Eminent domain, the right of government to seize private property, was written into the U.S. Constitution. But so too was the Takings Clause of the Fifth Amendment, which said that property could be taken only for public use, and on condition that its owners be justly compensated. In recent years, however, local governments, seeking to draw business and development into primarily residential neighborhoods, have increasingly invoked their power of eminent domain to seize houses and put the land they sit on to private use — an expansion of the power that many legal experts deem unconstitutional. And so, all across the country, legal battles are being fought between homeowners on one side, and cities, developers and businesses on the other.
Scott Bullock is a Senior Attorney with the Institute for Justice, a civil-liberties law firm that has taken on several eminent domain and other private property cases that pit homeowners against developers as powerful as Donald Trump — in one IJ case homes in New Jersey stood in the way of a Trump Tower parking lot — and won.
Bullock is currently working on behalf of residents of Norwood, Ohio against developer JR Anderson and the City of Norwood, which condemned their properties to make way for a shopping and development complex. He is also filing opening briefs in another eminent domain case — this one in New London, Connecticut, involving an neighborhood slated to become a hotel and condo complex — before the U.S. Supreme Court.
MotherJones.com recently spoke with Bullock about the growing nationwide problem of eminent domain abuse.
MotherJones.com: The power of eminent domain is written into the Constitution, our Fifth Amendment. What was the original intent of the power?
Scott Bullock: Eminent domain has always been considered what is known as a “sovereign power of government.” It actually predates the Constitution. But the Constitution imposed limitations on the power of eminent domain through the Takings Clause, which recognized that it was a sovereign power but declared that private property shall not be taken for public use without just compensation, thereby providing two important protections to property owners: If the government takes your property they have to pay you for it. But they can only take it in the first instance if it is for a public use.
The Founders knew eminent domain was one of the most awesome powers a government has at its disposal — to take away your home, to take away your land; short of putting you in jail or killing you that is about the most serious thing a government can do to its citizens.
MJ.com: How has the use of eminent domain changed over the years?
SB: It was clearly designed originally to be used for true public works projects — if you had property that was going to be owned or used by the public, like a courthouse, or a road where you needed a long strip of property, and one or two people wouldn’t sell. That was largely how the power was used from the time of the founding up until the 1800s. There was a slight expansion of eminent domain in the 1800s to include things like railroads and utility lines and things like that whereby the property was going to be owned by a private [entity] like a railroad or a utility company, but they were really the equivalent of public types of facilities. In the 20th century the power was expanded even further to include the condemnation of so-called blighted areas and urban renewal projects.
Today, eminent domain is being used, like in the New London, Connecticut case we have before the Supreme Court, purely for the generation of more tax revenue — purely for economic development and for private business development. This is an incredible expansion of eminent domain power. What we are asking the Supreme Court to do is impose clear limits on eminent domain authority and to recognize that mere business development cannot be considered a public use under the constitution because of the supposed trickle-down effects in the form of jobs and taxes that those businesses might create.
One of trends we have seen is use of eminent domain for big-box retail stores. (Cities are very intent on trying to attract the Targets and the Home Depots into their area.) And that is incredibly short-sighted on so many levels. You are not only abusing the power of eminent domain, but you are oftentimes destroying the very businesses and institutions that make your community unique.
MJ.com: What kinds of neighborhoods are particularly vulnerable?
SB: Typically working-class neighborhoods that happen to be in nice locations. Developers want neighborhoods that are up and coming and ones that have more desirable locations, with nice views or by the water or convenient to the interstate. And it does oftentimes affect poorer communities, communities with large elderly populations, people who have owned their homes for a long time and don’t have mortgages and are dedicated to their neighborhoods. Those are the neighborhoods that are typically targeted as opposed to truly blighted neighborhoods where there would be an interest in redevelopment.
MJ.com: But governments do sometimes declare areas blighted in order to seize property, right?
SB: Yes. It really started back in the 1940s and 1950s. The government can always condemn your land if it is uninhabitable; falling down, rat-infested buildings will always be condemned as a threat to public health and safety. [But] that is not what blight condemnations are about. Blight condemnations are declaring whole areas to be “blighted,” and that was developed back in the 40s and 50s through urban renewal powers, and the eminent domain power was expanded further then.
The abuse of blight laws is a common thing that is happening throughout the country and I think that will continue to grow. Norwood is a classic example of that. Nobody thinks that that neighborhood is blighted and the use of blight laws in that neighborhood was clearly a means to an end. They simply wanted to get this property and they declared it blighted in order for the city to be able to use eminent domain power.
MJ.com: Does the Institute for Justice take issue with eminent domain per se or just the abuse of the power?
SB: We recognize that eminent domain is a constitutionally recognized power that can be used for true public uses. What we are challenging is … the unholy alliance between government and private businesses to take away people’s property — typically large businesses teaming up with government to take the land of middle class and oftentimes poor individuals in the hope that the businesses will make a profit and as a result of that profit the city will gain more tax revenue. It is a perverse system and one the courts are realizing is not what the eminent domain power was designed to be used for.
People cannot believe that in America the government can take your home to give to Wal-Mart. There has been a lot of genuine grassroots opposition to abuse of eminent domain. The only people who support it are the ones who stand to make money off of it: the businesses that want to get the land and the governments who want to get the tax dollars from the businesses.
MJ.com: What do you say to the argument that using eminent domain powers for private development can help bring in revenue to struggling localities and transform stagnant neighborhoods?
SB: There are a number of different ways for communities to attract development and deal with lower taxes. Look: governments are always going to want more tax revenue. That is clear. And developers are always going to want more land in order to build their projects. But that cannot be a justification for the use of eminent domain because there you really are talking about the use of eminent domain without limitation and you simply cannot have economic development at the expense of constitutional rights. Everyone recognizes, yes, it is important to have economic development, and there have to be ways for these cities to find new ways to bring in revenue, but it can’t be done at the expense of the Constitution and it can’t be placed upon the backs of poorer individuals within the community. That is not the way we do things in this country.
MJ.com:A recent IJ report on eminent domain found more than 10,000 cases of the power being used for private development, correct?
SB:Yes. One of the reason we did the report is that people asked us — they had a sense that this was a growing nationwide problem [but] there were no numbers on it. Our study was the first effort of its kind to put some real numbers to this problem and to see its extent. And of course we all know that those numbers are less than the true number of private-to-private condemnations, because we are sure there are many other projects that occurred that were never reported on or we were unable to find information on as well.
MJ.com: Are the abuses of eminent domain increasing?
SB: It’s a growing problem. It’s happening in 41 states, What you should realize is that most development in this country still occurs without eminent domain. It occurs the way it always has, with people sitting down and negotiating and trying to work out an arrangement to buy and sell property. That is the way development should be done, through private negotiation not through government force. Government should not play the role of a real estate-broker.
MJ.com: There are many egregious examples of abuse of eminent domain in the report. Can you point to one or two that stand out in your mind?
SB: One of the most notorious examples in the last 20 years was the Poletown case (Poletown v. Detroit). The case out of Detroit, Michigan where Poletown, a classic working-class neighborhood of churches and businesses, small businesses and homes, was destroyed for a General Motors plant — a plant that failed to live up to its expectations as to what it would contribute to the economy of Michigan. This was a neighborhood that was not blighted in any way. But the Michigan supreme court approved its condemnation in the early 1980s to make way for this and justified it on the grounds that Detroit needed more taxes. [Poletown] was extremely important because it became a textbook case of the sweep of eminent domain authority. Everybody, courts and commentators alike, pointed to that case as the example of the power of eminent domain and the fact that the public-use requirement meant very little in the country anymore.
What happened this year is that the Michigan supreme court unanimously overtuned Poletown. They said it was a mistake, that it violated people’s constitutional rights and it will no longer exist as the law in Michigan. That was an incredibly significant opinion. It demonstrates that the tide is turning and that even courts that had previously supported these very broad expansions of eminent domain power are rethinking this and seeing the abuses and putting a stop to them.
MJ.com:IJ has a toolkit for citizens who may be facing eminent domain. Aside from litigation what are some of the strategies you suggest for people worried about this?
SB: The main thing is to find out as much information as possible about the project and what is going on. And then to alert your neighbors and other business people in the area as to what is happening and what the potential consequences are, for instance, when an area to be declared blighted or an economic development plan being pushed through. Cities and developers love to hide the ball and they want to keep this under the radar screen as much as possible.
The key early on is to gather as much information as possible, shake the trees, force the information out of the government, through the filing of FOIA requests if need be. Educate the people in the community. If it moves forward, then is the time to organize opposition to the abuse of eminent domain and to alert other people in the community as to what the government is attempting to do.
MJ.com: Are any politicians championing this issue?
SB: Some political figures are starting to come around on this. There have been some reform efforts. There is an Orange County supervisor in California, Chris Norby. He runs the organization, Municipal Officials for Redevelopment Reform. He has been looking at this issue for a long time.
On the other hand, you have a lot of powerful folks on the other end. You have groups like the National League of Cities, developers and big businesses and others that team together to push these projects through and to oppose any efforts to curtail eminent domain power.
MJ.com:The Supreme Court has agreed to hear an eminent domain case. Oral arguments will be heard toward the end of February, with the decision sometime in May or June. What impact are you hoping for?
SB: We certainly hope it will have a big impact. You never know how the court is going to rule, how broadly or how narrowly they are going to decide a particular case. At a minimum we hope to win for these property owners and we hope in the process to provide some real protections for home and small business owners throughout the country.
MJ.com: Can you give us an update on the Norwood case? Where does it stand?
SB: We are up on appeal right now. We are trying to save all of the homes and businesses. The developer and the city are intent to drive the people out of that area. Three property owners have had their compensation trials. Everybody is still there but they want some of them out as early as January. We are going to continue to fight that and try to get injunctions from the appellate court to put a stop to it.
MJ.com: It does seem that the courts are the most effective venue for staving off eminent domain abuses.
SB: Well, it’s difficult to get eminent domain reform legislation passed because of the power of the people on the other side of this. But one of the [other] strategies we see happening in several communities is the use of initiatives and referenda to put this on the ballot. We have seen a lot of success in people doing that, like in Lakewood, Ohio, where we had an eminent domain case. We were challenging a bogus blight designation that was very similar to the one that is at issue in Norwood. As a matter of fact Jeffrey Andersen was also behind that project. That was put on the ballot and defeated. The project was defeated, the blight designation was lifted through the initiative. The mayor that led the charge on this project was thrown out of office as well. When citizens are actually given a chance to vote on these things they often times will be defeated.
There was an initiative in Baltimore County, Maryland, in 2000, where the county wanted to drastically expand its ed powers for private development and that went down to defeat, the project and the expanded powers, by a margin of 70 percent to 30 percent. So eminent domain abuse is wildly unpopular when it is actually put up to a vote. I think you are going to see more of those efforts to stop eminent domain abuse through the ballot box.