Four In a Row!

May 1, 2002

May 2002

Four In a Row!

IJ Enjoys Four Victories Against Eminent Domain Abuse

By Scott Bullock

Over the past few years, the Institute for Justice has helped spark a fundamental shift in our nation’s law toward greater protection for private property rights. Now, even apologists for eminent domain abuse admit that after years of neglect, courts are once again carefully reviewing and, in many instances, stopping the ability of government to steal property from home and business owners for the benefit of a private party. It’s exciting to be on that cutting edge.

It is also enormously gratifying to share the good news of our successes and to celebrate with people who can now keep the homes they love so dearly. In March and April, IJ held two successive victory celebrations honoring our Mississippi and Connecticut clients and celebrated two other victories (in Illinois and Connecticut) in which we participated. Each case dramatically illustrates this trend away from the abuse of eminent domain.

IJ Clients Lonzo and Matilda Archie courageously fought the state of Mississippiís eminent domain action and won. They will now be able to keep what is rightfully theirs—their home and land.

Mississippi: The State Capitulates

In February 2001, the State of Mississippi initiated condemnation proceedings against the Archie family, who own 24 acres in Canton, Mississippi. The entire family lives on the land in more than 10 homes. The Archies have owned this land since 1941, and it was the first property the family ever owned. They love this land, and take great pride in its ownership and history. Yet despite the fact that the State of Mississippi admitted on the front page of The New York Times that it didn’t need the land for its development effort, it still sought to take that land from the Archies and give it to Nissan for a new truck plant being built in the area. We represented the Archie family in challenging the State’s eminent domain action. The case was pending before the Mississippi Supreme Court, which last year halted the condemnation proceedings, making sure that the property owners could stay in their homes while the case was decided.

After being stymied in court and under increasing public pressure, the State announced in April a stunning reversal of its position. Late on a Friday, after the Archie family rejected a settlement offer, the State declared that Nissan would redesign its manufacturing facility so that the Archie family can hold on to their land and homes. It also announced that the State was going to drop its eminent domain lawsuits against the family.

The Archies, a family of modest means, turned down a significant amount of money for their property and instead decided to keep their land. Why? Because, as they have explained since the beginning of this controversy, the battle for them was never about the money. It was about their desire to keep the homes and land that are such a part of their history and heritage. As Lonzo Archie explained: ?You can buy a house, but you cannot buy a home.? Moreover, as Lonzo told the Associated Press shortly after the State’s announcement, ?My father’s been ill, and when he got the news, that’s the first time I’ve seen a smile on his face in a while.? Mr. Archie, the patriarch of the family, who has lived on this land since he was 8, is in poor health from years of battling diabetes. I must admit that I shared a tear with Mr. Archie when I called to let him know about the State’s capitulation. This brave and principled man thanked the Institute for vindicating his and his family’s right to live out their days on their land.

But we could not have done anything if it wasn’t for the Archies’ willingness to stand up to their entire state government and one of the world’s largest automobile makers. And they won. They are modern-day folk heroes. Perhaps the next time a governmental body attempts to steal property for the benefit of a private company through the abuse of eminent domain, it will look at the successful fight of this family and recognize that constitutional rights must be respected, no matter how important a particular project might be to the politically powerful.

Victory in the Battle For Fort Trumbull

IJ scores another victory in New London, Connecticut, keeping the home of Susette Kelo and 10 other properties out of the hands of private developers.

As we described a couple of newsletters ago, last summer, we had a seven-day trial as part of the Institute’s lawsuit to save 15 homes in the historic Fort Trumbull neighborhood of New London, Connecticut. On March 13, 2002, our hard work and the determination of the homeowners paid off when New London Superior Court Judge Thomas J. Corradino dismissed 11 out of the 15 eminent domain actions filed against our clients. It was a tremendous victory for the people who have lived with the specter of eminent domain for over four years.

The judge based his ruling largely on the doctrine of necessity. And his ruling curtailed a practice that has characterized eminent domain abuse for decades: the government condemning property and bulldozing homes or businesses and then later figuring out what to do with the land. Of course, the end result often is that the land remains fallow and unproductive for years. The clear-cutting of urban areas has been one of the saddest legacies of urban renewal projects and eminent domain. In the New London case, the New London Development Corporation wanted to take the homes, bulldoze them and then market the land to developers. The court ruled that it was unconstitutional to take homes in the absence of some concrete plan, for there was no way for the court to determine if the takings were actually necessary. The judge dismissed 11 out of the 15 eminent domain actions outright and stayed the condemnations on the remaining four properties, ensuring that our clients will remain in their homes as the case goes up on appeal.

Smooth Sailing For Yacht Club

The New London decision followed on the heels of an eminent domain victory in the Connecticut Supreme Court. In February, the Court struck down the City of Bridgeport’s attempt to use eminent domain to take the Pequonnock Yacht Club—a venerable waterfront institution established in 1905—to hand the land over to private developers. Like New London, the City of Bridgeport wanted to condemn the yacht club and then try to market the land to a private developer for some unspecified future use. The Court held that it was unreasonable for the government to take the yacht club without considering if the club could be integrated into the plan. The Institute filed an amicus brief in the case on behalf of the Yacht Club.

The Connecticut Supreme Court has recently become quite concerned about eminent domain abuse in the state, and we believe its recent decisions bode well for the Fort Trumbull homeowners as their case makes its way up to the high court.

Open to members and non-members alike, the Pequonnock Yacht Club membership is comprised of 90 percent servicemen. The rest are local firefighters, police officers, lawyers, realtors and factory workers. None of them liked the idea that the government was trying to take their land and marina to give to a private developer.

Illinois High Court Races To Protect Property Rights

Finally, in a landmark ruling issued in early April, the Illinois Supreme Court stopped an attempt by the government to use eminent domain to take property from one private owner to increase the profits of his neighbor and the tax revenues generated from them. The Southwestern Illinois Development Authority (SWIDA) condemned land owned by National City Environmental to give the property to the Gateway racetrack next door for additional parking.

The project was a particularly offensive abuse of eminent domain. It started when SWIDA advertised that it would condemn land for “economic development.” On the form to be filled out, the applicant could check “public use” or “private use.” For “private use” condemnations, SWIDA charged a commission, amounting to about six percent of the land’s value. Gateway had attempted to purchase the land from National City, but National City did not want to sell. So Gateway asked SWIDA to take it through eminent domain instead. In court, Gateway admitted that it could build a parking structure on its own property but that the construction would have been more expensive than using the power of government and paying a $50,000 commission to SWIDA.

IJ Senior Attorney Dana Berliner worked closely with the attorneys for National City Environmental and filed an amicus brief with the Illinois Supreme Court. We also invited the very effective Illinois-based think tank, the Heartland Institute, to sign on to the brief. What makes this victory particularly gratifying is that last year the Illinois high court upheld the condemnation in a sharply divided 4-3 opinion, but granted a rehearing to the property owner, leading to the current 5-2 decision.

In analyzing the government’s arguments, the Court stated: “Using the power of the government for purely private purposes to allow Gateway to avoid the open real estate market and expand its facilities in a more cost-efficient manner, and thus maximizing corporate profits, is a misuse of the power entrusted by the public.”

All property owners in Illinois and indeed throughout the country should rejoice at this ruling. For years, the Illinois courts gave broad leeway to agencies like SWIDA to condemn property. But not anymore. SWIDA tried to take eminent domain beyond its outer limits, and the Court stopped it.

Encouragingly, the decision is already starting to have a positive effect. SWIDA planned to condemn a Moose lodge and hand the property over to Home Depot. The old Moose fellows don’t want to give up their place, and because of this decision, they may not have to after all. Perhaps most importantly, the well-reasoned opinion offers clear guidance to courts in other states that confront the abuse of eminent domain for economic development.

We are confident that with hard work the news will continue to be good on the eminent domain front, and that we will have more successes to report in the years ahead. We will not rest until eminent domain is restored to its proper limits under our Constitution.

Scott Bullock is an Institute for Justice senior attorney.

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