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Redevelopment Railroaded?

August 4, 2005 By:
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rep. Jim Gerlach
The U.S. Supreme Court is generally viewed as the final arbiter of disputes in the country. But the debate over whether municipalities such as Lower Merion Township can transfer property from one owner to another in the hopes of revitalizing a neighborhood and increasing its tax base - an issue the court ruled on just last month - is far from over.

Opponents of Lower Merion's plan to seize private property along Lancaster Avenue in downtown Ardmore to make way for a series of development projects had placed their hopes in the nation's highest court.

But the court didn't prove much help to their cause. In its 5-4 ruling in Kelo v. New London, handed down on June 23, the Supreme Court failed to grant relief to a group of Connecticut homeowners who hoped to prevent the city of New London from invoking eminent domain and taking their property in order to make room for an office park. The measure, city officials maintain, is essential to beating back economic depression.

In his majority opinion, Justice John Paul Stevens wrote that the court could only determine whether or not New London's plans fit the Fifth Amendment requirement of "public use" in its proposed property seizures. Because the plans did, "we may not grant petitioners the relief that they seek."

Such a ruling would appear to undercut the opponents of Ardmore's development, as indeed legal scholars asserted immediately after the ruling in the Connecticut case.

But just two weeks after the decision was handed down, Sharon Eckstein, president of the Save Ardmore Coalition, an organization formed early this year to battle Lower Merion's plans, headed off to Washington, D.C., with two other members for a three-day conference of activists from around the country determined to halt what they perceive as government's widespread abuse of eminent domain.

Eckstein admitted that she wanted the New London residents to win, but that her group still had a chance to prevent Lower Merion from demolishing Ardmore businesses.

"If the Supreme Court decision had gone the other way, it would have made things very easy," said Eckstein, a member of Temple Beth Hillel/Beth El. "We still have merits to our case."

Eckstein was referring specifically to a federal lawsuit filed April 8 on behalf of her coalition that aims to stop the township from demolishing seven businesses along Lancaster Avenue. The municipality wants to build a new train station, additional commuter parking, and more office, retail and residential space. No court dates have been set.

The suit also claims that the development in downtown Ardmore - which is in relatively close proximity to roughly half-a-dozen-synagogues and home to several Jewish-owned businesses - would strip the area of its historic character.

Doug Cleland, township manager for Lower Merion, said that because a lawsuit was pending, he could not offer comment for the story.

Meanwhile, Eckstein's hopes have been buoyed by a flurry of legislative activity that has openly challenged the wisdom of the Supreme Court.

One bill being considered by the General Assembly in Harrisburg would severely limit the ability of Pennsylvania municipalities to seize private property.

In Washington, two bills on Capitol Hill would go so far as to deny federal funds from towns and cities that seized private property, except for the construction of roads, parks, hospitals and the like.

On June 30, U.S. Rep. James Sensenbrenner (R-Wis.) introduced the Private Property Rights Protection Act. In his floor speech, the legislator said the purpose of the bill is "to assure the American people that we will not allow churches, homes, farms and other private property to be bulldozed in abusive land grabs that solely benefit private individuals."

The bill - which is on fast-track status due to Sensenbrenner's position as chairman of the House Judiciary Committee - would cut off any municipality that invokes eminent domain for the purpose of economic development. U.S. Sen. John Cornyn (R-Texas) introduced a similar bill in the Senate.

A Question of Authority
U.S. Rep. Jim Gerlach (R-District 6), whose congressional district includes Ardmore, indicated he plans to support Sensenbrenner's bill. This comes despite the fact that township officials have linked the $6 million in federal funding secured by Gerlach for the new train station to the redevelopment on Lancaster Avenue.

"Clearly, the Supreme Court's decision in the Kelo case now makes constitutional the ability of government to condemn private property for redevelopment by other private parties," said Gerlach in an e-mail. "I personally believe that the Constitution only permits condemnation of private property by government for public use, not private use."

Such talk of constitutional authority might strike some as odd, considering that the eminent domain bill pending in Congress is an attempt to overrule the Supreme Court.

Not so, according to University of Pennsylvania law professor Theodore Ruger.

"The basic rule is that when Congress spends money, it can require conditions of the recipient of that money," said Ruger.

"If it passes," he continued, "it will effectively end the practice. No city or state will be wealthy enough to turn its nose at federal funds."

 

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