- The Washington Times - Monday, November 8, 2004


By Steven Greenhut

Seven Locks Press, $17.95, 311 pages

For more than two decades the Michigan Supreme Court’s decision in Poletown Neighborhood Council v. Detroit allowed governments in that state to take most any property they wanted for most any reason they wanted. The U.S. Constitution’s “public use” restriction was satisfied, the court ruled, even when Detroit seized an entire ethnic neighborhood to hand over to General Motors for a new factory.

Alas, that case was no anomaly. As Steven Greenhut, an editorial writer for the Orange County Register, observes in his timely new book, “Abuse of Power: How the Government Misuses Eminent Domain,” “governments increasingly use eminent domain to take property from one private owner in order to give it to another private owner.” A small homeowner or businessman then “must surrender his home or business because a wealthy developer — perhaps a big campaign contributor and mover and shaker in the community, or an out-of-town corporation promising an expanded tax base for the city — has bigger and better plans for it.”

The abuses are legion. But sometimes property owners — “ordinary heroes,” Mr. Greenhut calls them — fight back and beat city hall. Today they often do so with the aid of the Washington-based Institute for Justice, which has made protection of property rights one of its top objectives.

So rank have been the outrages that in July the Michigan Supreme Court expressly overruled its Poletown decision. Although the latter case had no formal legal force outside of Michigan, it was oft-cited by other courts.

Indeed, all legal eyes now fall on the U.S. Supreme Court, which is considering a case involving the City of New London, Conn. The Connecticut Supreme Court, relying upon the reasoning of Poletown, upheld the plan by the New London Development Corp. to take scores of modest riverfront homes and businesses to build luxury houses, expensive office space and a hotel. “How come someone else can live here, and we can’t,” asks Susette Kelo, one of the dispossessed landowners.

Mr. Greenhut’s answer is that someone else gets to live there when local officials decide to engage in social engineering for fun and profit. Increasingly, governments deploy eminent domain in an attempt to create “high-valued,” meaning taxable, development, and enrich local elites.

The heart of Mr. Greenhut’s book is a series of examples of how governments routinely misuse their power and how property owners increasingly are fighting back.

For instance, the city fathers of Garden Grove, a working-class community south of Los Angeles, decided to turn a tidy neighborhood of 400 into a theme park. Explains Mr. Greenhut: “There was no developer in mind, just an idea in the head of the city’s top planners and bureaucrats.”

Officials attempted to deny the obvious, while treating the neighborhood as blighted. No normal person would have thought that but, writes Mr. Greenhut, blight “is a legal term rather than a descriptive term.”

Happily, homeowners organized and forced the city to back down. Garden Grove removed the neighborhood from its “redevelopment” area.

Equally outrageous was the attempt by Cypress, another Southern California city, to seize Cottonwood Christian Center in order to transfer the property to Costco. After all, churches don’t deliver much in the way of property or sales taxes.

But the 4,500-member interdenominational congregation fought back, aided by the Becket Fund, which specializes in defending religious liberty. Eventually, Cypress, which lost a preliminary court ruling, agreed to a voluntary land swap which yielded the church more room for its new worship center.

Adverse publicity helped derail an abusive taking by Atlantic City. Vera Coking, a widow, was unfortunate enough to live across from Donald Trump’s casino. Mr. Trump asked the local redevelopment agency to take Mrs. Coking’s property for a limosine parking lot for high rollers. With the help of the Institute of Justice, Mrs. Coking won.

Although the courts have been more willing to enforce the provision requiring compensation, they too often have allowed governments to take advantage of property owners. Moving expenses, business goodwill, advantageous locations, as well as real values, often are lost or minimized when figuring compensation.

The result would still be rank injustice even if the property was taken for a real public purpose. Instead, more often than not eminent domain is now used as a form of corporate welfare, intended to enrich billionaire retailers like Costco and millionaire real estate moguls like Donald Trump. Other favored beneficiaries are owners of hotels, race tracks and sports franchises. It’s “legal plunder,” Mr. Greenhut writes.

Mr. Greenhut’s worthy call to arms concludes with a practical primer on how individuals, families, churches and communities can fight back. Most important is an aroused citizenry prepared to defend their rights. “Ordinary heroes” who helped create this nation more than 200 years ago today can help protect us from abuses by that same government.

Doug Bandow is a senior fellow at the Cato Institute and served as a special assistant to President Reagan.

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