EMINENT DOMAIN

“The Supreme Court’s decision told homeowners and business owners everywhere that there’s now a big `Up for Grabs’ sign on their front lawn.”

Attorney Dana Berliner
Institute for Justice

Chicago – Alarmed by the prospect of local governments seizing homes and turning
the property over to developers, lawmakers in at least half the states are rushing
to blunt last month’s U.S. Supreme Court ruling expanding the power of eminent
domain.

In Texas and California, legislators have proposed constitutional
amendments to bar government from taking private property for economic development.
Politicians in Alabama, South Dakota and Virginia likewise hope to curtail government’s
ability to condemn land.

Even in states like Illinois — one of at least
eight that already forbid eminent domain for economic development unless the purpose
is to eliminate blight — lawmakers are proposing to make it even tougher to use
the procedure.

"People I’ve never heard from before came out of the
woodwork and were just so agitated," said Illinois state Sen. Susan Garrett,
a Democrat. "People feel that it’s a threat to their personal property, and
that has hit a chord."

The Institute for Justice, which represented
homeowners in the Connecticut case that was decided by the Supreme Court, said
at least 25 states are considering changes to eminent domain laws.

The Constitution
says governments cannot take private property for public use without "just
compensation." Governments have traditionally used their eminent domain authority
to build roads, reservoirs and other public projects. But for decades, the court
has been expanding the definition of public use, allowing cities to employ eminent
domain to eliminate blight.

June decision

In June, the Supreme Court
ruled 5-4 that New London, Conn., had the authority to take homes for a private
development project. But in its ruling, the court noted that states are free to
ban that practice — an invitation lawmakers are accepting in response to a flood
of e-mails, phone calls and letters from anxious constituents.

"The
Supreme Court’s decision told homeowners and business owners everywhere that there’s
now a big `Up for Grabs’ sign on their front lawn," said Dana Berliner, an
attorney with the Institute for Justice. "Before this, people just didn’t
realize that they could lose their home or their family’s business because some
other person would pay more taxes on the same land. People are unbelievably upset."

Don
Borut, executive director of the National League of Cities, which backed New London
in its appeal to the high court, said government’s eminent domain power is important
for revitalizing neighborhoods. He said any changes to state law should be done
after careful reflection.

"There’s a rush to respond to the emotional
impact,” he said. “Our view is, step back, let’s look at the issue in
the broadest sense and if there are changes that are reflected upon, that’s appropriate.”

In
Alabama, Republican Gov. Bob Riley is drawing up a bill that would prohibit city
and county governments from using eminent domain to take property for retail,
office or residential development. It would still allow property to be taken for
industrial development, such as new factories, and for roads and schools.

In
Connecticut, politicians want to slap a moratorium on the use of eminent domain
by municipalities until the Legislature can act.

One critic of the ruling
has suggested local officials take over Supreme Court Justice David Souter’s New
Hampshire farmhouse and turn it into a hotel. Souter voted with the majority in
the Connecticut case.

Eight states forbid

Arkansas, Florida, Illinois,
Kentucky, Maine, Montana, South Carolina and Washington already forbid the taking
of private property for economic development except to eliminate blight. Other
states either expressly allow private property to be taken for private economic
purposes or have not spoken clearly on the question.
Illinois Sen. Steve Rauschenberger,
a Republican who is considering a run for governor, said the state’s blight laws
need to be more restrictive.

"The statutory definition of blight in
Illinois is broader than the Mississippi River at its mouth," he said. "They
have taken everything from underdeveloped lakefront property to open green-grass
farm fields as being defined as blighted."

Action also is taking place
at the federal level, where a proposal would ban the use of federal funds for
any project moving forward because of the Supreme Court decision. And the Institute
for Justice said it will ask the Supreme Court to rehear the New London case but
acknowledged that the prospects of that happening are dim.

"One of
the things, I think, that is elemental to American freedom is the right to have
and hold private property and not to interfere with that right," Rauschenberger
said. "For Americans, it’s like the boot on the door. You can’t kick in the
door and come in my house unless I invite you."