- The Washington Times - Thursday, August 18, 2005

After the U.S. Supreme Court decided the Constitution allows homes to be taken for potentially more profitable, higher tax uses, the defenders of eminent domain abuse already have begun desperate attempts to keep the power to take homes and businesses and turn them over to private developers. And they are struggling to convince outraged Americans that they shouldn’t care.

The U.S. Congress and legislatures in more than 30 states have either introduced reform legislation or announced they will do so. The beneficiaries of the virtually unrestricted use of eminent domain — local governments, developers and planners — will frantically lobby and try to scotch any attempt to diminish their power. Here’s what they are saying:

• “Nothing’s changed. We’ve been doing this for years.” Many commentators have tried to minimize the Supreme Court’s decision by saying it didn’t change the law.

Typical was Matthew Greller, executive director of the Indiana Association of Cities and Towns: “It is important to understand that this decision does not provide ‘new’ or ‘unprecedented’ powers to government.”

Far from comforting readers, this should frighten home and business owners even more because those commentators are right: Government has used eminent domain regularly to assist private developers for years. I documented more than 10,000 properties either taken or threatened with condemnation in a just five-year period by counting properties listed in news articles. In Connecticut, the only state that keeps separate track of redevelopment condemnations, I found 31, while the true number was 543. My research documents merely the tip of the iceberg; there are thousands more condemnations for private businesses and many more people forced to sell “voluntarily” under threat of eminent domain.

• “We’ll only use eminent domain as a last resort.” According to the eminent domain apologists, like Donald Borut, executive director of the National League of Cities, everyone should calm down because… our public officials have everyone’s best interests at heart. Mr. Borut said, “Local elected officials are often called upon to make tough choices between the long-term community good and the property rights of individuals. … Eminent domain is not a tool to be used lightly. In fact, it is most often used as a last resort.”

Beware when local officials say they will use eminent domain as a last resort. What they really mean is they’ll come up with plans requiring people to move and then take the property “as a last resort” when residents refuse to move “voluntarily.”

When they take someone’s home for a shopping mall, they’ll only do it for a successful shopping mall. City leaders will feel really bad about kicking those people out. They’re not acting to benefit a wealthy developer. They are “bravely” making hard decisions to improve the tax base and everyone’s city services.

One might ask why it’s so brave of city leaders to decide someone else must sacrifice his home or business. Where do city councils offer their own neighborhoods, or their parents’, for private development to supposedly revitalize the city?

But the bottom line is: If you’re losing your home so someone richer can have your property, it really doesn’t matter if your local government officials were thinking about the tax revenue or thinking about the developer.

• “But we need economic development.” The final stand for the defense of eminent domain abuse is the specter the city somehow will go down the tubes unless it can confiscate property for large development projects. As the New York Times (itself a major beneficiary of eminent domain) editorialized: “Connecticut is a rich state with poor cities, which must do everything they can to attract business and industry. New London’s development plan may hurt a few small property owners, who will, in any case, be fully compensated. But many more residents are likely to benefit if the city can shore up its tax base and attract badly needed jobs.”

These claims are at best disingenuous, at worst outright dishonest. There are many, many ways to encourage economic growth that do not involve taking someone else’s property. Will the city be able to have condos and a Target on exactly that corner? Maybe, maybe not. Will the city be able to have business development if its bureaucrats are willing to relinquish their desire to say exactly what and exactly where development will occur? Absolutely.

Despite these spurious claims, Americans are not reassured — nor should they be: City leaders have in fact missed the point entirely. The problem is everyone understands the rationale of economic development — less profitable uses can be taken for more-profitable uses — goes against everything America stands for. It enshrines power and privilege over hard work and individual choice.

America is still the Land of Opportunity, where people can work hard and buy a home or start a business and provide better for their families. Almost everyone in the country has ancestors, often recent ones, who started out dirt poor and worked so their children would have more than they did. They bought small homes and started small businesses — things now considered inefficient uses of property, to be replaced by larger and fancier projects with higher-income patrons.

The American Dream still rings true for so many. And to the vast majority of Americans, that dream, the soul of our country, is more important than a successful shopping mall.

Dana Berliner is a senior attorney with the Institute for Justice, which argued the eminent domain abuse case before the U.S. Supreme Court.

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