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© St. Petersburg Times, published June 30, 2002
To my mind, the three worst things the government can do to you are: 1) take away your children, 2) take away your liberty, 3) take away your home or business.
When the government attempts to do either of the first two it must first make a serious accusation against you, either of criminality or of abuse and neglect of a child, and then must prove the allegations in a forum where where the accused is generally guaranteed a lawyer and due process.
But this is not true of the third privation. In the case of the government converting your private property to its own use, no accusation of wrongdoing is necessary. You just have to be in the way.
As local governments increasingly use their power of eminent domain not just to build highways and schools but to give land to private businesses, the Castle Coalition, a project of the Washington D.C.-based Institute for Justice, is providing owners with the tools to fight abusive takings.
The Constitution says the government may take private property as long as it is for a "public use," and the owner is provided "just compensation." For 150 years, the definition of a public use meant conversion into public property, such as a highway, a school or a park. But the definition began to expand in the 1950s when slum clearance became an accepted basis for condemnation. Local governments looking to clear blighted areas would condemn large swaths of land and turn them over to private developers. Favored businesses saw the process as a way around the open property market, and soon the private property of the little guy was being seized for the express purpose of enhancing the profits of powerful interests:
William Gross' property was condemned by Merriam, Kan., in 1998. He had been leasing his land to a used car dealer when the city took it to hand over to a BMW dealer for a planned expansion.
In Hurst, Texas, 127 homes were in the way of a private real estate company's mall expansion. The city used its power of eminent domain to take the land and oust the homeowners.
A state law in Connecticut allows cities to vest eminent domain authority in private organizations. With that power, the New London Development Corp. sought to condemn an entire historic neighborhood with the plan being to bulldoze the land and then find interested developers. The challenge by the homeowners is still in court.
And in parts of Illinois, condemnation was literally for sale. The Southwestern Illinois Development Authority, a body created to promote economic development, advertised that it would condemn land for "private use" by "private developers" for a fee. Its "Quick-Take Application Packet" cost private developers $2,500 plus a commission of between 6 and 10 percent of the acquisition price.
After a local racetrack couldn't get the owners of a metal recycling center to sell a 148.5-acre tract, the racetrack went to SWIDA for a "quick-take." The authority justified the taking by saying the land would be used to expand the racetrack's parking lot, thereby enhancing traffic flow and expanding the tax base.
During the ensuing litigation, the president of the racetrack actually testified that it could meet its parking needs by building a parking garage on its own land but it was much cheaper to have SWIDA condemn the recycling center.
In April 2001, a sharply divided Illinois Supreme Court upheld the condemnation as constitutional, but later granted a rare rehearing. A year later came the good news: The court went the other way and allowed the recycling center to keep its land.
"It appears SWIDA's true intentions were to act as a default broker of land for (the racetrack's) proposed parking plan," wrote the court. "If property ownership is to remain what our forefathers intended it to be, if it is to remain a part of the liberty we cherish, the economic by-products of a private capitalist's ability to develop land cannot justify a surrender of ownership to eminent domain."
On the Castle Coalition Web site, www.castlecoalition.org, you will find the "Eminent Domain Abuse Survival Guide." It is a manual for owners potentially facing condemnation, informing them of everything from effective coalition-building and lobbying to how to "make noise." All in the hopes of getting owners a fair shake in a process that, for many years, has been looking more like a shakedown.