Misuse of Eminent Domain – Could it happen here?
Amesbury News. Friday, August 5, 2005
 
Six weeks ago, the U.S. Supreme Court handed down a decision that significantly changed everyone’s property rights.  In their five-to-four ruling in Kelo, et al. v. New London, the Supreme Court upheld a city’s use of its eminent domain powers to take land on behalf of a private developer. 
 
As every high school history student remembers, the colonists’ frustration with the appropriation of their private property helped lead to the American Revolution.  The colonists resented having their homes, barns, food and feed seized by British troops.  They believed that private property rights should be respected, and that private property should not be subject to random seizure by their government.
 
This belief was codified in the Fifth Amendment to the U.S. Constitution, which provides that “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.” 
 
At first, everyone agreed that the term “public use” meant things that were governmental in nature, such as streets, schools, and public parks.  Then, the term was interpreted to include things that would be used by the public, such as utilities and railroads.  Then, the term’s meaning was broadened to include other kinds of “public purposes”.  In recent decades, local governments started seizing private property in order to remedy “blight”.  “Urban renewal” was justified as a “public purpose”, even if the redevelopment was done by private companies.  But the use of eminent domain powers on behalf of private developers was still limited to properties that were run-down, covered with graffiti, or otherwise considered “blighted”.
 
The Supreme Court’s Kelo decision seems to have thrown even that limitation out the window.  In Kelo, the Court held that each state could decide for itself what constitutes a “public use” justifying an eminent domain taking.
 
In the particular case, the city of New London, CT used its eminent domain powers to seize private homes for the benefit of a private developer.  The developer had proposed a 90-acre complex of office buildings, “upscale” housing, a luxury hotel, a marina and other facilities; but some of the homeowners had refused to sell.  New London argued that, since the redevelopment would expand the city’s tax base, the project had a “public purpose” which justified the use of eminent domain.
 
The homeowners’ attorney, Scott Bullock, noted that “Every home, church or corner store would produce more tax revenue and jobs if it were a Costco, a shopping mall or a private office building.  But if that's the justification for the use of eminent domain, then any city can take property anywhere within its borders for any private use that might make more money than what is there now.”
 
The Supreme Court ruled that, under Connecticut state law, the City of New London could do exactly that.
 
What does the Kelo decision mean, here in Amesbury?
 
Ever since the early 1990s, the idea of creating a local economic development commission (often referred to as an EDIC) has periodically resurfaced.  The most recent proposal would have created an appointed board with the authority to seize private property by eminent domain.  The board would also have been able to issue general obligation bonds that the Town would have been responsible for repaying.  The measure was withdrawn, but if history is any guide, it or something like it will be reintroduced soon. 
 
Any future attempt to create an EDIC could take advantage of a state law, Chapter 40Q, that was quietly passed in 2003.   Chapter 40Q specifically authorizes the use of eminent domain to acquire properties for redevelopment by private entities; the law cites a “public purpose” of “encouraging increased residential, industrial and commercial activity in the commonwealth”.  The private project must be part of an approved “development plan”, and no more than 25% of a municipality’s total land area can be subject to “development plans” at the same time. 
 
After the Kelo case, it seems likely that the U.S. Supreme Court would defer to this authorization of the use of eminent domain powers to enable private development.  The only open question is whether the residents of Amesbury want that to happen here.
 
Attorney Bullock’s warning, that virtually every piece of private property has a “better and higher use”, is worth remembering. In the Kelo case, the homeowners had personal reasons for not wanting to sell.  One plaintiff had been born in her house – 87 years ago – and had lived there her entire life.  Another plaintiff had bought her house only recently, but refused to sell it because she loved its water views.  All of the homes were in good repair; they just happened to be located within the district that the developer proposed to build on.  Now they have been seized to allow a private company to build a more “upscale” development.  Is there any resident of Amesbury who cannot imagine a similar thing happening here?
                       
The Supreme Court has ruled that that federal Constitution allows the use of eminent domain to assist developers.  Our state law specifically authorizes it.  And our Town Charter is silent on the issue, which is why the Council could authorize an EDIC if the bill is reintroduced later this session.
 
But rather than creating an appointed board to wield eminent domain powers, to benefit private developers, perhaps the Town of Amesbury should move in the other direction.  Perhaps we should consider amending the Charter to restrict who can exercise eminent domain powers and the circumstances in which they can be used.
 
Back in 1795, the Supreme Court referred to eminent domain as “the despotic power”.  A lot has changed since then, but eminent domain still is a “despotic power” – one that should be used only in limited circumstances, and only by people who are answerable to the voters.  If the only way to protect our property rights is to change our Town Charter, perhaps we should consider that.
 
-Tom Iacobucci

 
Tom has held the following elected offices in the Town of Amesbury: 
 
• Town Meeting Representative from 1984 until 1996;
• Selectman, from 1994 until 1996;
• Member (and Vice Chair) of the second Charter Commission, 1995-96; and
• Councilor-at-Large, from 1996 until 2001.
 
Tom also, served as Chairman of the Town’s Bylaw’s Committee from 1986 until 1996; and in 1992, and performed the most-recent recodification of the Town’s Bylaws, which were then approved by the Attorney General’s Office and enacted by Town Meeting.