Correction to This Article
A May 7 Real Estate article incorrectly said that the site of the planned baseball stadium for the Washington Nationals is in Anacostia. The site is in Southeast Washington west of the Anacostia River, across the river from the Anacostia neighborhood.

Fighting The Power To Take Your Home

By Kirstin Downey
Washington Post Staff Writer
Saturday, May 7, 2005

Prince George's County Executive Jack B. Johnson set off a furor in March by warning during a radio broadcast that the county might tear down some crime-riddled apartment complexes if the owners didn't do more to step up security.

Within days, dozens of renters who lived in the apartments had staged rallies in defense of their homes, demonstrating at a government building and one of the apartment buildings. Johnson quickly backed off, but one thing was clear: Even an off-hand mention of the mighty government power to seize people's property set off powerful emotions.

The words Johnson used were "eminent domain," the condemnation process by which government agencies are allowed to take land from property owners. Under the Fifth Amendment to the U.S. Constitution, governmental entities can take private property for public use, as long as the owner is given a fair price, or what the amendment calls "just compensation."

Eminent domain is a phrase that is increasingly cropping up when people talk about land use in the Washington area. In the District, for example, the government has sent letters to 33 property owners telling them it intends to buy their properties to build a baseball stadium in Anacostia. The District is also pushing ahead with its plan to buy 16 properties to redevelop the Skyland Shopping Center in Southeast Washington, with a Target store as the proposed centerpiece. In both cases, the D.C. government has said it will use eminent domain to compel the property owners to sell if they do not do so voluntarily.

In Maryland, 30 to 50 homes would be affected if the long-proposed Intercounty Connector, a highway linking Montgomery and Prince George's counties, were to be constructed. The project has been mired in controversy for 40 years, but may have additional traction now because Maryland Gov. Robert L. Ehrlich Jr. (R) has made it a priority.

And in Virginia, public hearings will be held next week on the proposed Tri-County Parkway, a new 10.5-mile highway that would cross Fairfax, Loudoun and Prince William counties. It is not funded, but if it were to go forward, 13 to 22 houses would be taken.

So how should homeowners react if they find themselves in such a situation?

Most people accept the practice of eminent domain, even if they consider it unpleasant and distasteful, particularly when the government takes the land for something that is clearly a public use, such as a school, a highway overpass or a bridge. They realize millions of people benefit from the land transfer, from children sailing boats at New York's Central Park, to Washington commuters riding Metro to work, to tourists strolling at Baltimore's Inner Harbor, to motorists driving from soccer practice to shopping centers.

But another kind of eminent domain is receiving critical scrutiny. Many municipalities use eminent domain to assemble land for redevelopment, either to revitalize downtowns or to boost tax revenues. A case pending before the Supreme Court, Kelo v. New London , concerns a redevelopment plan in Connecticut; it questions the use of eminent domain when governments take the land from some property owners to make it available to other property owners, alleging that the private use makes the land transfer unconstitutional and illegal. The case's success in reaching the Supreme Court has re-opened a policy debate that started in 1954, when a landmark case involving the redevelopment of Southwest Washington allowed governments to use eminent domain for urban renewal and slum removal projects.

In an interview this week, Washington Mayor Anthony Williams (D) said the outcome of the Kelo case could affect the Skyland Shopping Center project. "It would have severe long-term effects on many government projects," said Williams, who also serves as president of the National League of Cities. "It would jettison" the long-sought shopping center redevelopment, he said.

About 90 percent of condemnations, however, involve properties acquired for purely public purposes, and they make up most eminent domain actions, said James L. Thompson, a Rockville real estate lawyer whose firm has handled more than 200 eminent domain actions over 25 years.

Many property owners who find themselves in the middle of such a land transfer do not object to leaving, but for many others, the process is fraught with emotion. Connecticut nurse Susette Kelo, for example, the lead plaintiff in the case pending before the Supreme Court, has staged rallies and protests, testified and fought a seven-year legal battle to protest the condemnation of her Victorian house to make way for a luxury waterfront hotel and office park. Similarly, homeowners at the site of the proposed Washington baseball stadium and the commercial tenants at the Skyland Shopping Center have denounced plans to relocate them to permit the land to be used in other ways .

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