A battle over property rights
State Representative Marty Walz says she only has to gaze out at the towers of luxury housing that occupy the area where a vibrant working-class neighborhood once stood to be convinced of the danger of unchecked government power to seize private property.
It was 50 years ago that the city forced thousands of residents out of their homes in the old West End neighborhood to make way for the Charles River Park apartments that were touted as the kind of economic shot in the arm Boston needed to bring fresh vitality - and wealth - to its downtown residential base.
Walz, whose Back Bay-based district includes the West End, worries that such a thing could happen again, and her effort to rein in eminent domain powers has caused a tempest among municipal officials and development types.
Though land takings for public use are provided for in the Fifth Amendment to the Constitution, courts have expanded that authority over the years to include property takings not just for literal public uses such as a road or new school building, but for more broadly construed public benefits, such as revitalization of a blighted neighborhood. But nothing in recent years has stirred the passions of those concerned about creeping government authority in this area quite like the Kelo ruling issued three years ago by the US Supreme Court.
In the Kelo case, brought by a New London, Conn., homeowner facing the loss of her house, the court upheld the right of the coastal Connecticut city to take the property as part of plans for a massive mixed-use private development.
In a 5-to-4 decision, with the court's more liberal members in the majority, the justices ruled that job creation and an expansion of the city's tax base constituted a "public purpose" in keeping with the Constitution's idea of public use.
The ruling set loose a backlash of property-rights indignation, including, at one point, a half-serious effort to have the New Hampshire home of Justice David Souter taken by eminent domain and replaced by a hotel. But the reaction has involved more than just political theater. Since the Kelo decision, 43 states have passed legislation limiting eminent domain powers to one degree or another.
Walz is the lead sponsor of a bill that would ban the use of eminent domain to facilitate private development.
"I don't think it's an appropriate use of government authority to take your home and give it to someone else because they have more power," said Walz. Her bill passed the House this month, but it is unclear whether the Senate will take it up in the two weeks remaining in the session.
The proposal is getting a cool reception from municipal officials eager to preserve their land-taking authority. Geoff Beckwith, director of the Massachusetts Municipal Association, says the bill "would undermine significantly economic development and affordable housing in the Commonwealth" and "deserves a quick death."
"It's a terrible mistake to hamstring city governments like this and redevelopment authorities," says John Palmieri, director of the Boston Redevelopment Authority. Palmieri says eminent domain is used infrequently but it is crucial to retain power to seize blighted properties that stand in the way of economic revitalization plans.
Two long-vacant buildings in Dudley Square were taken by the city as part of a project now underway to site a new municipal building there.
The issue defies easy ideological pigeon-holing. Although the losing challenge to the Connecticut land-taking was supported by the court's four most conservative members and was filed by a national libertarian legal rights firm, the NAACP filed a brief on behalf of the aggrieved homeowners.
Like the civil rights group, Walz, a liberal Democrat, finds herself in the company of strange political bedfellows on the issue, but she evinces no qualms about that.
"Aren't liberals supposed to protect the politically powerless against the politically powerful?" she says.
Michael Jonas can be reached at jonas@globe.com. 