- The Washington Times - Wednesday, August 11, 2004

The Michigan Supreme Court recently reversed a decision that led to the razing of a neighborhood called Poletown to make way for a General Motors Corp. plant in Detroit nearly a quarter-century ago. The reversal has national implications.

The original Poletown case provided governments with the legal weaponry to seize private property in the name of a greater public good. This usually led to the land being awarded to a private developer who presented the remade property to a company that could pay higher taxes than the previous owners.

This slippery deployment of eminent domain resulted in one legal challenge after another during the past 23 years, as the original Poletown decision allowed politicians to expand their pursuit of more taxes and play loose and reckless with people’s constitutionally protected property rights.

The Michigan Supreme Court’s reversal on July 30 hardly came in time for the residents of Poletown. But its application is certain to be put into play by the various lawyers representing the property owners and merchants of the Skyland Shopping Center in Southeast.

The Connecticut Supreme Court cited the Poletown decision of 1981 earlier this year after ruling in favor of the New London government, which wanted to uproot waterfront owners and erect an office building on their property.

That case, along with one in Toledo, has wound its way to the U.S. Supreme Court, with the property owners suddenly empowered by the reversal in Michigan. The U.S. Supreme Court has yet to rule on whether it will hear the cases.

However it goes down, Poletown is a powerful turn that has been embraced by the District-based Institute of Justice, a property-rights law firm that labors on behalf of small property owners.

It also is being taken as a powerful sign of hope among the beleaguered property owners and merchants of the 16.5-acre Skyland site east of the Anacostia River.

They have been forced to live with the threat of being put out of business because of the “greater good.” As they have come to know, the government’s rallying cry of “public benefit” is an ill-defined one, extending well beyond the original purpose of eminent domain. It even could apply to the low-end homes in a residential neighborhood whose tax contributions are lower than those of their neighbors.

The “public benefit” in a particular neighborhood would be for all the homes to be of equal value. Eliminate the low-end homes, build homes commensurate with the neighborhood, and the city has provided the “public benefit” with an increased tax base.

That, in effect, was the chilling decision of the 1981 Michigan Supreme Court, however unintentional. That judicial mistake finally has been undone. The precedent is no more and the playing field altogether different, said Jeffrey Utz, a lawyer with Shaw Pittman LLP, the downtown law firm that represents one of the Skyland property owners.

“Basically, it begins to shift the whole thinking on eminent domain in the judicial system,” Mr. Utz said yesterday. “It certainly gives us something to point to, this whole taking of property from one private party and giving it to another, as we have been saying all along.”

The 1981 Poletown decision, inadvertent or not, became an oft-cited case in expanding the definition of eminent domain, traditionally used to eliminate the problem of long-abandoned buildings or implemented for highway and bridge projects. It hardly was intended to destroy the dreams of homeowners or merchants making a living in a fully leased shopping center.

“It will be interesting to see what happens with the two applications before the U.S. Supreme Court,” Mr. Utz said.

A favorable ruling would send the most powerful message yet to the mayor’s office, the D.C. Council and the National Capital Revitalization Corp. and arm Skyland’s attorneys with the ultimate weapon.

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