States revisit taking of homes by eminent domain

LONG BRANCH, N.J. -- The city wants Anna DeFaria's home, and if she doesn't sell willingly, officials are going to take it from the 80-year-old retired preschool teacher.

In place of her ''tiny slip of a bungalow" -- and two dozen other weathered, working-class beachfront homes -- city officials want private developers to build upscale townhouses.

Is this the work of a cruel government? Or the best hope for resurrecting an ocean resort town that is showing signs of reviving after decades of hard times?

Echoes of the debate are being heard across the country, after a US Supreme Court decision brought new attention to governments' ability to seize property through the tool of eminent domain. About 40 states are reexamining their laws, and Congress also is considering action, after the court's unpopular ruling.

''We thought this was going to be our home forever," said DeFaria, sitting in a kitchen cozy with photos of children and grandchildren, quotes from the Bible, and a game of Scrabble that she plays against herself. ''Now they want to take it away. It's unfair, it's criminal, it's unconstitutional."

Not according to the Supreme Court. In a 5-to-4 ruling last June that was greeted with widespread criticism, the court found that New London, Conn., had the authority to take homes for a private development project.

The Constitution says governments cannot take private property for public use without ''just compensation."

Governments have traditionally used eminent domain to build public projects such as roads, reservoirs, and parks. But for decades, the court has been expanding the definition of public use, allowing cities to employ eminent domain to eliminate blight.

The high court, in its ruling, also noted that states are free to ban that practice -- and legislators around the country are thinking about whether they should do just that.

New Jersey state Senator Diane Allen, with bipartisan support, is pushing for a two-year ban on all eminent domain actions and for a bipartisan study group to reexamine its use in New Jersey.

''Right now, government, I think, is using eminent domain to take people's private properties and hand it over to another owner," said Allen, a Republican. ''It's really putting a hole in the American dream. Ownership of private property plays such a large role in that dream."

After the court ruling, four states passed laws reining in eminent domain. About 40 more are considering legislation.

In Congress, the House voted to deny federal funds to any project that used eminent domain to benefit a private development, and a federal study aims to examine how widely it is used.

The Washington-based Institute for Justice, a libertarian advocacy group that worked for homeowners in the New London case and in Long Branch, argues that state laws should be changed so property can be seized only for public uses such as a park or a school -- not urban redevelopment that benefits private developers.

Redevelopment usually depends on defining an area as ''blighted" or a ''slum," though definitions are vague, said Bert Gall, an attorney with the institute. Criteria can include a building's age, lack of compliance with building codes, even the size of a yard.

Abuses are widespread, Gall said, claiming that over a five-year period ending in 2002, more than 10,000 properties were threatened by eminent domain.

Municipal leaders across the country are pushing back, arguing that it is false to claim that eminent domain is widely abused and warning that an emotional backlash to the court ruling is putting at risk an important tool that has helped turn around areas such as Times Square and Baltimore's Inner Harbor.

Elected officials have difficult decisions to make, and often must balance a community's needs with a few individuals, said Don Borut, executive director of the National League of Cities.

The plight of homeowners is hard to ignore, he said.

''But at the same time . . . there are hundreds if not a couple of thousand faces of people you don't see, of people of all levels of income who, as a result of the economic development, will get jobs," he added.

In Long Branch, there is no doubt the city needed to do something -- a comeback was not happening on its own, Mayor Adam Schneider said. ''Most people wouldn't walk down those streets anymore," he said. ''The worst neighborhood in our city was along our oceanfront. And that's been reversed."

Already, people are coming to new shops along the central waterfront. Rows and rows of new condominiums shadow DeFaria's one-story home.

DeFaria said she was offered $325,000 for the home she and her late husband bought in 1960 for $6,400. But it's not the money, she said: $1 million would not persuade her. ''They're taking my home away -- not my house. My home. My life."