From My South End

Massachusetts is one of a handful of states that has taken no action to restrain eminent domain-the government’s ability to seize property rights with due monetary compensation but without the owner’s consent-after the Supreme Court’s 2005 Kelo decision finding eminent domain for private use constitutional. It seems self-evident that forcibly taking property from one owner and giving it to another for financial gain is unfair-even un-American; yet, our legislature seems reluctant to take up the Court’s suggestion that states may enact their own restrictions. The reason is a lingering-but mistaken-belief that eminent domain is an indispensable tool for economic development and tax base enhancement.

But the opposite is true. The evidence has been clear since 1964, when Martin Anderson, then with MIT/Harvard’s Joint Center for Urban Studies, published a book titled The Federal Bulldozer, an analysis of the economic impacts of eminent domain as used in urban renewal. He provided clear documentation that in the years since private-benefit eminent domain became government policy in 1949, it had cost the taxpayers hugely more than it produced, and boded to remain a liability for the foreseeable future. Indeed, Boston is today still pock-marked with several hundred acres of land taken, cleared and held tax-exempt by the Boston Redevelopment Authority, land where people and businesses would have supported vibrant community life and paid taxes for these forty or fifty years. Eminent domain drove out residents, broke up communities, and decimated the small-business base.

In 2008, a Wall Street Journal editorial discussed a study by a private organization, Institute for Justice, which found no discernable hindrance to economic activity from the restriction of eminent domain, even in states implementing the strongest reforms after Kelo. The Journal agreed with the report, noting that although developers like to get land the government forces sellers to give up at cheap prices, and politicians like to play power games picking winners and losers, projects that can’t stand on their own shouldn’t be propped up by the taxpayers.

In 2009, William J. Stern, who ran the New York State Urban Development Corporation’s Times Square redevelopment project, wrote a report revealing that eminent domain “delayed development, added tremendous cost, and was unfair and inefficient”-and fraught with corruption.

It’s only logical that eminent domain-like other unfair public subsidies-would have negative effects. First, this kind of government intervention props up bad business plans and encourages overblown, risky projects that would be weeded out by the private markets, often leaving the city to clean up a big mess. Aside from the empty lots scarring the city, Filenes, Columbus Center and North Point are three recent grandiose local plans that were given all sorts of land, regulatory and tax favors, only to collapse of their own overreaching weight. Pfizer, the corporation for which the City of New London seized and destroyed Suzette Kelo’s home and neighborhood, recently decided “nevermind,” and moved out of town altogether, showing again, as the Wall Street Journal reported, “the futility of eminent domain as corporate welfare.” Read Nicole Gelinas’s City Journal story of the Atlantic Yards project in New York, where decay and disinvestment are the result of “a half-decade’s worth of government-created uncertainty, which stopped genuine private investment in its tracks.” We started to see tenants leaving and building maintenance neglected in the Fenway ten years ago, when a large swath of the neighborhood was declared blighted (or “potentially” blighted!) because the Red Sox team owners wanted to relocate the ballpark and fill its current site with profitable towers. Eminent domain costs the taxpayers money up front in takings compensation, and then for unpredictable periods of time in the loss of taxpaying properties. It destroys organically evolved communities and tries to replace them wholesale with artificial aggregates of buildings and people that don’t fit into the context and lack the interstitial tissue to function cohesively. And it end-runs the competitive markets, putting decisions into the hands of politicians with short-term political and financial goals, and engenders corruption, cronyism, and influence-peddling. Eminent domain is bad government and bad business.

As the WSJ reminds us, private development went along very nicely for centuries before politicians decided to take property from one person for the benefit of another. As Stern learned from his Times Square experience, “There was no shortage of developers willing to acquire property the old-fashioned way-through the private market.”

In today’s climate of economic distress, politicians are especially vulnerable to the fear-mongering lobbyists’s argument that we mustn’t lose any tool that could stimulate the economy. But the facts on eminent domain should liberate our elected officials to do the right thing-if that’s what they want to do. They should act now to eliminate private-benefit eminent domain, both by legislation and by constitutional amendment, to get government out of the business of business, let the competitive market determine development, and use scarce public money for real public needs.

The Judiciary Committee just heard several bills that would prohibit eminent domain for other than the traditional public uses-schools, parks, roads, etc. House Bill 1778 in particular serves the purpose well: it contains no “blight” loopholes, and would also prevent eminent domain taking of public land for private use.

Write to your legislators before March 17, the Committee decision date, and tell them to pass H. 1778. More important, tell them to pass a constitutional amendment prohibiting private-use eminent domain at the Constitutional Convention scheduled for July 29. Without this amendment, each politically wired developer will simply get a new law passed that allows for a taking s/he wants, “notwithstanding any other laws to the contrary.”

The last word, again from the Wall Street Journal: “If there is a lesson from Connecticut’s misfortune, it is that economic development that relies on the strong arm of government will never be the kind to create sustainable growth.”

Shirley Kressel is a landscape architect and urban designer, and one of the founders of the Alliance of Boston Neighborhoods. She can be reached at Shirley.Kressel@verizon.net.

From The Tulsa Beacon

A House committee passed legislation that would restrict the inappropriate use of eminent domain while protecting all legitimate uses.

House Bill 3053, by state Rep. Pat Ownbey, would force agencies to declare unused land surplus and offer to resell it to the original owner after 10 years. The legislation also strengthens notification requirements when using eminent domain to seize property.

“My legislation ensures the proper use of eminent domain so that property owners are not taken advantage of,” Ownbey, R-Ardmore, said. “Too often, after property is acquired by eminent domain, it is not used for the purpose originally cited to justify seizing the property. Sometimes, development that was planned falls through. This bill makes it possible for an individual to get their property back if it is not being used.”

Ownbey said a 1959 Oklahoma Department of Transportation use of eminent domain is an example of what his legislation would address.

“In 1959, the Department of Transportation condemned private property along State Highway 199 in Marshall County and in Carter County to widen the highway to four lanes from Madill to Interstate 35 south of Ardmore,” Ownbey said. “The highway eventually became State Highway 70 from the Carter County line to Madill, but it never became four-lane. To add insult to injury, the Department of Transportation began a project to four-lane the highway in a different area, along Oakland in 2009. Basically, my legislation is saying that if you’re going to take people’s land for public use, you’d better use it as advertised and you’d better do it within five years.”

Chickasha in the 1970s condemned private property for a city lake to be built. In addition to condemning the surface, the city also condemned the mineral rights of the property owners arguing that oil and gas production on the property would contaminate the water supply and would be detrimental to the citizens of Chickasha. Nevertheless, after acquiring the property and mineral rights, Chickasha then leased the minerals for exploration and possible production.

Ownbey said despite the new restrictions, the government would not be hindered from the legitimate use of eminent domain.

“I want to make it clear that there is no loss of eminent domain to a government entity,” Ownbey said. “This legislation is a fair balance between property owners and the government. The time period and sales price will serve the owner, while the power of eminent domain will remain in the hands of government. Surely private property owners deserve some protection from a government entity that has the power to take property from them.”

Oklahoma Farm Bureau Vice President of Public Policy Lori Kromer Peterson said her organization was endorsing Ownbey’s legislation because she supports private property rights.

“One of the top priorities for our organization is private property rights.” Peterson said. “In general the farm bureau would oppose the use of eminent domain, especially when it was not used for some public purpose. We support Representative Ownbey’s legislation because we support the landowners right to purchase their property back if it is not used for the purpose it was taken for.”

Brogdon signs Mt. Vernon Statement

State Senator and gubernatorial candidate Randy Brogdon, R- Owasso, has signed the Mount Vernon Statement.

The Mount Vernon Statement, crafted by various conservative leaders across the country including former Attorney General Meese, The Heritage Foundation, and Concerned Women for America, was written to ignite a constitutional reawakening in the country stating, “The change we urgently need, a change consistent with the American ideal, is not movement away from but toward our founding principles.”

Brogdon, is running on a platform of limited, constitutional government. Brogdon said, “My long-held position is a popular one with the people. I believe in the Constitution and the rule of law and we need documents like this to remind us of our founding principles.

“By signing this statement, I am once again publicly pledging to uphold and defend the constitution of the United States.”

From KSBI T.V

City leaders say 692 acres of South Oklahoma City should be declared blighted. Business owners say they fear eminent domain and the fight is on.”

“Don’t lie to us,” said Louis Morgan.

Morgan says he was lied to. As owner of the City Carbonic Company, he was told the Core to Shore and MAPS 3 projects would not affect him. But now he knows that’s not the case.

“That means I got to move. I’m not going to have a choice, they aren’t giving me a choice,” said Morgan.

In this area the city will build a brand new park and to do that they want to use eminent domain to take hundreds of acres around it for other development.

But Morgan says he wasn’t the only one that was lied to. He says MAPS 3 voters were mislead into passing the project.

“They only showed the voters the park and what they were going to do on the river. They didn’t tell them they were going to use eminent domain and do urban renewal and blight 692 acres,” said Morgan.

Morgan is holding a meeting at his business on Saturday to discuss the city’s actions. City Carbonic Sales and Service Company is at 406 SW 4th street.

From The Olympian

State Attorney General Rob McKenna kicked off his legislative campaign to toughen state eminent domain laws today.

He held a press conference at the Legislative Building with property owners who have had their land taken, and others who want to see state law changed to make it harder for government to take property, then turn it over to private development.

House Majority Leader Lynn Kessler, D-Hoquiam, joined McKenna, a Republican, at the event, telling a story about how her sister’s home was condemned to make way for Interstate 5. The government’s actions were a bit heavy handed, to hear Kessler tell it.

House Bill 2425 and Senate Bill 6200 capture McKenna’s proposals for prohibiting the use of eminent domain for economic development. He has proposed it as a response to the 2005 U.S. Supreme Court case in Kelo v. New London (Connecticut).

HB 2423 and SB 6199 capture his proposal to take away ambiguous language about “blight” in the Community Renewal Law. He said a 1960s court ruling had opened the door to wider use of it, and more recent instances include a decision by the city of Auburn to condemn a large area for development. He also mentioned a case in Lakewood where the land still isn’t developed despite a condemnation action.

Conservative groups including the Evergreen Freedom Foundation, the Institute for Justice and Washington Policy Center were part of McKenna’s event, and so was John Fuji, whose family owned the infamous “sinking ship” parking garage that the Seattle Monorail condemned for a station and private development (the state Supreme Court sided with the Monorail shortly before voters pulled the plug on the Monorail).

Scott Roberts, property rights director for EFF, said in a news release that McKenna was “slow to the party” on the Kelo case, noting 43 states have done reform since then.

Roberts, a former realty salesman and Thurston County Republican chairman, said he hopes McKenna “continues to work on making condemnation fair to property owners. Issues such as information provided to property owners, damages subsequent to condemnation, and appraisals all need to be addressed in detail.”

Michelle Dupler of our sister paper, the Tri-City Herald, is doing a story on McKenna’s efforts to change the law, which we hope to run in the morning paper.

From The O.C Register

SANTA ANA – County supervisors voted unanimously today to permit eminent domain to acquire about 20 parking spaces at an apartment complex in order to tunnel under the 405 for a storm drain project.

The board voted to use eminent domain if negotiations with the owner of The Huntington Apartments at 8400 Edinger Avenue fall through. The vote came after several months of negotiations with the property owners about a voluntary sale without an agreement.

The property owners did not return phone calls from the Register about eminent domain and did not speak at today’s board meeting. The board voted on the item without discussion.

A member of the public works staff told the supervisors that the project was necessary.

“This project is very important for us and it addresses a very difficult channel,” said Nadeem Majaj. “We are working with owners and as of this morning we are very, very close to an agreement but we strongly recommend moving forward with (the eminent domain option.)”

The storm drain improvements come after a series of lawsuits and a flood in 1995, when residents living in 138 ground-floor units at the complex had to be evacuated as waist-high water and sewage flooded apartments. The complex sustained about $2.5 million in damages and residents were forced to move out for about several months.

The county is offering to pay the property owners $96,500 for use of about 7,200 square feet of the parking lot for about a year or whenever construction is completed, according to a staff report. Crews hope to begin construction this summer and work is expected to last six months.

About 20 parking spaces would be temporarily eliminated but 22 parallel parking spaces would be added along Newland Street.

The complex and its insurance company sued the California Department of Transportation, the county, the flood control district, Huntington Beach and Westminster for the damage caused by the Orange County Flood Control Channel during the flood in 1995.

All of the defendants settled with the complex and insurance company except the city of Huntington Beach, which lost during trial and on appeal.