Eminent domain run amok

By Jason Adkins
JSOnline
Jun. 15, 2010

You may have thought that when Wisconsin joined 42 other states in passing eminent domain reform in the wake of the U.S. Supreme Court's outrageous 2005 Kelo vs. New London decision, eminent domain abuse would be a thing of the past.

It turns out that local bureaucrats are so confident in the flexibility of Wisconsin's new laws that they still will make arrangements to sell your property to a private developer without your permission. Just ask Earl Giefer.

Giefer, 94, has been farming his 25-acre Oak Creek property nearly his whole life. His family probably has owned the land since the Civil War - before Oak Creek was even a city.

None of that, however, prevented the city from contractually obligating itself to acquire Giefer's property and turn it over to WISPARK, a private developer, even though Giefer already had told city officials the land was not for sale.

Wisconsin no longer allows pure private-to-private transfers of land for the sole purpose of generating speculative economic benefits or increasing the tax base, so the city needed an excuse to take the land.

It, therefore, hired a consulting firm to conduct a study of the property and declare it "blighted" so it could take the property. But the property is not a nuisance and presents no health and safety risks to the public.

Thus, the city and its consultants ginned up the concept of "economic blight" and claimed that the property was "underutilized" and "impeded the sound growth" of the city.

As a result, Oak Creek was not only misapplying a blight designation normally used to redevelop urban slums; it also was attempting a type of taking that Wisconsin's citizens had overwhelmingly rejected just a few years ago.

Unfortunately, because Wisconsin's multiple definitions of "blight" are so open-ended and use subjective terminology, Oak Creek may have gotten away with this taking had not public outrage compelled the Common Council to back off earlier this month.

In 2006, in the wake of the Kelo decision, Wisconsin banned transfers of non-blighted property from one private party to another. It also forbade bogus blight determinations, such as what Giefer suffered, on all residential properties unless the property was abandoned.

This law was a significant step forward, but the Wisconsin Legislature should make a point of addressing the remaining problems as soon as possible. A top priority should be replacing the subjective terms in the state's blight definition with objective factors that can be conclusively demonstrated, so that property owners can take specific action to maintain their properties in such a way that they cannot be threatened with condemnation.

Furthermore, the Legislature needs to extend the same protections it has afforded residential property owners to all private property.

The good news is that citizens around Wisconsin do not need to wait until the Legislature acts. They can urge their local officials to end the practice of using public power for private gain by ensuring that the use of eminent domain complies with the constitutional requirement of "public use" - roads, schools, parks and other projects actually used by the public.

Oak Creek, for example, should guarantee that Giefer and his family can remain on their land for as long as they wish. It also should reject the spurious concept of "economic blight" as a commitment to abiding by Wisconsin's rejection of economic development takings.

Finally, the city should end the ability of its redevelopment agency to initiate condemnation proceedings.

The bottom line is that since Wisconsin's 2006 reforms rejected economic development takings, city redevelopment agencies have no business taking land.

The lesson from the Giefer case is that citizens still need to be vigilant in their fight against eminent domain abuse. No one's land is safe as long developers want cheap land, politicians want to tout their phony job creation skills and city planners need raw material to make their vision a reality.

Thankfully, people now realize that although it might be Earl Giefer's farm today, it could be their home, farm or small business tomorrow. Citizens have rejected speculative economic benefits allegedly resulting from eminent domain in favor of vigorous protections for property rights. Their elected officials should follow.

Jason Adkins is a staff attorney at the Institute for Justice, Minnesota Chapter. IJ argued on behalf of property owners in the Kelo vs. New London case at the U.S. Supreme Court. Jason Adkins is a staff attorney at the Institute for Justice, Minnesota Chapter. IJ argued on behalf of property owners in the Kelo vs. New London case at the U.S. Supreme Court.