Sunday, April 18, 2004

Changing standards shape field of eminent domain

By Ray Cooklis
The Cincinnati Enquirer

Governments' use of "eminent domain" has become increasingly controversial in recent years, in part because the standards have changed on when and how it should apply.

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Much of the controversy centers on how courts have defined the concept of "public use," which state and federal constitutions make the criterion for allowing the "taking" of private land.

"In the past, 'public use' was defined much more narrowly," explained David B. Snyder, a prominent Philadelphia attorney who specializes in eminent domain cases. "Courts previously looked at it as use 'by' the public (such as a highway or school building). Today, it's more 'for' the public. Courts use terms such as 'public advantage' or 'public benefit' instead."

Looser interpretations have allowed governments to take property for the purpose of selling it to private developers, under the rationale that the public good - and tax coffers - will be better served by the new development. But they can't act arbitrarily.

"The legislature (or city council) has to have some finding that there is 'blight.' They need to produce sufficient evidence," Snyder said. "When the court reviews the evidence, it only needs to find that the legislature was not acting arbitrarily, commiting fraud or abusing its discretion.

That's why property owners often have little success challenging eminent domain. "Obviously, the problem for landowners is having the resources to come up with experts and land use studies," he said.

The equation may be changing, however. "We're starting to see a backlash from citizens, and they're much more active in opposition to these projects," Snyder said. "Also, there's a question if legislatures and the courts will start the pendulum swinging the other way" toward stricter interpretation of "public use."

Snyder's firm, Fox Rothschild, represents clients on both sides of the eminent domain debate - property owners and, to a lesser extent, development authorities.

In our region, the noted firm served as consulting attorneys for the redevelopment authorities behind the Louisville airport's expansion in the early 1990s.

So he's familiar with the other changeable aspect of the eminent domain process - determining "just compensation" for the private property taken.

"The actual legal standards haven't changed, but lawyers - like me - have become more sophisticated in determining the value," Snyder said. "There's no objective number. Often, it's a battle of experts and appraisers, ultimately decided by a jury.

"Or you can resolve cases before trial by combining the 'public use' and 'just compensation' segements. Often times, property owners won't fight in exchange for getting paid earlier and more."

Lawyers in Snyder's specialty also help property owners prepare for future projects that may affect their properties - for example, highway expansions such as the proposed widening of I-75.

"It's hard to develop strategies to stop eminent domain, because obviously it's a public use. So owners should try to get involved in the engineering process early on to lessen the harm," Snyder said.

"These projects don't happen overnight. If you see one coming, there are ways to position your property so you get the maximum compensation."

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