Viewpoint: Eminent domain stirring many court battles

Last year, something happened in the small DeKalb County town of Sycamore that is virtually unheard of in Winnebago County. Residents approved a non-binding referendum that called on the city council and the mayor to deny approval for any more subdivisions until the ones already planned were built out.

That proposal passed 1,879 to 778. The outcome sent a message loud and clear to city officials—slow down the pace of growth.

The result was because of the effort of a citizens’ group newly formed last year, called Citizen Action for Reasonable Expansion (CARE). They collected enough signatures to get the proposition on the ballot in the 2004 primary election.

Under the citizens’ plan, the only exceptions to the subdivision ban would be housing for the elderly, low-income and handicapped. Before the primary came around, the citizens’ group held meetings with city officials and anybody who would listen. They outlined their concerns about what more subdivisions might do to their town, like spoiling farmland, overcrowding schools, taxing public services and crowding roads.

Mayor John Swedberg at first didn’t like the idea, claiming the referendum was a “feel-good” bit of legislation because the wording made it hard for voters to say no. The vote is not legislation, but only an advisory expression of public desire.

Nonetheless, Swedberg thinks it was a strong message to the city council. “I’m not sure what the council will do with this,” Swedberg said, “but it will affirm what I’ve been telling them and the city for a while now—that we need to move toward smart growth.”

CARE member Joyce Smith was happy with the vote, but remained skeptical of what the city’s officials may do. “Now we will see how the city council and government act and if they start listening to the people,” she said (

Sycamore is not the only place that wants something done to control unabated growth and sprawl. Land use is a heated debate across the country as more and more local governments bow to developers and pursue visions of a broadened tax base.

In Oregon state, more than 65 percent of the residents surveyed said growth management is what makes Oregon a highly desirable place to live. Those polled favored guarding property rights above protecting farmland, environment or wildlife habitat.

But views of land use are not all alike. In the Oregon poll, 32 percent of the respondents said land use rules are “too strict,” while 32 percent said they were “about right,” and 21 percent thought them not strict enough.

Tom Eiland, of the firm that conducted the survey, said: “What people would like is some balance between protection of property rights and some type of planning for growth. Where that fulcrum in the balance is, that’s the $64,000 question” (

Back in Illinois, the city of Elgin, eyeing a population forecast of 162,000 people in 25 years, is pushing far into rural Kane County and drawing fire from residents and officials of that county, who see Elgin’s move as detrimental to their efforts to preserve open space and the semi-rural quality of life of that area.

An investors’ group wants to put 600 acres into residential use and 200 acres into commercial development. A spokesman for the project said: “We don’t see how a subdivision of $500,000 homes can be bad for a school district.” Nonetheless, the Kane County Board and officials of Campton Township have urged Elgin to refuse the project. Kane County residents are girding for a battle (

More often than not today, eminent domain is the key that opens the development door. In the small town of Port Chester, N.Y., Bill Brody bought four old buildings on the main thoroughfare and renovated them; he rented them successfully and believed he was sitting pretty.

Then he was advised by the village that it was invoking eminent domain and taking his property to give to a private developer for the construction of a convenience store and a parking lot.

A recent report by the Institute for Justice, an advocacy law firm in Washington, D.C., states that in the past five years local governments have taken or threatened to take more than 10,000 homes and small businesses to give to private developers for new construction.

In Atlantic City, an entire middle-class black neighborhood was demolished to make way for a tunnel to a casino. In Bremerton, Wash., a woman in her 80s was ejected from her home of 55 years, presumably to expand a sewer plant, but the property was given to an auto dealer; and in West Palm Beach, Fla., a family’s home was condemned so the manager of a planned new golf course could live in it.

Property owners are making some headway, however. In 40 percent of the cases challenging eminent domain that came before the courts between 1998 and 2002, the courts sided with the property owners (

There may be an even stronger glimmer of hope for property owners. Last February, the U.S. Supreme Court heard arguments in a case that will decide whether eminent domain actions have gone overboard. The case originated in New London, Conn., where the city wanted to take the homes of a group of residents for a developer to build a riverfront hotel, health club and offices (

If the high court sides with the city of New London, property rights will mean little. Your home and mine could be the next targets of some developer coupling with government.

From the April 27-May 3, 2005, issue

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