Imminent change

Courts | Congress may stop local land grabs, but not soon enough

Issue: "Rita: Strike 2," Oct. 1, 2005

Bernard Buller just wants to be left alone. For nearly a decade, city officials in Monrovia, Calif., have hassled, pressured, and insulted the 67-year-old commercial property owner in an effort to buy a piece of land not for sale. Such strong-arm tactics might border on criminal were they administered via private means. But the Supreme Court's eminent-domain decision last June places the city's latest land grab on firm legal ground-and will likely soon place Mr. Buller's property in city officials' hands.

Three months after the Supreme Court's much-maligned ruling in Kelo v. City of New London, similar battles are springing up across the nation. The 5-4 decision allows cities to appropriate private lands and transfer them to private developers if government officials believe some public benefit may result.

Susette Kelo, one of 15 homeowners displaced in New London, Conn., spoke of her plight before a sympathetic Senate Judiciary Committee Sept. 20. Both Republican and Democratic panel members expressed commitment to rein in the high court's broadened eminent-domain application. But such promised future solutions offer no interim remedy.

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The Institute for Justice, a Washington-based nonprofit law firm, is tracking the effects of the Kelo decision, compiling an extensive list of displaced landowners. Though eminent-domain cases existed prior to Kelo, institute vice president John Kramer says, "the floodgates have now been opened." Mr. Kramer told WORLD developers are rushing to close deals before state legislatures pass laws to block them.

In Mr. Buller's case, Monrovia officials own the adjacent property and must secure his corner lot to attract upscale developers. "Now that they've got Kelo, all they have to say is, 'public purpose,'" said Mr. Buller, who rents his land to two small businesses and uses some of the space for personal hobbying. "The judge will find for them. I will lose the right of possession."

Monrovia has yet to offer fair compensation for Mr. Buller's three-parcel lot, most recently setting the price at $700,000, despite comparables in the area placing its value closer to $1 million. What's more, the city has sought to stick Mr. Buller with the bill to dig up fuel tanks from an old gas station that operated prior to his purchase of the land in 1981. "You're going to steal my car and you want me to wash it first?" Mr. Buller asks.

Meanwhile, others have fought back and won. A recent trial court ruling in Tempe, Ariz., struck down an effort to displace roughly a dozen property owners with a $200 million shopping center. Judge Kenneth Fields ruled that the impetus for seizure was private profit, not the public interest.

Despite what many city officials and developers believe, the Kelo decision does not bind states to comply with city-run, private-to-private forced land transfers. In the Supreme Court opinion, Justice John Paul Stevens wrote that "nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power." Such language provides hope that enough local and state victories could effectively render Kelo moot.

The Institute for Justice has outlined the battle strategy, placing heavy emphasis on state legislation. More than 30 states will propose bills to stem eminent-domain application in the coming session.

In the meantime, Mr. Kramer advises any individual or business threatened with losing property "to fight every step of the way." A resource termed the "survival guide" at castlecoalition.org offers helpful tips and information to those entrenched in eminent-domain scuffles. Success stories from across the nation suggest such struggles are both winnable and popularly supported. "There's a tremendous amount of very focused public outrage that is working at the legislative level and through the courts to try to save property rights," Mr. Kramer said.

For victims like Mr. Buller, however, that backlash offers little comfort. "I have nowhere to go," he told WORLD. "There is no private property anymore."


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