Eminent domain reform needed in Massachusetts

UNDER OUR SYSTEM OF GOVERNMENT, there are various powers that are absolute and from which there are no appeal.  One example of such a power would be the president’s pardon or executive clemency power.  A president can, theoretically, pardon anyone for a federal crime for any reason or for no reason.  Another example, a little closer to home, would be the eminent domain power – the power of government to take private property for any “public purpose” if the owners are paid “just compensation”.

A problem arises, not so much at the state level – where a plethora of procedural safeguards are in place – but at the local government level, which is, for the most part, composed of various boards and commissions, whose members are intelligent and well-meaning individuals, but who have had little, if any, training on how to function in their positions.  This lack of training and inexperience, coupled with the absolute authority of the eminent domain power, can lead to some unjust results.

Most of us will agree that the eminent domain power is a necessary power of government, where the needs of the few are subordinated to the needs of the many, with certain protections for private property rights built into the system.  When a government body with eminent domain power seeks to exercise that power, there is a presumption that the public purpose test has been satisfied.

Last fall, in an op-ed article by Jeff Jacoby entitled “Eminent domain abuse rears its menacing head in Plymouth County,” the Boston Globe reported that a developer was seeking to redevelop a vacant industrial property in Carver.  As part of its plans, the developer began to acquire some surrounding homes.  When several owners decided not to sell their property, the developer approached the Carver Board of Selectmen, and with the lure of economic development and increased tax revenues, asked them to exercise the town’s eminent domain power to take the uncooperative owners’ property and then convey that property to the developer to complete the project.  It is at this point that most reasonable people, excluding the Carver Board of Selectmen and the developer, of course, would agree that this was an abuse of government’s eminent domain power.

The purpose of the eminent domain power is to allow government to undertake public works projects to benefit the town’s population.  And we can all understand the wisdom of that power.  The power was designed to prevent unwilling or uncooperative property owners from blocking necessary and proper public works projects, such as a reservoir, a road, or a school.  A prime example would be the Quabbin Reservoir Project of the 1930s.  Using its eminent domain power, the Commonwealth of Massachusetts took all property – both private and public – in the towns of Dana, Enfield, Greenwich, and Prescott, relocated the residents, disincorporated those towns (legally they ceased to exist), and subsequently flooded those towns to create the Quabbin Reservoir to ensure a plentiful and safe drinking water supply for more than 40 communities in the metropolitan Boston area.  The reservoir was a legitimate use of the eminent domain power.

But absent such circumstances, how should eminent domain power be used?  There is very little guidance in that respect.  In 1795, the US Supreme Court issued an opinion in Vanhorne’s Lessee v. Dorrance, in which eminent domain was described as a “despotic power,” but one that is necessary for “government could not subsist without it; and if this be the case, it cannot be lodged anywhere with so much safety as with the Legislature. The presumption is, that they will not call it into exercise except in urgent cases, or cases of the first necessity.”

Eminent domain is a power to be used sparingly by government for projects that are necessary to ensure the health and welfare of its citizens.  However, somewhere along the way, we have departed from that fundamental principle. Consider the US Supreme Court’s holding in Kelo v. New London (2005), which validated a municipality’s use of its eminent domain power in taking private homes to convey to a developer.  But that case was one of the latest, and certainly most egregious, in a long-line of court cases beginning in the early 1980s.

What should be the Massachusetts Legislature’s response?  Since the Kelo case, 45 states have enacted statutes to curb eminent domain abuse by preventing municipalities from taking private property and conveying that property to private parties.  However, Massachusetts, which is usually forward-thinking in so many areas, is not among those states.

There are other types of eminent domain abuse.  In Swampscott, a special election was held on June 29 which upheld a town meeting vote allowing the town to take an old railroad right of way, as well as portions of some abutting private residential properties for use as a recreational trail.  Is this a proper use of the eminent domain power?  Is taking private property by eminent domain for an important – although not entirely necessary – use a wise exercise of that power?  Does the necessity of a rail trail rise to the level of a reservoir, a road, or a school?

Should Massachusetts lead the nation, as it often does, in limiting eminent domain power, not just by preventing the seizure of private property to convey to a private developer, but by allowing the exercise of that awesome power only in cases of public necessity and not for discretionary reasons?  I am in favor of rail trails and other publically owned recreational facilities which are open to all.  But does the need for a recreational facility rise to the level of public necessity that would justify the exercise of the eminent domain power?

Paul L. DeBole is an assistant professor of political science at Lasell College in Newton.