Eminent Domain: States restoring what court stole

By Bill Steigerwald

Sunday, July 8, 2007

Remember the Supreme Court's infamous eminent domain case in June 2005?

Kelo v. City of New London originally was filed in hopes of getting the Supreme Court to prevent misguided and morally challenged local governments like Pittsburgh's from doing what they'd been doing for decades -- abusing the power of eminent domain.

Kelo, of course, backfired on its supporters.

Instead of the Supreme Court upholding the clear intent of the Fifth Amendment -- which says private property could be taken only for "public" purposes -- Kelo gave local governments even more loopholes to practice their legalized thievery.

But a funny -- and societally good -- thing has happened in the aftermath of Kelo.

The Constitution-mocking 5-4 decision instantly generated a national bipartisan storm of indignation. Property owners and their advocates captured that political fury and directed Hurricane Kelo at state capitols.

Now, two years later, according to the tally kept by lawyers at the Institute for Justice -- the country's premier defender of property rights -- 41 state legislatures have enacted eminent domain reforms.

In states like Virginia, for example, city officials can no longer use "blight" designations to justify condemning and seizing private property they covet for their redevelopment plans or their corporate friends.

Only a handful of the reforms are perfect. The Castle Coalition, the nationwide network of citizen activists that the Institute for Justice formed to fight eminent domain abuse in their local communities, gives out only five "A's" in its comprehensive 50-state report card of reform efforts.

Florida, Michigan, New Mexico and North and South Dakota are states "in which it is now impossible or extremely difficult" for the government "to take a person's home or business and give it to someone else for private gain."

Pennsylvania is among 15 states that got "B's" (actually a B-). Miraculously, and out of character for a commonwealth that pioneered eminent domain abuse in the 1950s, our home legislature last year passed the "Property Rights Protection Act" with near unanimity.

The great news is that the law prohibits the use of eminent domain "to take private property in order to use it for private enterprise." Plus, it also puts significant limits on the definition and use of blight as an excuse for governments to wield eminent domain.

The no-so-great news -- what the Castle Coalition report card says is the bill's serious drawback -- is the legislation's "glaring exception" for such serial abusers as the governments of Pittsburgh and Philadelphia.

Proving that the well-funded, politically connected people and corporations that benefit from eminent domain abuse are still alive and powerful, the new bill allows both cities to continue to condemn property within areas that have been previously declared blighted under state urban renewal laws for another seven years.

Unfortunately, long ago much of the City of Pittsburgh (including Downtown) was designated blighted as a calculated way to "legally" enable City Hall's foolish or unconsummated redevelopment schemes.

Which is why some folks who own property around the footprints of the coming new hockey arena in the Hill District are not sleeping as well as they should.

Bill Steigerwald is the Trib's associate editor. Call him at (412) 320-7983. E-mail him at: bsteigerwald@tribweb.com.



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