Opinion » Editorial

Whose Domain?



Earlier this month ranking officers in the Riverfront Development Corporation squared off in spirited debate with members of Friends for our Riverfront, an ad hoc civic organization which opposes the quasi-public RDC's ambitious (and expensive) long-range plan for developing the city's downtown waterfront. That stretch of land includes some of the most priceless (in every sense of the term) real estate in our vicinity - some of it private, much of it public. Concern was expressed at that forum as to just how much of the land was vulnerable to co-optation under the terms of the Supreme Court's recent Kelo v. New London ruling governing seizure of property by eminent domain.

The long and the short of it was that nobody seemed to know, and the debate moved on to other matters, such as the expenses, wholly or partially to be borne by taxpayers, that a fully implemented RDC plan might incur. Also discussed were the project's possible short- and long-term effects, both aesthetic and ecological. The plan's financial risks - particularly if all of its contemplated stages, including a mammoth land-bridge, are completed - are considerable. But the bottom-line issue remains one of balancing public good with private preferences, and the rights of citizens against those of developers, whether these latter be cloaked in public or private garb.

Which takes us right back to Kelo. The thrust of the ruling seems to be that governmental entities have virtually unbridled opportunity to exercise the right of eminent domain, even if the ultimate aim of appropriating a property is to sacrifice an existing private use for the sake of a newer private development. The Court gave widest latitude to governmental bodies to pursue such seizures if the contemplated redevelopment is deemed by the governmental body to be in the public interest.

The opportunities for abuse of this ruling by unscrupulous public officials were so manifest that politicians on both sides of the political aisle immediately expressed alarm. The resulting congressional resolution protesting the decision achieved a rare degree of unanimity, though a subsequent bill to prohibit government spending on such projects garnered lesser support. In any case, a saving grace was provided by the court. As Justice John Paul Stevens wrote, nothing in the majority opinion precluded "any state from placing further restrictions on its exercise of the takings power."

That puts the ball squarely in another court - that of the Tennessee legislature, for which the eminent-domain crisis may have the effect of a wake-up call. Two bills have been hurriedly prepared for consideration by the General Assembly, which, taken together, could go far toward clarifying a murky picture and providing useful safeguards.

One measure, sponsored by Nashville senator Joe Haynes, would prohibit local governments from condemning private property "for the purpose of transferring or leasing of such properties to a private developer, corporation, or non-governmental entity" in order to expand tax revenue or promote economic development. So far so good, though Haynes' bill would be of limited import in any eminent domain case involving the Memphis riverfront.

A second bill, this one sponsored by Senator Mae Beavers of Mt. Juliet, would attempt to provide an exact and parse-free definition of the term "public use," one which could prevent or at least moderate the use of eminent domain for public projects that might later on turn into white elephants.

A lot of local eyes will be looking eastward when the debate begins. n

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