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Mass. Proposal Would Make It Harder to Seize Homes

Fri June 19, 2009 - Northeast Edition

BOSTON (AP) A group of Massachusetts lawmakers are looking to toughen protections for homeowners four years after the nation’s highest court ruled cities may bulldoze people’s houses to make way for shopping malls.

The Republican-led initiative would add Massachusetts to a long list of states to limit the taking of private property by eminent domain for commercial development since the contentious 2005 Supreme Court decision.

That case involved efforts by the city of New London, Conn., to revitalize its downtown by constructing a riverfront hotel, health club and offices.

The project required the city to seize homes in a working class neighborhood to clear land. Susette Kelo and other homeowners refused, even after the city offered compensation, arguing it was an unjustified taking of their property.

A divided Supreme Court ruled in favor of the city, saying its attempts to seize the homes were constitutional under the Fifth Amendment, which allows governments to take private property for public use.

But critics, including then-Justice Sandra Day O’Connor, said the decision handed too much power to the wealthy and politically connected.

“Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory,’’ she wrote in a dissenting opinion.

After the ruling, states across the country raced to toughen their eminent domain laws to protect property owners. More than 40 states have limited the circumstances under which property can be seized, according to the National Conference of State Legislatures.

Last year, voters in California approved a measure prohibiting the use of eminent domain “to acquire an owner-occupied residence to convey it to a private entity.’’ In April, Delaware passed a law barring governments or other agencies from taking property solely for economic development.

Now, some in Massachusetts are saying it’s time to ensure municipal and state agencies also are barred from taking private property from one owner to give to another.

“It’s un-American,’’ said Rep. Lewis Evangelidis, R-Holden, an amendment sponsor. “To simply take property and hand it over to a private enterprise — I don’t think that’s what a civil society should do to its citizens.’’

The amendment would allow a government entity to take private property “only when necessary for the possession, occupation, and enjoyment of land by the public at large, or by public agencies.’’

The amendment would bar private property from being taken “for private commercial enterprise, for economic development, or for any other private use’’ even “on the grounds that the public will benefit from a more profitable private use.’’

It also leaves it up to the courts, and not the Legislature, to have the final say on what constitutes a “public use.’’

Geoff Beckwith, executive director of the Massachusetts Municipal Association, called the proposed amendment an “extreme overreaction.’’ He said cities and towns are already required to go through a long public process before seizing property.

“This would make it difficult to advance projects that are very rare, but would improve economic vitality,’’ Beckwith said.

He added there’s no evidence of eminent domain abuse in Massachusetts.

“This is a solution where there is no problem,’’ Beckwith said.

The proposed constitutional amendment faces a series of hurdles.

It must be approved by a majority of lawmakers meeting in a joint “constitutional convention’’ in two back-to-back sittings of the Legislature before being placed on the ballot, where it would have to be approved by voters.

Massachusetts has a history of taking private property.

Homes were torn down to make way for the first Boston harbor tunnels and for the construction of the Massachusetts Turnpike. During the “urban renewal’’ efforts of the 1950s and 60s, entire neighborhoods were demolished — most notoriously Boston’s West End — after being declared slums.

Perhaps the most dramatic seizure of private property in the state’s history was the creation of the Quabbin Reservoir to provide safe drinking water to the metropolitan Boston area.

Beneath the reservoir’s waters are the original locations of four towns — Dana, Enfield, Greenwich, and Prescott — all of which had to be dissolved in 1938 to make way for what is now the largest body of water in the state.

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