Fighting The Power To Take Your Home

Sometimes the wrangling lasts a lifetime. Elizabeth Beall Banks, who died in January at age 93, had spent much of her adult life fighting off efforts to redevelop her 138-acre farm on Route 28 in Rockville, once waving a shotgun at Montgomery County park and planning officials who used the eminent-domain process to claim part of her property for road expansion. As traffic congestion grew over the years, government officials used eminent domain there to widen the Muddy Branch Road and Great Seneca Highway, Merle Steiner, a longtime friend of Banks, said recently.

Nobody knows exactly how many properties change hands each year through government action, partially because so many government agencies -- city and county governments, state transportation departments, the federal government, even public utilities -- have the power of eminent domain. The transfers often involve small pieces of land, such as a 10-foot strip to permit a wider turning lane for cars pulling onto a highway, and they attract little or no controversy.

The libertarian group that is funding the Kelo lawsuit, the Institute for Justice, which focuses on eminent domain used on behalf of for-profit operations, has studied news reports and court filings nationwide and calculated that from January 1998 to December 2002, 3,722 condemnation procedures were filed by government agencies on behalf of private entities, including big-box retailers such as Target and Costco or for casino parking lots.

The cases typically pit individual rights against public rights, or at least the public rights as some perceive them.

"I wouldn't want eminent domain either, if it were my house," said Lora Lucero, a lawyer with the American Planning Association. "When you're the target of eminent domain, you aren't going to like it. . . . But without eminent domain, we'd hamstring the general public's interest at the expense of one individual."

Many people learn they are at risk of eminent domain when they hear about plans for future development near their homes. Houses near major roads often are included in master plans for highway expansion, but the owners may never know it because the master plans are never funded. They hear the news as a rumor in the neighborhood or in an vaguely-worded article in a local newspaper recounting a recent planning meeting. For homeowners, even the existence of such a plan is worth noting -- and for many, worth protesting at forums such as planning meetings.

The eminent domain process varies from state to state and county to county, making it difficult to generalize, but typically the chain of events that results in property loss begins with a letter in the mail. A government employee, sometimes called a "right-of-way agent," contacts the property owner to say his property is needed for a particular purpose, such as a road, and that the agency, the Virginia Department of Transportation, for example, will be sending an appraiser to look at the site and try to establish its value. The property is inspected. Soon after, the property owner is contacted for a meeting.

Most homeowners are incredulous at this point, Thompson said. About 20 percent became "very emotional."

"The first thing they say is, 'Jim, I want you to stop this,' " he said. "They are passionate. . . . Business people look at it in a more objective way. They say, 'Can they do this?' And I say, 'Yes, the law permits them. The question is mitigating the damage and paying compensation.' "

And while some people, like Banks, may be able to hold on to much of their land, for many others fighting eminent domain means fighting to get the most money possible out of the government.

The government entity tells the property-owner how much it is willing to pay. Often that figure appears surprisingly low, Thompson said. But it can be just the opening round of negotiations.

"Many, many times the appraiser for the state appraises many properties for the state," Thompson said. "They get to be favorites because they appraise at low numbers. They come back again and again with low appraisals."