- The Washington Times - Thursday, April 11, 2002

Is it legal for the government to use its power of eminent domain to condemn private property, then transfer the same property to another private owner for development purposes? Or does such action represent an unconstitutional "taking" of private property? The debate centers on the definition of "public use" under the Fifth Amendment of the U.S. Constitution, which reads " nor shall private property be taken for public use without just compensation."

During the last few years, thousands of court cases throughout the country have dealt with the issue but the results have varied widely. In some cases, local and state courts sided with the government; in others, the courts sided with the property owner. On April 12, the U.S. Supreme Court will have the opportunity to decide whether or not to accept for review a case that could settle the issue once and for all. Let's hope the justices decide in the affirmative.

The case revolves around 1.4 acres of prime downtown property owned by Moshe Tal, a small Oklahoma City developer who became a local hero for his rescue efforts during the 1995 Murrah Building bombing. Mr. Tal originally submitted plans to develop the site for private retail shops, restaurants and entertainment facilities. However, in 1997 the city condemned the property, saying it was needed for public parking, parks, and recreational facilities as part of its 1993 Master Plan even though the property had never been included in the master plan.

The city offered Mr. Tal only $50,000 for the condemned property, which is worth more than $5 million on the open market. Mr. Tal sued the city, but the trial court said the city had the right under its eminent domain powers to condemn private property for "public use."

The city's true intent became apparent in July 1998, when it made plans to sell the property for $165,000 to a rival developer who also intended to develop the property for restaurants and private retail businesses.

Mr. Tal went back to court, charging that the city had misrepresented its true intentions to the trial court by actually taking the land with public powers for transfer to another private developer. Mr. Tal alleged that the city's stated reasons for the taking "were false and deceptive," and that the city had engaged in "fraudulent activities."

Mr. Tal argued vigorously that the city's actions had violated his constitutional rights to "just compensation" and "due process" under the Fifth and 14th Amendments, but the state courts completely ignored these constitutional issues. The trial court dismissed Mr. Tal's challenge, and the Court of Civil Appeals and Oklahoma Supreme Court denied Mr. Tal's appeal based on technicalities. Mr. Tal hopes the U.S. Supreme Court will consider the case on its merits.

Since Mr. Tal filed his Petition for a Writ of Certiorari in February, three major cases have been decided in state supreme courts in favor of property owners on principles similar to what Mr. Tal is arguing. In one case, the Connecticut Supreme Court ruled that the City of Stanford had acted improperly in condemning property that was not part of an earlier redevelopment plan. In another, the same court ruled that the City of Bridgeport was unreasonable in failing to consider integration of the Pequonnock Yacht Club's property into the city's redevelopment plans, and, therefore, the taking of the property by eminent domain was not necessary just as Oklahoma City had failed to consider integrating Mr. Tal's original development plans into its Master Plan.

In the most recent case, on April 4 the Illinois Supreme Court struck down an attempt by the Southwestern Illinois Development Authority (SWIDA) to condemn land owned by National City Environmental and give the property to the Gateway racetrack next door for additional parking, calling the government's action "a misuse of the power entrusted by the public."

Although it appears, fortunately, that the tide may be turning in favor of private property rights, courts throughout the country are still wrestling with legal issues surrounding the government's right to take property and transfer it to other private parties. The growing number of conflicting rulings in different jurisdictions throughout the country demonstrates how much the Supreme Court's guidance is needed.

F. Patricia Callahan, an attorney, is the founder and president of the American Association of Small Property Owners.

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