent domain for economic development or increased tax revenue.

One of the half-dozen measures under discussion in Alaska bars the use of eminent domain to take property that will be transferred to a "private person," such as a developer. A bill in Georgia would allow private property to be seized for economic development, but only in blighted areas.

In New Jersey, a half-dozen bills sit "bottled up in committee," Allen said, and months could pass before lawmakers take up the eminent domain bills.

Fighting Lawnside

Anticipating that the Supreme Court ruling would go their way, town officials in Lawnside -- where cabins that housed fugitive slaves gave way over the years to neat homes on generous lots -- announced plans to build housing and retail space on 120 acres before Kelo became law. Much of the land was open space, but a portion was occupied by homes -- some close to 100 years old. No part of the town is seen as distressed.

Landowners whose homes were in jeopardy joined forces with residents whose property was not at risk, but who opposed taking private houses. Citizens for a Better Lawnside sued the town. The group cited Kelo in arguing that officials did not hold public discussion of the project, as recommended by the Supreme Court, and that individuals -- rather than the entire town -- would benefit from the redevelopment. The landowners' suit was to be heard this month in federal court.

"This is a land grab, pure and simple," said Willa Coletrane. Four years ago she bought a three-bedroom ranch house for $80,000 -- then poured thousands of dollars into renovations. The house is in the area marked for development and likely will be condemned.

"Their vision is that if they can get us out of here, they can put in townhouses and condos and bring in people from Philadelphia and New York," the 65-year-old widow said.

Builder: 'I need Kelo'

Supporters of the project were quick to seize momentum from the Kelo decision. "I need Kelo," said Ernest Edwards, a builder vying to build townhouses and shops. "I need the judge to say that what is being proposed is in the best interests of the municipality."

Lawnside, a town of 2,700, has no public housing. Most of its 1,300 homes are owned, not rented. The town is 95 percent black with a handful of American Indians, Asians, Latinos and whites. Close to half of Lawnside residents make more than $50,000 per year, and a quarter earn more than $100,000 annually.

From its outset, Lawnside distinguished itself, said history professor Wayne Glasker of the Camden, N.J., campus of Rutgers University. "You had a community of people who were middle class, who had jobs, who had an education and they laid a solid foundation. They were homeowners. They take great pride in keeping up their community."

Mark Bryant, Lawnside's mayor for the past 16 years, said development proposals valued at $100 million to $150 million could double Lawnside's tax base of about $70 million, and enhance the town's character. As for the homeowners who may be displaced, Bryant said, this is a case where "the needs of the many outweigh the needs of the few."

Wesley Reid, 73, said he and his wife, Gloria, will not remain in Lawnside if the town condemns the house he built 40 years ago. Reid said the couple could not afford the taxes on another house in Lawnside, and do not want to be part of what they see their town turning into.

"When they are done, they might as well put up a plaque that says 'Here Was Lawnside,'" said Reid. Wherever they move, he said, they will have a hard time regaining the sense of belonging they have felt in this small town.


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