American Dream

State lawmakers join eminent domain fight
Supreme Court ruling sparks national push to change laws

by Margie Hyslop
Staff Writer
Aug. 10, 2005

Quotes:

The two hottest words in both Congress and the state
legislatures around the nation these days are "eminent domain," and the Maryland General Assembly is no exception.

The U.S. Supreme Court -- relying in part on language from the Maryland Court of Appeals -- ruled June 23 that local governments have wide latitude in taking private property. A firestorm over property rights has ensued, and lawmakers are responding.

The Maryland Attorney General's Office says that state law on eminent domain mirrors the high court's decision, and in fact local governments here may have broader powers to seize private property.

Lawmakers in about half of all states are working to draft limits on use of eminent domain. Action is also expected in
Congress to try to limit the effect of the ruling.

Last week, Alabama's legislature approved extra curbs in a special session, and Alabama's governor signed the measure into law.

In Annapolis, Gov. Robert L. Ehrlich Jr. (R) and lawmakers from both parties predict a flurry of bills limiting eminent domain will be considered when the legislature reconvenes in January.

Ehrlich "is not pleased with the direction the [U.S.] Supreme Court took" when it ruled in a New London, Conn., case that local governments could force the sale of private property to permit redevelopment that would increase jobs or tax revenue.

The governor is looking at "all options" to protect landowners, Ehrlich spokeswoman Shareese N. DeLeaver said, adding that he is a strong supporter of private propertyrights.

Lawmakers are drafting a range of proposals from amending the state Constitution to bills that would ban or limit a government's ability to take private property for public use.

Senate President Thomas V. Mike Miller Jr. said a proposal to change Maryland's constitution to limit use of eminent domain would pass "overwhelmingly" if it goes on the ballot.

But Miller said he is not sure that such a measure could garner the support of two-thirds of both Senate and House members that it needs to go to voters.

"I think it's an issue that should go to voters," said Miller (D-Dist. 27) of Chesapeake Beach.

If local governments do not want their use of eminent domain curbed, Miller said, they must convince state lawmakers.

The attorney general has issued two opinions in recent weeks on the local effect of the national ruling.

Robert A. Zarnoch, assistant attorney general and counsel to the General Assembly, wrote July 18 that Maryland courts have long recognized the power of local government that was reaffirmed by the Supreme Court.

"Ironically, if there is any impact from [the Supreme
Court's decision] in Maryland, it might be a limiting one," Zarnoch wrote.

A second opinion issued Aug. 1 said Maryland's constitution does not define public use, but leaves it for courts to decide,
Assistant Attorney General Kathryn M. Rowe wrote in response to a request from Del. Donald H. Dwyer Jr. (R-Dist. 31) of Glen Burnie.

"Court of Appeals cases, particularly those interpreting the Maryland Constitution, have long recognized that property can be condemned for economic development purposes," Rowe wrote.

"... This power exists whether or not the property to be condemned is blighted or substandard," she continued, noting that in its decision on the Connecticut case the Supreme Court cited Maryland Court of Appeals cases which found that providing jobs and economic benefit is a "public use."

She said it appears that Maryland's highest court has not found an eminent domain case to involve a private use.

Lawmakers could change statutes to impose restrictions on the use of eminent domain, Rowe said.

Senate Minority Whip Andrew P. Harris said he will propose revising the constitution's Declaration of Rights to prohibit governments from taking private property except in cases of clearly and strictly defined public needs such as roads, schools and libraries.

Use of eminent domain to cure "blight" -- the grounds on which New London won its case -- should be very limited, Harris said. He wants to require that any condemnation for blight to go to voters for approval.

"One man's blight is another man's home," said Harris (R-Dist. 7) of Cockeysville.

That's something Harris' constituents, particularly in east Baltimore County, know from a bruising battle five years ago over the county's effort to seize homes, apartments and small businesses to create upscale residential and retail development along the Middle River.

Harris was one of only four senators to vote against SB 509 in 2000, which authorized taking the property.

The legislature backed the Middle River land condemnation by a larger margin in the House, where many delegates said they supported it because most Baltimore County lawmakers did.

"I don't want local courtesy to cloud this issue," Harris said.

Del. Richard K. Impallaria (R-Dist. 7) of Middle River helped lead the revolt against SB 509, working with other business owners and residents to gather 40,000 voters' signatures to force the measure onto the ballot.

Impallaria said he favors a many-pronged approach.

Impallaria said he expects next year to see bills that would limit the scope of eminent domain statewide -- and in as many individual jurisdictions as possible. He said the bills would mandate a referendum on any land condemnation that is not clearly for a public use and would require that if seized land is not used, it would be offered back to the owner for the price the government paid and in the same condition.

Del. Jean B. Cryor said she hopes that a bill would be sponsored by a member of the House Judiciary Committee, which would first consider such legislation, because a committee member would be best positioned to work it to a floor vote.

Cryor (R-Dist. 15) of Potomac said she stands ready to sponsor a statewide bill that also would prohibit the use of state or local government money for purchases that are not clearly a
public need, as well as a measure to limit land condemnation in Montgomery County.

"Anywhere I go in my district, people are bringing it up to me, and they're angry and disgusted," Cryor said.

Senate Judicial Proceedings Chairman Brian E. Frosh said he wants to read the Supreme Court decision before deciding whether raising the bar on eminent domain's use in Maryland is warranted.

"Typically, in a case that's controversial, you get strong public reaction," but it is necessary to read the opinion to determine if the reaction is warranted, said Frosh (D-Dist. 16) of Bethesda, who is a lawyer.

[See also [Md. House Speaker] Busch cools talk of eminent domain amendment for a follow-up story.]