Report: Eminent-Domain Abuse Widespread

Posted on April 22, 2003 | Type: In the News
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If you believe your home is your castle or that the government can only take it for public use, you should be warned otherwise, says a public-interest law firm that documented thousands of cases nationwide where governments have abused eminent domain.

The report, titled "Public Power, Private Gain," is the first of its kind nationwide to document how often government confiscates private property and hands it over to private developers, says the Institute For Justice, a libertarian-oriented firm based in Washington, D.C.

"This report is a wake-up call to all citizens," says Dana Berliner, a senior attorney at the institute and author of the report. "Your property can be taken away by the unholy alliance of government and business interests. It is happening all over the country, and it can happen to you."

In the report, Berliner discusses more than 10,000 cases where homes, businesses, churches and private land were seized or threatened with seizure over the past five years not to be used for public use, but instead for private for-profit development.

The concept of eminent domain is defined as the right of government to take private property for public use "by virtue of the superior dominion of the sovereign power over all lands within its jurisdiction," according to the Merriam-Webster online dictionary. The Fifth Amendment to the U.S. Constitution prohibits the federal government from taking private property for public use without "just compensation" to the owner.

Among the examples cited by the report include the condemnation of a family's home so that the manager of a planned golf course could live in it; the eviction of four elderly siblings from their home of six decades for a private industrial park; and the removal of a woman in her 80s from her home of 55 years, allegedly to expand a sewer plant but in actuality to give her home to an automobile dealership.

The report said that since 1998 there have been 10,282-plus filed or threatened condemnations for private parties with reports of actual or threatened condemnation for private parties coming from 41 states.

John Kramer, vice president for communications, said the institute would release its findings to the public today at the National Press Club in Washington.

Besides the federal Constitution, the firm says every state's constitution also imposes similar eminent domain restrictions on government.

"In America, private property can only be taken for a public use, not for a private use," the institute said, in a statement.

But, as the report denotes, "state and local governments believe they can condemn anything for any purpose, no matter how blatantly private," the statement continued.

States with the worst record of private-use condemnations, the firm said, are California, Kansas, Maryland, Michigan and Ohio. Runners-up include Pennsylvania, Florida and New Jersey.

Cities with the worst record are Detroit, Riviera Beach, Fla., San Jose, Calif., and Philadelphia.

"From a legal standpoint," the institute said, the worst states in which to live for property owners seeking to avoid condemnation are New York, Missouri and Kansas.

But the institute's report also contained some good news for property owners: "The best states [to avoid condemnation of property] are Delaware, Georgia, Idaho, Montana, New Hampshire, New Mexico, South Dakota and Wyoming, none of which had any reported eminent domain for private use."

In its February 2003 issue, Reason Magazine published a story chronicling eminent domain abuses. It said some property owners are getting legal satisfaction, but that those cases could be the exception.

"Despite recent victories, the courts are unlikely to be much help in reining in abuses of eminent domain," the magazine reported. "In fact, many of the recent victories against eminent-domain abuse have resulted from nonjudicial remedies."

Not everyone agrees eminent domain is being abused.

"The fact is that in the average community in the typical state, the system is working well," claims the American Planning Association, a nonprofit public interest and research organization, Reason magazine reported. "Property-rights advocates are waging a guerrilla war of sound bites, misleading 'spin doctoring' and power politics which characterizes government at every level as evil empires of bad intent."

Critics argue that sometimes eminent domain is needed so local governments and private real estate partners can move quickly on development projects.

"Eminent domain is critical for local redevelopment efforts," says John Bowers, executive director of the Arizona Association for Economic Development. "Without it, it would be virtually impossible for a city to assemble a multi-parcel piece of property for redevelopment."

In August, the Phoenix-based Goldwater Institute addressed eminent-domain abuse in Arizona.

"Despite strong protections for private property in the Arizona Constitution, municipalities increasingly have been taking private property from landowners for use by other private citizens and by corporations," the institute said, in a statement. "These abuses of eminent-domain power have been enabled in recent years by the 1997 redevelopment statute."

Berliner says the most common excuse for abusing eminent domain is for governments and developers to cite "community" betterment, a concept he says doesn't exist.

"Communities have no rights (to execute private-use condemnation) not under natural law, not under common law and not under the Constitution," he says, even if most local people favor a particular development project. "It was to prevent just such abuses, the tyranny of majority over minority, that the Founders wrote our Constitution."

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