In Ohio, A Test For Eminent Domain
Rights vs. Renewal at Stake in Case

By Blaine Harden
Washington Post Staff Writer
Sunday, June 22, 2003; Page A03

LAKEWOOD, Ohio -- The mayor of this aging Cleveland suburb knows that her plan looks heartless.

Still, Mayor Madeline A. Cain wants to demolish the handsome house where Jim and Joann Saleet have lived for 38 years, where they reared four children and where, on fine summer evenings, they sit on the porch and listen to their beloved Indians play baseball. The house, said Joann Saleet, 72, has "all our memories in it."

The mayor and the city council want the house razed, along with about 50 other houses and four apartment buildings, to make way for a $151 million shopping, movie and townhouse complex. If they get their way, a Wild Oats organic market will rise on the Saleet's bulldozed memories, and pay taxes that Lakewood desperately needs.

"No one wants to see people lose their homes, but this is absolutely necessary for our future," Cain said.

Echoing the views of many national experts on urban development, Cain said suburbs such as Lakewood can either break a few hearts by using the power of eminent domain or they can go the dismal way of Cleveland, the overtaxed, depopulated city next door.

Lakewood's scheme to deepen its future tax base, however, is up against more than just the heart-rending tale of Jim and Joann Saleet and their little house. This suburb of 58,000 people is locking legal horns with a Washington-based libertarian think tank that is leading a nationwide crusade against eminent domain.

The Institute for Justice, fortified with $6 million to pursue the case, has jumped on the Lakewood development plan as a test case to challenge what the institute describes as a growing national outrage: Towns using eminent domain to take private property from middle-class homeowners and businesses to turn it over to rich private developers.

"Everybody's home would produce more tax revenue as an office building," said Dana Berliner, senior attorney at the institute. "And I am sure that criminal prosecutions would be more efficient if we got rid of the Bill of Rights. But that is not the way we do things in this country."

Berliner is the author of a nationwide study that gathers together what she says are 10,000 examples of municipalities misusing eminent domain. In about 3,700 of these cases, she writes, homeowners and small businesses have been forced to sell their property to private developers.

The Institute for Justice is representing 17 families in Lakewood without charge. It has asked a local court to halt the condemnation of their property. Berliner said she would love to take this case to the Ohio Supreme Court and to the U.S. Supreme Court.

"It is so obviously an excuse by the town to take property and give it to a developer," she said.

The Constitution and most state constitutions grant municipalities the right to compel the sale of private land at a fair price, if it is for public use.

But the definition of public use has changed substantially in the past half century, according to Gideon Kanner, professor emeritus at Loyola Law School in Los Angeles and editor of a newsletter that reviews eminent domain cases.

The change began slowly, Kanner said, after a 1954 Supreme Court ruling on slum removal in the District of Columbia. The court ruled that the District, to clean up blight in Southwest Washington, could use its power of eminent domain on an area-wide basis and did not have to engage in a house-by-house assessment of blight.

Before the decision, eminent domain was primarily used to make way for highways, courthouses and schools. But since the high court ruling, according to Kanner, who has reviewed tens of thousands of these cases, the power has increasingly been used to demolish private houses and small businesses for the construction of townhouse complexes, skyscrapers and big-box retailers. Private newcomers almost always pay substantially higher taxes than their demolished predecessors.

"It is a racket," said Kanner, who over the years has become what he calls an angry critic of the process. "Towns are misusing the power of eminent domain in an effort to raise money, which they should properly be doing with taxes."

Experts on urban development strongly disagree with Kanner. They are alarmed by what they see as a growing movement by libertarians and conservatives to ratchet back eminent domain.

"Cities only have so many options," said Bruce Katz, director of the Center on Urban and Metropolitan Policy at the Brookings Institution. "Eminent domain is a critical tool for cities that are depopulated. It is a way for them to protect the interests of all the citizens in a community by ensuring that the future tax base is secure."

Katz and other experts say that Lakewood is a national example of how to manage an older, inner-ring suburb. The schools and library are highly rated, services are considered good and housing values have been rising steadily.

The suburb, though, does have money problems. It has absorbed a number of low-income people fleeing Cleveland's bad schools, and there has been some flight of high-income residents to distant suburbs. As a result, property taxes in Lakewood have risen and are among the highest in northern Ohio.

To preserve the town, Lakewood has no choice but to move aggressively "to grow its tax base," said Edward W. Hill, a professor at Cleveland State University's Levin College of Urban Affairs.

Unfortunately, Hill said, a handful of homeowners will have to be displaced so that Lakewood does not wither away with rising taxes and declining service.

"If the Institute for Justice succeeds in halting this use of eminent domain, the ability of local government to recycle land will be pretty much over," said Hill, who lives in Lakewood.

The shopping and townhouse development in Lakewood is stalled, awaiting a local court ruling on a request by the institute to halt the city's use of eminent domain.

On her porch, in the Lakewood neighborhood she may soon leave, Joann Saleet said she is grateful that lawyers from Washington showed up to fight for her house.

"None of us are wealthy," she said, as birds chirped in nearby trees. "When the institute came in and went to court for us, it was the first time we felt we had a chance."