Nationwide Trend: Judicial & Grassroots Movement Curbing Eminent Domain Abuse

John Kramer
John Kramer · October 2, 2003

Phoenix, Ariz.—After years of nonstop anxiety about whether the city would succeed in seizing his property and handing it over (along with a $2 million taxpayer subsidy) to a private developer, Arizona brake shop owner Randy Bailey has had a very good week. On Sunday, September 28, Bailey’s plight was highlighted in a 60 Minutes segment spotlighting eminent domain abuse. Yesterday (Wednesday, October 1), the Arizona Court of Appeals unanimously struck down the City of Mesa’s use of eminent domain.

Bailey’s victory is one of a series of events over the past week that demonstrates a growing judicial and grassroots movement against the abuse of eminent domain—where the government takes one person’s private property only to hand that land over to another private party for private use.

The Arizona court held that the proposed taking violated the state’s constitution. “The constitutional requirement of ‘public use’ is only satisfied when the public benefits and characteristics of the intended use substantially predominate over the private nature of that use,” wrote Judge John C. Gemmill. Transferring private property to a developer to build a hardware store and other businesses did not satisfy that standard.

“The dogs have been called off,” declared Clint Bolick, vice president of the Institute for Justice and lead attorney on the Bailey case. “Randy can now hang onto the business that is rightfully his.”

On Wednesday of last week, the 2nd U.S. Circuit Court of Appeals issued a decision that removes procedural barriers from a New York entrepreneur’s challenge to that state’s eminent domain law, which allows local governments to take private property without even notifying the owner until it is too late to object. That suit was championed by the Washington, D.C.-based Institute for Justice on behalf of small businessman Bill Brody, who is fighting to save his property from the Village of Port Chester, which seeks to give his well-maintained property to a private developer who would then turn it into a Stop & Shop parking lot.

On Tuesday, September 23, the Institute for Justice filed suit on behalf of homeowners and small businesses in Norwood, Ohio, challenging that City’s effort to take their homes so it may give the land to the Cincinnati-based developer Jeffrey R. Anderson Real Estate. Anderson seeks to bulldoze the properties so he can expand his nearby Rookwood Commons and build “Rookwood Exchange,” a complex of private office buildings, condominiums and chain stores to replace the homes and locally owned businesses.

Meanwhile, in Lakewood, Ohio, the Institute for Justice is fighting against that city’s mayor and its city council, which declared homes and small businesses in an attractive, well-kept neighborhood “blighted,” with the hopes of handing the land on which they stood to Jeffrey R. Anderson Real Estate—the same private developer of the Norwood, Ohio, project. On what grounds did Lakewood officials declare these homes blighted? The homes do not have two-car garages, at least two full bathrooms and their yards are considered too small. Using these same criteria, the mayor’s own home would also be considered “blighted.” The citizens of Lakewood have gathered enough signatures to challenge the designation as well as to place two other anti-eminent domain abuse initiatives on the November 4 ballot. The litigation and grassroots activism in Lakewood were featured along with Randy Bailey on 60 Minutes.

In another suit litigated by the Institute for Justice, homeowners in New London, Conn., await the decision of the Connecticut Supreme Court in a lawsuit that will determine whether a private development agency may take their homes, raze them, then hand over the land to a private developer for its use. When some of those properties were taken, the developer had no specific plan for them, leading some to ask, “How can the government argue it is taking these properties for a public use, when it doesn’t know what it wants to do with the land?”

“Eminent domain abuse has become corporate welfare in the guise of economic development,” said Dana Berliner, a senior attorney with the Institute, lead attorney in the Lakewood case and author of the first-ever national report tracking eminent domain abuse nationwide. The report, Public Power, Private Gain, which documented more than 10,000 examples of filed or threatened condemnations for private parties, was published earlier this year by the Institute and is available online at

“These recent decisions demonstrate that the tide is turning against eminent domain abuse,” said Scott Bullock, IJ senior attorney and lead attorney in the Norwood case. “The unholy alliance between business and government to take the property of homeowners and small businesses must be challenged and stopped throughout the country. Development can happen—but it must be through private negotiation, not by government force.”

Bolick, IJ’s vice president, called upon the City of Mesa to end the lawsuit against Bailey. Bolick said, “The City has wasted many thousands of dollars in a futile effort to expropriate Randy Bailey’s property. They should cut their losses and leave Randy alone, once and for all.”

The Institute for Justice is the nation’s leading legal advocate against the abuse of eminent domain. IJ has already scored victories against the abuse of eminent domain in court and in the court of public opinion in Atlantic City, N.J.; Canton, Miss.; Pittsburgh, Penn.; and Baltimore, Md.