If you believe your home is your castle or that the government can only take
it for public use, you should be warned otherwise, says a public-interest
law firm that documented thousands of cases nationwide where governments
have abused eminent domain.
The report, titled "Public Power, Private Gain," is the first of its kind
nationwide to document how often government confiscates private property and
hands it over to private developers, says the Institute For Justice, a
libertarian-oriented firm based in Washington, D.C.
"This report is a wake-up call to all citizens," says Dana Berliner, a
senior attorney at the institute and author of the report. "Your property
can be taken away by the unholy alliance of government and business
interests. It is happening all over the country, and it can happen to you."
In the report, Berliner discusses more than 10,000 cases where homes,
businesses, churches and private land were seized or threatened with seizure
over the past five years - not to be used for public use, but instead for
private for-profit development.
The concept of eminent domain is defined as the right of government to take
private property for public use "by virtue of the superior dominion of the
sovereign power over all lands within its jurisdiction," according to the
Merriam-Webster online dictionary. The Fifth Amendment to the U.S.
Constitution prohibits the federal government from taking private property
for public use without "just compensation" to the owner.
Among the examples cited by the report include the condemnation of a
family's home so that the manager of a planned golf course could live in it;
the eviction of four elderly siblings from their home of six decades for a
private industrial park; and the removal of a woman in her 80s from her home
of 55 years, allegedly to expand a sewer plant but in actuality to give her
home to an automobile dealership.
The report said that since 1998 there have been 10,282-plus filed or
threatened condemnations for private parties with reports of actual or
threatened condemnation for private parties coming from 41 states.
John Kramer, vice president for communications, said the institute would
release its findings to the public today at the National Press Club in
Washington.
Besides the federal Constitution, the firm says every state's constitution
also imposes similar eminent domain restrictions on government.
"In America, private property can only be taken for a public use, not for a
private use," the institute said, in a statement.
But, as the report denotes, "state and local governments believe they can
condemn anything for any purpose, no matter how blatantly private," the
statement continued.
States with the worst record of private-use condemnations, the firm said,
are California, Kansas, Maryland, Michigan and Ohio. Runners-up include
Pennsylvania, Florida and New Jersey.
Cities with the worst record are Detroit, Riviera Beach, Fla., San Jose,
Calif., and Philadelphia.
"From a legal standpoint," the institute said, the worst states in which to
live for property owners seeking to avoid condemnation are New York,
Missouri and Kansas.
But the institute's report also contained some good news for property
owners: "The best states [to avoid condemnation of property] are Delaware,
Georgia, Idaho, Montana, New Hampshire, New Mexico, South Dakota and
Wyoming, none of which had any reported eminent domain for private use."
In its February 2003 issue, Reason Magazine published a story chronicling
eminent domain abuses. It said some property owners are getting legal
satisfaction, but that those cases could be the exception.
"Despite recent victories, the courts are unlikely to be much help in
reining in abuses of eminent domain," the magazine reported. "In fact, many
of the recent victories against eminent-domain abuse have resulted from
nonjudicial remedies."
Not everyone agrees eminent domain is being abused.
"The fact is that in the average community in the typical state, the system
is working well," claims the American Planning Association, a nonprofit
public interest and research organization, Reason magazine reported.
"Property-rights advocates are waging a guerrilla war of sound bites,
misleading 'spin doctoring' and power politics which characterizes
government at every level as evil empires of bad intent."
Critics argue that sometimes eminent domain is needed so local governments
and private real estate partners can move quickly on development projects.
"Eminent domain is critical for local redevelopment efforts," says John
Bowers, executive director of the Arizona Association for Economic
Development. "Without it, it would be virtually impossible for a city to
assemble a multi-parcel piece of property for redevelopment."
In August, the Phoenix-based Goldwater Institute addressed eminent-domain
abuse in Arizona.
"Despite strong protections for private property in the Arizona
Constitution, municipalities increasingly have been taking private property
from landowners for use by other private citizens and by corporations," the
institute said, in a statement. "These abuses of eminent-domain power have
been enabled in recent years by the 1997 redevelopment statute."
Berliner says the most common excuse for abusing eminent domain is for
governments and developers to cite "community" betterment, a concept he says
doesn't exist.
"Communities have no rights (to execute private-use condemnation) - not
under natural law, not under common law and not under the Constitution," he
says, even if most local people favor a particular development project. "It
was to prevent just such abuses, the tyranny of majority over minority, that
the Founders wrote our Constitution."
