Thompson at Large - author, journalist, blogger, and periodic talk radio host

When eminent domain gets out of control — especially in the name of "the people" — it's real people with real lives who pay the price

The calls were pouring in to the Senate office at a furious clip. Nothing surprising; impending legislation invariably stirred up feisty public response. But these calls were different. They had nothing to do with a looming U.S. Senate vote. In fact, the issue that prompted the passionate phone traffic wasn’t even on my radar screen. The outpouring of rage took everyone in our office by surprise.

“The federal government is stealing our land,” a caller declared. Another said, “They say they’re acting for the good of the people. Well, we’re people up here and what’s happening isn’t good for us, it isn’t good for our community, it’s bad for America and I demand to know how the hell you and your boss are going to help us.”

I didn’t know it at the time, but I was taking my first steps into the center of a political and moral cyclone that would rob me of certain illusions about what happens to actual people when they get in the path of the single-minded exercise of federal power. In the bargain, I would also be asked to choose between my loyalty to a political mentor and the pleading of my own conscience. Such a deal.

My title was administrative aide for Senator Howard Metzenbaum’s central Ohio office, located in Columbus. I was the guy in charge, and I had to admit I didn’t have a clue why the folks up near Cuyahoga Valley were so ready to take our office by storm. The phone calls changed all that fast. In a matter of days, I got more than familiar with a controversy surrounding the Cuyahoga Valley National Recreation Area.

In the mid-1970s, Congress had authorized the Park Service to acquire private land within the Recreation Area, explicating directing that government agency to do so in a way that preserved the culture of the communities along with the wildlife. In 1974, Congress established more than 30,000 acres as the Cuyahoga Valley National Recreation Area, along the banks of the Cuyahoga River (which famously caught fire in 1969 and became a watchword for pollution).

Expanding the size and number of national parks and recreation areas was a major congressional priority in the mid-seventies. It wasn’t difficult to get excited about preserving rolling floodplains, steep valley walls and ravines, lush upland forests, and refuge for a wide range of species. The people who lived in the park territory were supposed to be protected as part of a plan to create “a park for all people, for all time. Bob Lindley soon realized that was pretty much a joke — unfortunately with a punch line that threatened his home, his property, and his livelihood.

Lindley was born and raised on a farm in the Cuyahoga Valley area. Bob was nine year old when his dad caught his hired man sleeping out in the field instead of working. Young Bob took over for the hired man and continued farming. So you can imagine Bob’s surprise when two employees of the Park Service showed up to say he wasn’t a big time farmer. We’re going to classify you as a hobby farmer, the government men told Lindley. Oh, and by the way: We want your property. Bob said he wanted his property too. We’re going to buy your property outright, the men replied.

I heard about Lindley after I promised the people who called Metzenbaum’s office that I would investigate and get back to them. I discovered that the legislation creating the Cuyahoga Valley National Recreation Area had made clear that the people who live within the preserve must be considered a resource no less than the birds, trees, flowers and waterfalls. The Park Service chose to interpret this mandate in a way that seemed, well, rather odd to the people who lived there. Instead of using scenic easements to allow homeowners to keep their houses and become part of the park, thus preserving the community, the Park Service defied the specific intent of Congress by embarking on a program of compulsory and acquisition far more extensive than anything Congress and the local people had envisioned.

Using what is called a fee title purchase, the Park Service set about identifying properties to own. By this arrangement, landowners would cease to own their homes but could continue to stay in them for up to 25 years as a tenant of the government. Slowly but surely, “No Trespassing” signs began appearing on boarded up houses throughout the valley.

Longtime resident Bill Erdos got a letter saying the feds needed his property and that an appraiser would be coming out to determine the value of his spread. When he asked who made that determination and by what criteria, the Park Service replied: Your property is just on the list. Homeowner Burrell Tonkin asked a Park Service bureaucrat what would happen if he refused to sell. “He says we’ll send armed men and take it away from you. And that don’t worry me a great deal except for grandma, it would tear her all to pieces if I went away. So I decided to do the best I could do and just get out.”

I took a weekend and drove to the small town of Everett, close to ground zero in the land acquisition campaign. The homeowners I met were some of the most conservation-minded people imaginable. Many of the houses had belonged to families for over a century. These were people who had their own dreams, committed to living their lives free of heavy-handed government bureaucracy. The Park Service bureaucracy was forcing homeowners to sell houses and small businesses that could easily have been integrated into the park. Nobody I talked to could figure out the Park Service’s master plan.

Leonard Stein-Sapir was first told they wanted to put in a horse trail. When he showed them how a horse trail would be impossible on his land, the Park Service shifted gears and said they wanted to bulldoze Stein-Sapir’s house to create more open space. They “wanted to add another couple of acres to the thirty thousand acres they already had. Then they said they wanted to put in some kind of visitor center because they think it’s so nice. They want to take my home and make it a visitor center.”

I returned to work the following Monday and called Washington to see what could be done to help these people retain their homes and keep their communities intact. Metzenbaum’s top staffer told me the boss had decided to wait things out, hoping the crisis would dissipate on its own. I countered that by intervening in behalf of the local homeowners he could get the best of both worlds: doing the right thing and also getting positive press coverage. When Metzenbaum called me the next day, he wasn’t in a merry mood. And everyone who worked for Howard Metzenbaum knew to steer clear of his dark side.

“What the hell are you doing driving up there on weekends, representing me without authorization?” he demanded. Fair point; I figured that by going on my own time I didn’t need Washington’s approval. “Think again, chief,” he said. (“Chief was the nickname he used when he liked my stay-late, work-long attitude during the campaign. This time, the moniker didn’t suggest he was about to give me a raise.) “Anytime and anywhere you go as a member of my staff, that makes you my representative. I don’t like what’s happening to some of these homeowners any more than you do. But this is one hell of a national park and it’s good for Ohio and good for America.”

Metzenbaum continued, “This thing has become a damned hornet’s nest. The property-rights groups have gotten involved and those bastards spent a lot of money to make sure I never got to the Senate. Well, I’m here and you’re here, too, and we’re going to remember who we serve and why. The rights of the few have to give way to the needs of the majority — and besides, the homeowners are getting paid for their land.” I’ll never forget what came next. “Keith, if you stay in politics and if you ever run for office, you’ll learn what’s best for the people as a whole never satisfies everybody. Parks require space. You can’t make an omelet without breaking eggs. Now stay away from Cuyahoga Valley. Forget about it.”

For the rest of my days as a Senate staffer, I stayed away but didn’t forget. In retrospect, I was probably already thinking like a journalist when I made my field trip to Everett. Given a choice between "develop" and "conserve," it wasn't a hard choice for me when the issue was framed in general terms. But here the Park Service was the developer, and the property owners inside the newly created park were the actual conservationists.

The turnabout was remarkable, and it created an enormous conflict in my mind. I admired the overall thrust of Metzenbaum’s work, yet I couldn’t convince myself that what was happening to the homeowners was right or just. Nor was I willing to try. I managed to tamp down the dissonant voices in my head by concluding — not entirely convincingly — that Cuyahoga Valley was an anomaly, an exception to the rule, an administrative agency that ran amuck in this one instance. Most of the time, park developers are the good guys; most of the time, complaining homeowners are selfishly unmotivated by the common good.

Meanwhile, the Park Service proceeded to force homeowners to sell their property, in clear violation of the legislation’s intent to keep the culture intact through the use of easements. It turned out the Park Service had no real acquisition plan, other than to move as many people out in the name of preservation. The Park Service spent hundreds of thousands of dollars buying homes they didn’t need, and then proceeded to bulldoze many of them. They destroyed family homesteads that were in the same families for generations, for no real reason. Out of 500 houses, over 425 were taken. Communities were destroyed, churches and schools closed, house boarded up and the tax base eroded by land acquisition overkill.

Natalie and Bob Valcanoff ran a flower shop for close to three decades. They were told to sell whether they liked it or not. Upon refusing, the Park Service said that if the Valcanoffs didn’t accept their offer they would face condemnation. “Ninety days is not nearly enough time to move a business that’s been here for twenty-eight years.” Park superintendent Bill Birdsell was unapologetic.

“The flower shop itself is a commercial operation that was incompatible with the park being developed as a public use so that had to go. The house will eventually be disposed of as will the flower shop. We will try to find adaptive use of any of the structures we can, if there’s an administrative need. But the size of that shop and its present location we don’t project any use for that at the present time. It’s simply be obliterated and become public use area along the river there.”

“Incompatible…disposed of…obliterated” — these images call to mind the legendary American officer had said of a Vietnamese village that it was “necessary to destroy it in order to save it." If Mi Lai was an atrocity, so was Everett.

I resigned from Metzenbaum’s staff not because of Cuyahoga Valley but because I was exhausted from politics and had my sights set on journalism. After relocating in the San Francisco Bay area, there were moments when I felt like I was in a witness relocation program — I was that glad to be free of the constant turmoil of things political.

The war against American homeowners is far from won. Under the Supreme Court’s 2005 Kelo v. New London decision, “all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded,” in the words of dissenting Justice Sandra Day O’Connor.

Susette Kelo had long dreamed of owning a home that looked out over the water. In 1997, she purchased and lovingly restored her small pink house where the Thames River meets the Long Island Sound, and has enjoyed the magnificent view from its windows ever since. Just down the street, the Dery family has lived in Fort Trumbull since 1895; Matt Dery’s parents — his next-door neighbors — purchased their house during the McKinley administration. The richness and vitality of their neighborhood mirrors the American dream of home ownership. Thanks to the City of New London, that dream is turning that dream into a nightmare.

In 1998, pharmaceutical corporation Pfizer constructed a plant next to Fort Trumbull and the City resolved that someone else could make better use of the land than the people of Fort Trumbull. So the City gave over its power of eminent domain — the ability to take private property for public use — to the New London Development Corporation (NLDC), a private body, to acquire the entire neighborhood for private development. As the Fort Trumbull neighbors discovered, when private entities exert government’s awesome power of eminent domain and can rationalize taking property with the nebulous claim of “economic development,” all homeowners are in trouble.

Public response to the 5-4 Kelo ruling has been widespread and nearly unanimous in its outrage. Homes and churches, small businesses and open pieces of land can now be taken by the government only to be handed over to private developers for their private gain. Before Kelo — a ruling supported by the Court’s most liberal members — government could only take private property for what was considered in fact "the common good," such as roads, utilities, hospitals, or military bases. Now those limits are gone. Large corporations and developers with deep pockets can join with local governments to come up with all kinds of plans to take away property. This decision is an invitation to catastrophe because every business generates more taxes than a home and every big business generates more taxes than a small one.

The U.S. Supreme Court may have ruled but the fight isn’t over. Kelo left open the door for states to enact laws that specifically restrict seizing property in the name of private economic development. A movement to block the ruling’s effects is underway in several states to ensure so that all small business owners and homeowners can regain their rights to private property.

“Now is the time for Americans to demand their state and local lawmakers protect homes and small businesses from eminent domain for private profit,” says Dana Berliner, a senior attorney with the Institute for Justice, a Virginia-based organization that litigates to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties and to restore constitutional limits on the power of government. “Rarely does a single issue generate such universal outrage. Americans understand that the U.S. Supreme Court has declared open season on home and small business owners.”

Over 40 state legislatures have enacted or will soon consider eminent domain reform in the wake of Kelo. Texas and Alabama both enacted laws aimed at preventing exactly what Kelo allowed. Ohio established a one-year eminent domain moratorium as it studies the issue. Michigan, whose own state Supreme Court rejected Kelo-style takings in 2004, referred a measure to its voters to affirm the case law. And the U.S. Congress is on the edge of restricting federal economic funds from being used by eminent domain abusers.

“What’s been passed so far are good first steps, but they are only first steps and much more needs to be done if small property owners are to be protected,” says Berliner. “Nearly every state needs not only to restrict the use of eminent domain for private commercial development, but also to reform their blight laws to stop bogus blight declarations. Unless both of those reforms are done, and done in the right way, this abuse will continue.”

More than a year after the Supreme Court decision, Susette Kelo’s house still stands but her home is a member of an endangered species. The Cuyahoga Valley residents whose homes were condemned and destroyed can’t say the same. “A park for all people, for all time” reflects the classic socialist assumption that “community” and “collective” are synonymous. Healthy communities rely upon and reinforce healthy individuals. By definition, a collective reinforces its prerogatives by marginalizing individuals. Not surprisingly, Cuyahoga Valley property owners were routinely condemned as “selfish” for not wanting to give up their homes.

Don't get me wrong — I'm all in favor of sharing, because by definition sharing is voluntary. When sharing becomes compulsory, the correct word is "theft." No less so when it's done by people intent on taking what's yours in order to finish building Utopia.

“These private (environmental activist) groups have learned to make a business out of dismantling rural American communities,” says Big Sur, California local-rights activist Michael Caplin, who helped fight legislation that would have likely turned Big Sur into another Cuyahoga Valley. “There is no collective,” Caplin says. “There are only individuals. Sacrifice individuals for a collective ideal, and you sacrifice the collective, one individual at a time. You can go out and shake the hands of individuals, but you can't shake the hand of the collective. It ain't there. It's a dream. The best way to make the collective ideal come true is to sacrifice no one, treat each individual fairly. Then the dream can come true one person at a time.”

(Adapted from a chapter by the same name in my book Leaving the Left)