Limits on Eminent Domain May Go Too Far, Experts Warn

The U.S. Supreme Court earlier this year upheld the right of local governments to seize private property to spur economic development. Since then, Congress and at least 38 states have moved to defend property rights. Some experts warn the flurry of new legislation could block necessary development projects.

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RENEE MONTAGNE, host:

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The US Supreme Court earlier this year upheld the right of New London, Connecticut, to seize family homes under eminent domain to spur economic development. Critics warn that basically grandma's house could be knocked down to make way for a mall. Since then, Congress and at least 38 states have moved to defend property rights. Some experts warn that the flurry of new legislation goes too far and could tie city's hands in unintended ways. NPR's Chris Arnold went to Portland, Maine, to find out more.

CHRIS ARNOLD reporting:

Unlike New London, the city of Portland is not planning to force people to sell property where families have lived for generations.

Mr. WILLIAM GORHAM (Portland City Councilman): We're not taking my grandmother's house or your grandmother's house. We're not forcing people out of their homes.

ARNOLD: William Gorham is a city councilman in Portland. He's walking along an old industrial section of the city's waterfront. The city has big plans for this area, which now includes a weed-strewn parking lot and the abandoned remnants of a wooden pier.

Mr. GORHAM: This will all be redeveloped. We'll have marinas in here. We'll have a public pier in here to allow families to walk out, go fishing. It'll be all covered over with grass. We'll have lights, benches, picnic tables.

ARNOLD: There will also be a big cruise ship terminal, a hotel and hundreds of condominiums. It adds up to about $250 million in redevelopment, some of it private and some public. But Gorham says the city needed its power of eminent domain here to make this happen, a power this and many other cities would lose if proposed legislation goes through.

(Soundbite of train horn)

ARNOLD: Here in Portland, someone has been standing in the city's way. Phineas Sprague is a wealthy land owner and a founder of a narrow gauge railroad that carries kids and parents on a mile-long scenic ride along the shore. The redevelopment project is not threatening the railroad but Sprague owns an easement that could allow him to build railroad tracks where the city wants condos. And he says he's been trying to get the city to swap some development rights in exchange for those railroad rights.

Mr. GORHAM: He basically said, `Look, you know, the city has no money. Let's figure out how to do a non-cash trade.'

ARNOLD: But they couldn't work anything out. Sprague blames bad communication by city planners; city councilor William Gorham says Sprague's requests were unreasonable, and it got to the point where this little railroad easement was holding up the whole project.

Mr. GORHAM: It's absolutely ridiculous. He's holding the city of Portland hostage and we, as elected officials, cannot allow that to happen.

ARNOLD: The city took the easement by eminent domain. Sprague is suing but allowing the project to go forward. Officials with the National League of Cities say eminent domain is usually not used to take people's homes but rather to take more mundane things--a warehouse, a parking lot or an easement for a project that's clearly in a city's best interest. But after the Supreme Court ruling, dozens of states are crafting laws that would block cities from using eminent domain in all these situations if any private development is involved.

Professor DAVID BARRON (Harvard Law School): I think it's very troubling.

ARNOLD: Harvard Law School Professor David Barron specializes in state and local government law. He says that legislators are going way too far, especially at the federal level. Earlier this month, the House overwhelmingly voted to deny federal redevelopment money to local governments that use eminent domain for projects that involve, quote, "economic developments." Similar legislation has been introduced in the Senate. The state of Alabama has already passed a law that blocks takings for projects that include private developments. The idea behind such laws seems to be that it's appropriate for a town to seize property to build a highway or a post office but not to let a developer build pricey condos or a Wal-Mart store. Barron says the problem is that lawmakers may be blocking the next Lincoln Center or Inner Harbor in Baltimore.

Prof. BARRON: Go around Lincoln Center area, it's not all government owned. Go around the Inner Harbor when you enjoy the crabs that you eat there or the bowl of clam chowder that you have there and you're looking out the over boats and you're enjoying yourself strolling through those stores. That is a public-private partnership and it came about through an exercise of eminent domain.

ARNOLD: Looking forward, many experts say eminent domain will be a vital tool for rebuilding New Orleans and the Gulf Coast. Barron asks why pass laws to block that, especially if the city is just seizing a warehouse or old industrial land? That said, there will always be tough judgment calls. The Supreme Court ruled that those judgments should remain at the state and local level. In that New London, Connecticut, case, the city decided that the benefits of a 90-acre project with park space, condos, offices and a waterfront hotel made it worth seizing property from seven homeowners. Others saw it differently. Attorney Dana Berliner represented the Connecticut homeowners.

Ms. DANA BERLINER (Attorney): Basically, New London said, `We want richer people here. We don't want these working-class homeowners. We want richer condominium owners.'

ARNOLD: Berliner is in the camp that thinks it's just unfair for people to be losing property of any kind to projects with a private component. She says as new laws are crafted around the country, politicians can make allowances for truly exceptional cases like the next Lincoln Center. But she says for the vast bulk of redevelopment projects, cities should certainly be blocked from knocking down homes and businesses to replace them with upscale condos or hotels. Chris Arnold, NPR News.

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