Supreme Court: Property seizures OK for development

StoryImage( ‘/Images/Story//Auto-img-112006415229638.jpg’, ”, ‘John Paul Stevens’);

Tougher government restrictions on use of eminent domain not on local horizon

Locals react to landmark decision concerning use of eminent domain power

The idea that a person’s home is his castle now depends on whether it has been targeted for further development by government officials, as “Gary,” a caller to WNTA-1330 AM talk radio, stated June 23, in reaction to a U.S. Supreme Court decision.

In the narrowest of margins, the Supreme Court ruled June 23 in a 5-4 vote that private property may be seized from owners by municipalities for the purposes of economic development or increasing its tax base. The decision broadens the definition of “public use” as described in the Fifth Amendment of the U.S. Constitution, which permits government agencies to seize private property for public uses by exercising its “eminent domain” powers.

Critics argued the decision undermines property owner rights to fight states, cities and villages from forcibly seizing property and selling it to wealthy and politically influential developers and construction interests under the guise of economic rejuvenation.

However, Chicago native Justice John Paul Stevens, writing for the majority in the 58-page decision, said: “Promoting economic development is a traditional and long-accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized.”

Specifically, Stevens defined and clarified the portion of the Fifth Amendment that reads: “nor shall private property be taken for public use, without just compensation.”

The 2000 case of Kelo v. City of New London, Conn., concerned that city’s condemnation of properties in an economically “distressed” neighborhood. City officials planned to replace residences with office space, a hotel and riverwalk along the Thames River.

In the high court’s ruling, such action is permissible because “the city is trying to coordinate a variety of commercial, residential and recreational land uses, with the hope they will form a whole greater than the sum of its parts,” Stevens wrote.

He added: “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose ‘public use’ requirements that are stricter than the federal baseline.”

In other words, state and local authorities may still adopt stricter conditions under which eminent domain powers may be exercised by a state or municipality.

Social commentator

In reaction to Stevens’ writing, Dr. Thomas Fleming—president of the Rockford Institute, and editor of the conservative publication Chronicles magazine and private property rights proponent—argued that Stevens was “extremely dishonest” to invoke states’ rights as a reason to uphold earlier court rulings. Fleming said long ago the federal government “castrated” states’ rights, because those rights are subject to federal approval.

On the Rockford Institute’s Web site, Fleming wrote: “The once free citizens of the United States are now to be subject of every government jurisdiction that can be bribed by a developer. …[I]f ever there had been a fundamental American right, it would be the security of private property against government predations.”

In his column, Fleming cited Justice Sandra Day O’Connor’s dissenting opinion to support his view.

O’Connor wrote for the minority Court vote: “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded. …The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

Although Fleming disagreed with the ruling, he was hopeful “the Supreme Court decision may encourage some states to tighten conditions under which eminent domain may be used.” However, tougher eminent domain standards do not appear on the horizon for Winnebago County residents.

County Board chairman

Asked whether he would support a resolution for stricter conditions under which Winnebago County would exercise its eminent domain power, Winnebago County Board Chairman Scott Christiansen said: “I think good judgement needs to prevail. But clearly, property rights have to be protected.”

Christiansen concluded June 24 he would have to learn more about the decision before issuing a more complete answer.

Speaking about the use of eminent domain by the county under his leadership since May 2004, Christiansen said: “By and large, we’ve used eminent domain under good judgement. …That’s a last-ditch approach. …I don’t see that as a problem here because we plan for rail, roads and sewers, and other more public applications. …I don’t see us expanding our authority.”

But Machesney Park officials already subscribed to the broad definition of “public use,” and expanding authority even before the Supreme Court issued its ruling. That philosophy was demonstrated in a 2003 incident, which was widely publicized.

Under duress

Machesney Park Village President Linda Vaughn said she supported the ruling.

“I think the Supreme Court put a lot of thought into it, and made the right decision, based on what I know,” Vaughn said.

In 2003, Vaughn and other Machesney Park officials threatened to wield the very power the Supreme Court validated. The incident in Machesney Park was similar to the City of New London, Conn., case.

Under the threat of an eminent domain action by Machesney Park officials, former business owner Dewey Henninger reluctantly sold his business to make way for a strip mall near the Illinois 251 and Illinois 173 intersection.

Henninger, a 73-year-old businessman at the time of the settlement, operated an excavating shop on his property.

Machesney Park Village Trustees voted 6-0 March 31, 2003, to postpone action that would have authorized the village to seize Henninger’s property to make way for retail development. Henninger’s 0.15 acres was the last property developer Sunil Puri of First Rockford Group needed to reconfigure the area into a strip mall.

The board voted to delay the decision to condemn the property while Henninger’s attorney, Bernard Healy, discussed a settlement with Puri. After Henninger settled with Puri that month, Henninger later relocated his business to a property less than one mile from the previous site.

He declined direct comment for this article.

Asked whether Henninger settled under an inordinate amount of pressure, Vaughn responded: “I’ve seen Dewey since then. And Dewey doesn’t hold a grudge against the Village in any way.”

As to Henninger and other Machesney Park landowners being forced to settle under similar circumstances, Vaughn said: “They were all treated with respect. And they all received a fair price, and then some.”

Specifically Vaughn asserted: “We always offer the appraisal value plus 20 percent. …We always try to respect the right of the individual.”

In reaction to the Supreme Court’s ruling, Henninger’s wife, Barbara, asked: “Why is it right for the government to take away one business and replace it with another? It just doesn’t seem right.”

Puri responds

Even Puri, a prominent regional developer and political heavyweight, agreed with Barbara Henninger’s assessment.

Puri reacted to the Supreme Court decision and the use of eminent domain by commenting: “I believe certainly it should be used for public transportation, and projects for the public good. But purely for a developer to take over a tract of land? I don’t even know how a developer can morally justify that.”

In addition to property near the Illinois 251 and 173 intersection, Puri’s company bought land several miles to the east of Henninger’s property in anticipation of new state and county road construction.

Specifically, First Rockford bought several properties in Machesney Park along the county’s northward extension of Perryville Road. They also bought property near the proposed I-90 interc

hange at Illinois 173.

Henninger’s former property existed within a Tax Increment Financing (TIF) District Machesney Park officials created several years ago. The district was created because officials viewed the area as blighted, and in need of development, rather than an area that would have been a logical target for developers like Puri.

Asked whether Machesney Park officials ever succumbed to pressure exerted by any developer or construction interest, Vaughn said: “We’ve never created a TIF district for a developer. When a developer approaches a private landowner, the Village stays out of it.”

Since 2000, Vaughn’s campaign has received 45 contributions totaling $22,782, of which $5,650 was from known development, construction, real estate and union interests in 12 transactions. However, Puri and First Rockford were not among Vaughn’s contributors.

Vaughn was elected village president in 2001.

‘Quick take’

Although the Fifth Amendment mandates that private property cannot be taken for public use “without just compensation,” that concept took a controversial turn in Illinois in 2000 when “quick take” legislation was used for road construction.

Quick take is another form of eminent domain that allows government agencies to legally seize private property before agreeing on compensation with the landowner.

The provision was used in 2000 to seize the property of Tom and Jan Ditzler to pave way for the Springfield Avenue extension on Rockford’s far west side. The road cut a path over an artesian well and near a site of Native American artifacts.

Since that section of the road was completed in November 2000, the road has sunk and needed repairs three times. The latest repair work was completed earlier this month.

In response to the Supreme Court’s decision, Tom Ditzler said: “It’s scary . I couldn’t believe it when I heard it. …If it affects one person, it affects everyone. …I was talking with my wife about if we moved, what county would we move to? Now, I’m wondering what country.”

To view the U.S. Supreme Court’s 58-page decision concerning Kelo v. City of New London, visit:

From the June 29-July 5, 2005, issue

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