Some say don't be hasty with effort to curb eminent domain
Some local officials are leery of proposed legislation that would ban communities from using eminent domain to take private property for economic development projects, even though they see the process as a last resort that is almost never used.
Introduced by state Representative Martha Walz, a Boston Democrat, the bill is a reaction to a 2005 Supreme Court decision that upheld New London, Conn.'s use of eminent domain to demolish a neighborhood to make way for a hotel and office complex. Since the decision, more than 30 states have passed laws restricting the use of eminent domain for economic revitalization, said Walz. She said the House of Representatives could vote on her bill at the end of this month.
"It's basically a city and government coming in and saying: We don't like what you are doing with your property; we're going to sell it to someone else," said Walz. "That is historically not something that's been done with eminent domain."
But officials in the suburbs west of Boston and the Massachusetts Municipal Association say the proposal would take away a potentially important tool without offering any replacement.
In Maynard, officials can't recollect a time when the town used eminent domain for economic revitalization, but they are wary of giving up the option as they face a property crunch in its downtown area, said Town Administrator John Curran. The process allows the government to take private property for the public good, while compensating owners for the fair market value.
Curran said, for example, the use of eminent domain could come in handy for a commercial project where some added parking is needed to make the revitalization work.
"I think it is something that should be used as a last resort," said Curran. "But it's a useful tool in the toolbox, if you are trying to make strides in economic development."
Julian Suso, town manager for Framingham, likened the proposed legislation to unfunded mandates by the state, such as special education requirements, which many officials say keeps their communities financially bogged down. Using eminent domain to stimulate the economy is perhaps one way that communities could provide more tax revenue in the lean times, he suggested, though Suso noted that any such project would not be done lightly and would undergo significant analysis before moving forward.
"I think these are not unlike mandates that restrict communities but don't provide any reasonable alternatives," said Suso.
"In general, I think legislation which restricts the ability of local governments to manage their own affairs are to be avoided," he added.
The Massachusetts Municipal Association has recently written a letter to the state Legislature, denouncing Walz's bill.
Eminent domain has traditionally been used cautiously by cities and towns, and the new bill would potentially inhibit important and necessary economic renewal projects in the public's best interest, argues Geoff Beckwith, executive director of the Massachusetts Municipal Association.
"Sometimes it's used to leverage very important projects," said Beckwith. "This legislation would erode the ability for municipalities to act on the behalf of the public interest in terms of regenerating and improving parts of their communities."
But Walz says that in addition to being unfair to private property owners, eminent domain as a vehicle for economic stimulus can set the stage for political power plays.
"Often those with political power get the property of those who don't have any significant political power," said Walz.
Several urban renewal projects that used eminent domain have taken place in Boston, but such a tactic hasn't been employed for 30 years in the city, said Neal Tully, an attorney for Boston-based law firm Masterman, Culbert, & Tully LLP.
In Central Massachusetts, occasions have arisen, when towns usurp a small strip of land for a parking lot or roadway to help complete a retail or commercial project, but no homes have been demolished as a consequence of economic revitalization in these areas, he said.
Beckwith thinks the pending legislation is an overreaction to the Supreme Court case and would introduce ambiguous language into state law which might lead to more lawsuits.
Questions could surface over the true meaning of the phrase economic development, for example, he added.
"It would clearly trigger all sorts of potential interpretations and litigations which are beyond the state's purpose and intent," said Beckwith. 