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July 29, 2006
Legislature Paves Way for Questionable Property Seizures
by John Andrews, MCHC

In their zeal to do favors for well-connected developers, the Massachusetts Legislature has made several attempts to put the powers of eminent domain into the service of private land developers. MCHC has previously reported on the concerns raised by Chapter 40Q powers (See “Privatization of Eminent Domain and Privatization of Taxes” http://www.masschc.org/story.php?id=187 . And the recently passed “expedited permitting” bill allows eminent domain to be initiated by a developer-controlled special committee.

Eminent domain has traditionally been exercised to achieve a necessary public purpose. For example, suppose a community needs to build a new bridge, and there is only one feasible river crossing point. If the private party owning the land at that point either refuses to sell or demands an exorbitant price, then the entire project could become impossible. To prevent injury to the public, the needed land can be taken by eminent domain with the landowner receiving a fair market-rate price for the property. The key point is that the homeowner must be fairly compensated and that the action is taken only because of a pressing public need.

Flash forward to the current spate of laws. The landowner is in the way of a private developer who can make money by taking his property. The new laws assert that economic development is itself a public purpose that justifies land taking, even if the land taken will be devoted to no public use. In other words, it is the right of government to take land from one landowner and give it to a private citizen for the sole purpose of assisting in the private business of the second person. If a developer is politically-connected, he can persuade government to use the power of eminent domain against other landowners.

One challenge to the expansion of eminent domain went all the way to the United States Supreme Court. In a 2005 ruling (Kilo vs. New London), the Supreme Court ruled that the eminent domain clause of the 5th Amendment of the US Constitution could be expanded to include takings for economic development purposes. Big development interests were quick to take advantage of this ruling by seeking more powers under state laws.

The new eminent domain laws have has drawn protests from diverse parts of the political spectrum. Progressive-minded groups see it as an example of private wealth running roughshod over rights of the less wealthy. Property-rights advocates see it as an infringement on the rights of the property owner whose land is taken.

At least one community in Massachusetts has adopted a by-law intended to prevent the abuse of eminent domain (see the box for the bylaw adopted by Scituate in May 2006). A town-by-town defense through by-laws may be only a spotty relief, but it could be the only option open at the current time. The long-term outcome remains in doubt if the state legislature continues to stack the laws in favor of developers. There is talk on Beacon Hill of denying state aid to towns that do not adopt developer-friendly bylaws. Communities could ultimately be blackmailed into going along with laws that erode their rights.

Chapter 40Q was passed with almost no awareness of its implications among the affected communities. The Chapter 40T eminent domain provisions were inserted into the “expedited permitting” bill at the last minute, without public hearings, and too late for affected people to weigh in with their legislators. Great vigilance will be required to prevent eminent domain from being expanded through such skullduggery.


Text of Scituate Bylaw Limiting Eminent Domain to Traditional Purposes

SECTION 32040 THE PRIVATE PROPERTY PROTECTION ACT OF 2006

The authority of the Town of Scituate and its agencies of local government, as reserved to localities under Chapter 79 of the Massachusetts General Law, to seize privately owned parcels against the expressed will of the owner through the use of eminent domain procedures, shall, in light of Kilo vs. New London, be specifically further limited as follows:

1a.) To only those proposed taking actions incorporating the transfer of private parcel(s) to the Town of Scituate or any of its authorized agencies of local government and under no circumstances to another private party, and;

2a.) To only those proposed taking actions whose purpose is the creation of a facility for actual public use and ownership to include public open spaces, parks, and watershed protection districts and never for the purposes of economic development or the enhancement of the local tax base.

Nothing in the bylaw shall limit the authority of the Town of Scituate or its authorized agencies of local government to seize property that is endangering the health and safety of its residents or which could otherwise be seized or foreclosed upon for tax delinquency in accordance with the provisions of Chapter 60 of the Massachusetts General Laws.

  

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