October 24, 2004

Commission Power of Eminent Domain Questionable

Little noticed in the election ruckus is the U.S. Supreme Court’s agreement to adjudicate a constitutional question that could turn the First Amendment upside down.

Will it make the Charlotte County commissioners chumps or champs?

Question before the court is the right of New London, Conn., to take private property for public use by the "power of eminent domain."  

Charlotte commissioners pushed that envelope by taking homes in the Murdock area and proposing to sell the properties to a private developer for up-scale condos and shops.

The wooded area was sparsely settled with modest homes yielding modest taxes. Rationale for the project is that it will produce more tax revenue for the county.

Presumably the extra cash will be used for good things elsewhere – or lower property tax rates overall. (Please, no snickering.)

New London council four years ago began exercising its power of eminent domain by taking over tax-depreciated homes along its riverfront. Announced purpose was to "enhance" a new Pfizer Pharmaceutical Co. research facility.

The New London council wants to turn over 90 acres of properties to a private developer for a luxury hotel, condominiums and private offices.

Sound familiar? The objective is the same as that of Punta Gorda in its development of the former city-owned mobile home park. .

Critical difference from New London is that Punta Gorda owned the waterfront site it wanted to redevelop in partnership with a private developer. No homes were confiscated.

Article 5 of the Bill of Rights is succinct: "No person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation."

Our Founding Fathers were sensitive to the abuse of government takings – cueing from a lecture to the House of Commons in 1763 by William Pitt the Elder:

"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it. The storm may enter and the rain may enter, but the King of England cannot enter. All his force dares not cross the threshold of the ruined tenement."

Most of the New London homeowners, under duress, accepted the purchase price imposed. Ten citizens refused to sell.  

The Connecticut Supreme Court held for the city 4-3. This is contrary to the long-held interpretation that "public use" means roads, parks, schools and government buildings.

First encroachment on this long-held meaning occurred at Washington, D.C., in 1954 to  support new social engineering -- urban renewal. Called "Negro Removal" by critics, it eliminated slum areas.

Detroit, Mich., did the same thing in 1981 to make room for a new General Motors plant. A thousand Poletown neighborhood homes, churches and businesses were taken by the power of eminent domain.  

The Michigan Supreme Court at the time upheld the taking. Connecticut courts cited that case in upholding New London takings.

Interestingly Michigan’s Supreme Court unanimously reversed the Poletown decision just days after the Connecticut court decision. Belated argument was that the Poletown taking was "a radical departure from fundamental constitutional principles."

Arguably, the taking of private property for another private owner -- to provide and profit by a worthy project -- has long-range benefits for society as a whole.

However, this philosophy carried to logical conclusion creates failed socialism – a la Russia, Sweden, France, Germany and a host of other economic basket cases.

The courts of Connecticut and six other states hold that the "public use" restriction means only that a taking must have some anticipated public benefit, however indirect.

Nationwide, more than 10,000 properties were threatened or condemned between 1998 and 2002 according to the Institute for Justice, a public interest advocate.

Seven states allow eminent domain condemnations for private business development.

Eight states, including Florida, forbid the use of eminent domain when the economic purpose is not to eliminate blight.  

Why, then, Murdock Village?

Three states – Delaware, New Hampshire and Massachusetts – have indicated they probably will find condemnations for economic development, alone, unconstitutional.

It is heartening that the U.S. Supreme Court will review the power of eminent domain.

We citizens of Charlotte County can move the process along by booting incumbent commissioners out of office and putting Murdock Village on hold until the Supreme Court acts.

Lindsey Williams is a Sun columnist who can be contacted at linwms@lindseywilliams.org