Lawmakers pressed to shield property - Reaction to eminent domain ruling may backfire, experts say

By NATALIA MIELCZAREK
Tennessean Staff Writer

October 8, 2005

Some Midstate residents say their property rights are threatened by a recent U.S. Supreme Court decision that could open doors locally for private developers to seize homes and build shopping malls, restaurants and business parks.

Echoing a national trend, city, county and state officials are responding to their constituents by crafting legislation that would limit or ban the use of eminent domain for purely economic development, a move perceived by some as futile.

In Tennessee, governments are allowed to condemn property for industrial parks or blighted areas. Otherwise, they can only exercise eminent domain for public projects such as rights-of-way, utility lines or airport expansions.

"Anytime you broaden the privileges of the government and take away from tax-paying citizens, especially homeowners, it's frightening," said David Hoke, a Murfreesboro resident who contacted his state representative, Sen. Jim Tracy, R-Shelbyville, with concerns.

Tracy is a co-sponsor of a bill that would prohibit use of eminent domain solely for economic development.

"I'm sure there are some instances when (eminent domain) happens for public good, but the interpretation of public good varies," Hoke said. "None of us want to think we go out, make an investment and run the risk of government stepping in."

The high court's decision, which stirred national debate, allowed a Connecticut town to use eminent domain to take over private property to build a private business park.

Although it happened hundreds of miles away, the case resonated with Wilson County residents enough to start calling their commissioners. The County Commission, in turn, unanimously passed a resolution last month that bans eminent domain for private projects.

"Property rights are our inherent rights in the Constitution," said Wilson County Commissioner Heather Scott, who proposed the resolution. "As Americans, more and more of our rights are being taken away from us every day. It's time for people to take a stand or our constitution becomes a piece of paper."

Wilson County's resolution, modeled after the one passed in McMinn County in East Tennessee, doesn't carry any legal weight. It only reaffirms the state law and is a way for local officials to reassure residents that their properties are safe from becoming restaurants, said James Ely, professor of law and history at Vanderbilt University, who's studied eminent domain for years.

"Most people don't know about the Tennessee statute because those people are not lawyers," he said. "What they see is a lot of publicity about a decision that was very controversial. In a developing county like Wilson County, it's not surprising that a lot of people might say: 'Gee, what's going on here? Are they going to turn around and take my house and build a supermarket?' "

Several state legislators have filed bills that would prohibit local governments from seizing private property for private development.

"You should not be able to take someone's property for economic development," said Tracy, whose state Senate district encompasses Bedford, Moore and parts of Rutherford counties.

"I know the state law already says that, but I just want to clarify it. We want to study it and make sure that the law is strong enough to keep that from happening."

Cookeville's City Council is considering a resolution similar to the one in Wilson County. There's nothing on the books to limit government's power of condemnation in Metro, Rutherford or Williamson counties, officials said.

"I don't think people locally are worried about it," Williamson County Commissioner Greg Davis said. "At this point, I don't think there's a great need to act on" the high court's decision. "It's more of a political grandstanding."

A local attorney who deals with eminent domain cases said that reaction from areapoliticians, to pass resolutions and legislation, is exaggerated.

"In order to condemn, it" a local government "has to have enabling legislation," said Dewees Berry, with the law firm Bass, Berry & Sims.

"These local governments don't have the power" to do what the local government in the Connecticut case did, "to take land that's not blighted, because the state law doesn't allow it."

Berry said passing the proposed bills in the state legislature to ban the use of eminent domain for private development may have some unintended consequences, especially in rural areas where industrial parks, allowed to be built with power of condemnation, have been a source of jobs.

"If you're going to say this blanket statement 'no condemnation for economic development,' then you can be limiting, or even eliminating, your right to condemn for industrial park or blighted areas," Berry said.