As we heard earlier today, as Dr. Lehr said, property rights
are fundamental to the American system. And they are really the
foundation of all freedom. Yet people tend to treat them in a
way that reflects their thinking that property rights are sort
of dry and not as important as what are perceived as personal
rights, like the right to be free of discrimination or the right
to speak freely. But property rights are civil rights just as
much as those things are civil rights. There is nothing that touches
people more personally than their home and their business, and
that’s what property rights are all about. They tend to get
talked about in this very large corporate way, but I think what
all of you know is they are really personal. It’s a question
for some people whether they can build or whether they cannot
build, whether they can keep people off of their land, whether
they can continue to live in their home, and these are very personal
rights and that is something I think that needs to be recognized.
Today I am going to talk, not surprisingly, about eminent domain,
which is one of my major areas of litigation at the Institute
for Justice. Eminent domain is the power of government to take
land. It is something that has existed at least since Roman times,
and it is considered a pre-constitutional power, but the U.S.
Constitution and the constitutions of every state placed two limits
on the use of the power. Those two limits are that property can
only be taken for public use and property can only be taken with
just compensation. Those are the two constitutional limits. A
lot of the issues, I know, that you have been talking about today
are questions of whether something is a “taking” or
not and whether there should be compensation for it. I am going
to take about public use, which is the aspect of this that
I know the most about.
Eminent domain has always been called the “despotic power”
because it is the power of the despot. It is the power to throw
you out on your ear. For that reason it was intended to be very
much limited. Now, over time the constitutional protection of
public use has eroded, just like a lot of other constitutional
protections have eroded as government has grown and gained more
and more power over our lives.
We have been getting calls about the issue of eminent domain since
1996, and I honestly think we are up to about 200 a year on the
issue of eminent domain. It is so many that we decided that we
better try to quantify it in some way because there is no data
at all about how often eminent domain is used generally and no
data certainly about how often it is used for the benefit of private
parties. So there wasn’t an official way to count it. We
just counted from newspaper articles and from published decisions
and from court papers that people happened to send in. Basically,
everything that we knew about we counted. What we found was that
within a five-year period, 1998 through 2002, there were almost
4,000 condemnations filed against properties for the benefit of
private parties and another more than 6,000 threatened —
I didn’t know if they were filed or not —,coming out
to more than 10,000 properties either condemned or threatened
with condemnation for private parties in five years. And that
is working from published news articles that I could find on Lexus
and doesn’t take into account most small papers, which means
it is really the tip of the iceberg. For the one state that did
count re-development condemnations, which are generally for private
parties, I was under by a factor of 17. So it could be much, much
more.
Let’s consider New York. Well, let me first say that I think
this has happened primarily through courts shirking their responsibility
to protect rights and enforce the constitutional limitation on
public use. That is something that has got to change and that
we’re working very hard to change. It is beginning in some
parts of the country. But I am here in New York; so I am going
to tell you a little bit about New York. Unfortunately for all
of you, New York is the worst state in the entire country for
abusing the power of eminent domain. And it is the worst in a
number of different ways. It has some of the most condemnations
for private parties. It came out to about, that I got from news
articles, about 146 threatened or were actually condemned. I found
14 projects in, again just in the news, so I am sure there are
lots of others that I don’t know about. The courts in New
York are utterly deferential about eminent domain. They will sanction
anything, and I think you have been hearing today in the legal
session about other situations where the New York courts just
do not care when people’s rights are blatantly violated.
Eminent domain is also one of those. Now, I do think that the
changes that are happening judicially will come to New York, but
they are not coming soon unless something radical changes.
New York has some of the most spectacular failures of eminent
domain projects. Two that I know about are in New York City. The
New York Stock Exchange wanted to build and the court said, hey,
no problem. Take those people’s businesses. Take those apartment
buildings. We don’t care. Good idea. The New York Stock Exchange
is important. We can’t let them move to New Jersey. Well,
the New York Stock Exchange didn’t move. So all of the people
in the apartment buildings left, the businesses closed, and then
there was no building. So then they had to start facing this.
It was just a mess, with huge payments by New York, by the Empire
State Development Corporation and the City to try to make it up
to the owners and compensate them. It is a disaster.
There was another one on Friday, as you, I am sure, have heard
about. The Empire State Development Corporation, again, was condemning
a whole bunch of businesses for a new New York Times headquarters,
and those people who owned the businesses fought. They lost. The
Court of Appeals, New York’s highest court, refused to hear
it. The U.S. Supreme Court refused to hear it. So they closed
up shop, the businesses ended, and on Friday they announced they
don’t have funding for the project. So they are not going
to build it until they find some funding, which could be never
or it could be another ten years. So that, too, is another example.
I know of one, as well, which I just found out what happened,
in North Hempstead where the church, some church property was
condemned supposedly for private business development. There is
nothing there, and that was five years ago. So New York has spectacular
failures, very, I think, high failure rate on its condemnations
for private parties.
It has also got the worst eminent domain process in the country
in terms of telling the people what is going on. New York’s
process is completely Byzantine-like you would think, if you get
sued, then you can defend yourself. Not in New York. If you get
condemned, it is too late to defend yourself. You had to do it
anywhere from a month to ten years earlier, because there is a
30-day window where you can challenge the public use of condemning
your property and they don’t tell you when it is. They don’t
send you a notice about it. The only thing that you can do to
find out, at this point, is if you hear about the public hearing,
go and afterwards check the legal notices section every day for
the next three months, and you will find out when your 30-day
window is, although it won’t say 30-day window. It will tell
you there has been a determination and findings and that is when
your 30-day window starts. It is the craziest system I have ever
seen and I have seen some really bad ones. This is something,
actually, that we have a constitutional challenge to and the case
had been itself mired in a lot of procedural difficulties for
about the last two years. Two weeks ago, the Second Circuit revived
it; so now I think I am finally going to get a decision on whether
that system is constitutional, and it clearly isn’t. So hopefully
you will get something changed about that.
There had been a proposal this year in the New York legislature
to change it and at least tell people about the 30-day window.
It passed unanimously in the Assembly and the Senate, and Pataki
vetoed it. He said it was too expensive to let people know about
their rights by having to mail them, and find out who they were
to mail them. Perhaps that will change another year.
Is there any hope on the horizon for New York? On the distant
horizon in terms of the courts…I don’t think that you
can count on them at this point, certainly not on the state courts.
But the judicial tide is turning in other parts of the country.
There is starting to be a lot more decisions striking down condemnation
where the beneficiary is a private party.
The main thing that is really changing around the country is the
degree of activism against eminent domain abuse. The thing that
you are hearing so much about today is the importance of activism.
That is so true. Because we were hearing about so many cases,
we actually formed a group just for the purpose of providing information
and support to activists against eminent domain abuse. It is called
the Castle Coalition. It is at castlecoalition.org as in “Your
home is your castle.” There is information on the web site
about practically how to go about fighting as well as questions
to ask your lawyer, things to find out from your government, how
to do FOIA’s. It is meant to be a how-to for people who are
fighting against eminent domain abuse. I brought some brochures,
which I left over on the brochure table if you want to pick them
up, or go to the web site.
The message throughout is that the second that you hear that
something might be going on, you have got to get in gear, because
the main way these days that these projects are getting defeated
is through activism. Frankly, that is something that surprised
me. Being a lawyer, I hadn’t really thought about that possibility.
It was after we saw three different communities successfully fight
off projects that had been done deals, completely locked up, and
yet they were killed, that we began to realize that activism was
something that truly could change the world on this.
There was a situation in Baltimore County where there was a deal
for a private development and they were getting rid of businesses,
they were getting rid of homes, and the legislature, I think,
except for two people, voted for it and the Baltimore Sun
was in favor of it. Everybody who was anybody was in favor of
that, and they got it on the ballot and it was overwhelmingly
defeated.
Basically, everybody in power loves eminent domain. It doesn’t
matter if they are Republican or Democrat. Once they are in power
they like it, they want to be able to use it to give benefits
to their friends. And everybody who is not in power does not like
it! Any ordinary person with just a home or a business, and not
connected enough to really be somebody, can’t stand the use
of eminent domain for private parties. So when you are able to
tap into that, you can get a lot of public opposition. Most people
don’t know about it. Most people think government will only
take property for a road, a bridge, public school, but they won’t
do it for a shopping mall. They won’t do it for a private
office building. And that is just not true. They will. They will
try, and the only way often, and certainly in New York I think
pretty much the only way, to stop it is by fighting in the public
sphere.
One of the examples that I was particularly impressed with was
actually in New Rochelle. There was a community that was getting
condemned for an Ikea, and the community was not particularly
wealthy. It was actually sort of an odd mix of small industrial
uses and homes, and, nonetheless, everybody knew each other, everybody
was friends. They would help each other, borrow each other’s
stuff, just very close knit, and there were people who had lived
there for 50 years and businesses that had been there for 50 years.
It was a perfect location right on the highway. Ikea thought it
would be great. The city thought they would like the tax dollars
from Ikea a lot more than they would like the tax dollars from
these working class homeowners, and they cut a deal. Ikea bought
up from people who were willing to sell, bought up more than half
of the property, and it seemed like it was unstoppable.
But these people organized like you would not believe. They
did it really noisily and creatively, and that is part of the
trick. You have got to be really loud about your objections, not
in volume but in terms of visibility. I realize that is a mixed
metaphor, loud in terms of visibility, but flashy in terms of
visibility. They enlisted unlikely supporters. They got the neighboring
towns to help them out. They found some random professors at different
universities to help, and they did really colorful demonstrations.
They organized a demonstration where everyone they knew would
drive around the town showing what the increase in traffic was
going to be. They picketed the Swedish consulate. They did all
of these just really creative and newsworthy kinds of demonstrations
against it, and-Ikea gave up. They just couldn’t take it
anymore. It was on Swedish television constantly. There was several
specials about it. Some people said they, of course, just couldn’t
understand anything, but it was fascinating that it had become
such a news story and such a high-pressure issue for Ikea, and
they backed off. They are having to sell the land. The project
is over, and they didn’t even stop then; but they made sure
before they moved on to the rest of their lives that they got
the redevelopment designation removed from their property, because
as long as it is there, you are in danger, but once you get rid
of it you’re in better shape. So they were incredibly effective,
and that is what you need to do.
If you do hear that something is starting, that is the time right
them immediately to organize and really pull out all the stops.
Contact the press, do everything you can think of, go to the public
hearings, bring your whole family to the public hearings, tell
them sob stories, submit additional information, and read all
of the documents. This is really horrible because even I hate
reading them. Read all of the stuff that they give you and write
objections to it. It really does require a lot of work, but it
is possible to win. I think just in the last couple weeks we heard
about there was one in Missouri where they beat one off, there
was one in Minnesota. It really can be done, and that is definitely
the way to go, particularly in New York, I hate to say.
In the longer term, I think there is some potential for changing
this politically. The New York legislature is probably not going
to be the place to start. Pataki was going to veto a bill that
just told you about your rights. He is certainly not going to
approve a bill that actually gives you some rights. But there
is political potential at the local level. Some cities have actually
forgone the power of eminent domain or taken the power of eminent
domain away from redevelopment agencies, and that is something
that you can work on in your own town if you are not in the middle
of one of these acute battles. But especially if you win one,
right when it is over is the perfect time to get rid of the power,
because then everyone is exhausted and they have just been through
this sort of big dramatic thing. So that can be a good time to
do it.
You really just need to also educate people about it, because, as I said, most people don’t know this can happen, and most people really are disturbed when they find out it can happen. The forces in favor of eminent domain are very strong on the part of the government. It is financial, both that they like to give favors to their friends, and they think it will give them more tax dollars. For private businesses, those with no scruples in particular, it is the ultimate weapon. If you are trying to do real estate deals and you can just make the other person comply completely with everything you want, then it is a desirable tool. So there are strong forces in favor of it, and that’s why it keeps happening. However, there are starting to be forces against it, in some places in the courts, and really everywhere just among ordinary people with a home, a business, who oppose it.
Certainly I believe taking property rights is unconstitutional and it is wrong. It’s got to stop. Some day the courts are going to agree with me, even the New York courts, that it is unconstitutional, but until that time it is your job to make everybody around you recognize that this is going on. Write about it. Tell people about it. When you find out about it, really make a fuss, — and really inform and educate people about just how wrong it is and stop it whenever you can, and together I think we can change this. I think we can change the world. Thank you.
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