MMCLUB

[BullNBear52]

Actually they condemned his property. He ended up suing and lost....

Interesting the same comparisons as the recent case...

Private property rights vs. public use and how FedEx fits in
From the April 28, 2000 print edition


Keith Debbage
Private property rights and home ownership are essential elements of the American Dream, and the right to be "masters of our own domain" is deeply ingrained in our nation's cultural fabric.

Much of the reverence for private property rights originates from our healthy respect for Jeffersonian-style grass-roots democracy, local autonomy and the celebration of individual invention through the U.S. Constitution and the Bill of Rights.

To interfere or infringe on these rights in any way is always likely to be an unpopular exercise, even though the power of eminent domain to "take" land for public use is also grounded in the very same U.S. Constitution.

Although the theoretical debate over the titanic collision of private property rights and the public interest may seem esoteric to the casual reader of The Business Journal, it is likely to take on heightened meaning for many members of our Triad community over the next few years.

As the debate over the proposed FedEx air cargo hub continues apace with the recent release of the Environmental Impact Statement, it is becoming increasingly obvious that some land-owners near the airport may be compelled to sell their properties to make way for the FedEx project.

Although the physical seizure or taking of property for public use is rarely a pleasant experience for the landowner and is often used as a measure of last resort, it remains a legitimate and necessary power of government grounded in the Fifth Amendment of the U.S. Constitution.

The next time you drive along a major highway, visit a public building or stroll in one of the Triad's many splendid public parks, spare a thought for the prior landowner and the numerous homes that no doubt existed at that location before the property was taken by government through the power of eminent domain.

It is an unfortunate fact-of-life that American cities are dynamic organisms that change and grow in unpredictable ways, and often times this involves painful choices made in the public interest. Although landowners are entitled to just compensation when land is condemned for a public use, the real difficulty can often lie in defining exactly what the term public interest really means.

We can all probably agree that using the power of eminent do-main to acquire land for highways, schools, libraries and public parks is a legitimate exercise of government power.

But what about the proposed air freight hub where FedEx plans to lease a building that is owned by the Piedmont Triad Airport Authority and built through municipal bonds? The quasi-public nature of the Airport Authority blurs the edges of what public interest means in this case.

In one of the first legal skirmishes involving the proposed hub, a local resident on Old Oak Ridge Road near the airport recently contended that the Airport Authority violated the U.S. Constitution by condemning his house for the principal benefit of a private corporation -- FedEx.

Although the Guilford County Superior Court recently upheld the constitutionality of the condemnation, the incident raises the thorny issue of whether or not government may take property for non-public use.

Substantial changes in the judicial interpretation of "public use" have taken place over the past few decades. Until the early 1950's, the courts interpreted the public use doctrine as meaning that property which was taken by government had to be literally used by a public body (e.g., park, school).

More recently, the courts have substantially broadened the notion of public use whereby public use can mean for public benefit or advantage.

In a particularly well-known and controversial case (Poletown Neighborhood Council vs. City of Detroit, 1981), Detroit used eminent domain to condemn the Poletown neighborhood to provide a site for a new General Motors plant. The Michigan Supreme Court upheld the taking by arguing that public use and public benefit were interchangeable.

The Michigan high court also argued that revitalizing the economic base of the community was a legitimate public purpose to which eminent domain can be applied.

All this, despite the fact that the new GM plant led to the destruction of more than 1,000 homes, more than 100 businesses, 16 churches, three schools and a hospital.

While Michigan is not North Carolina, we should pay close attention to the legal workings in other states before suggesting that the Piedmont Triad Airport Authority is somehow acting inappropriately in acquiring land for the proposed FedEx hub.

As the possibility of hundreds of condemnation cases looms large for some landowners in the airport area, the Airport Author-ity must take care to avoid indiscriminately trampling over the sacred private property rights of nearby residents.

On the other hand, private property owners will need to be more cognizant of the legitimacy of eminent domain as a measure of last resort for achieving a wide range of public policy goals.

Whether or not we can do all this in a civil way is another matter altogether.

Keith Debbage is an associate professor of urban-economic geography at UNC-Greensboro with research interests in city and regional planning. He is also a member of The Business Journal's Editorial Board of Contributors.


http://www.bizjournals.com/triad/stories/2000/05/01/editorial3.html?t=printable