Cities Consider Using Eminent Domain For Unholy Property Seizures

Forbes

2 days ago

A person takes a picture of the childhood home of the new Pope Leo XIV in Dolton, Illinois, (Photo ... More by KAMIL KRZACZYNSKI/AFP via Getty Images)
Robert Prevost grew up in a modest home in the south Chicago suburb of Dolton, Illinois. Recently, a realty company purchased that old home, fixed it up, and put it up for sale. Then a few weeks ago, Robert Prevost became Pope Leo XIV.
Now that modest home is in demand. The house is supposed to be auctioned off, with bidding starting at $250,000. How much of a premium will people pay for the childhood home of a Pope? Ten percent? Twenty? Nobody knows because this hasn't happened before—we can't make a guess based on past sales of 'childhood Pope homes.'
And we may never find out. Dolton officials are threatening to use eminent domain to force a sale so the home can become a publicly accessible historic site.
But while taking the home for a public use meets the constitution's requirements to take property, the price the city ends up paying could be less than divine. When the government takes property through eminent domain, the constitution says it must pay 'just compensation' for the property, which courts say is whatever price the property would fetch on the open market. But figuring out what that price is can be tricky, and the government often stiffs property owners when it can get away with it. ProPublica had a series of articles several years ago showing how the federal government paid very different prices for property depending on whether owners could afford attorneys.
That's where the planned auction would have been helpful. After all, the best evidence of how big a 'Pope premium' the house commands on the open market would be an auction on the open market. And that may well be why the city moved so quickly: In May, city officials darkly warned the current owner to make sure bidders knew 'their 'purchase' may be only temporary since the Village intends to begin the eminent domain process very shortly.' If the city can suppress bids at the auction, it leaves itself the option of arguing that the real value of the property is what the home was on sale for before the Pope's elevation: $199,900. It could even argue it should be lower than that.
The Pope himself has been quite busy and hasn't commented specifically on what should happen with his old family home, but Christian Britschgi writing for Reason noted that his first included the line: "[Saint] Peter must shepherd the flock without ever yielding to the temptation to be an autocrat.'
The actual 'fair market' price for a Pope's childhood home may be high or it may be low, but Dolton shouldn't be afraid of the truth. And it shouldn't be using public power to try to stop the current owners' efforts to find out exactly what their property is worth in the real world.
Meanwhile, a city in New Jersey is considering another unholy use of eminent domain, except here it is directed squarely at a church.
In Toms River, the Christ Episcopal Church wants to open a small homeless shelter on its property. But the town has a different plan for the church's property: pickleball courts and a skate park.
Christ Episcopal hosts a number of community programs, including an affordable housing nonprofit. That nonprofit recently submitted plans to the zoning board for a 17-bed overnight shelter on the church property. Like many areas across America, rising home prices have contributed to rising homelessness across New Jersey. One group estimates that the number of homeless residents in the region has doubled in recent years.
But for the mayor of Toms River, a new park complex along the city's eponymous river is a priority. He said the church's property is, 'a great opportunity for parking, for recreation.' Broader plans for the area include taking nearby waterfront property to build a tiki bar and jet ski rentals.
The church found out about the effort to seize its property a mere 24 hours before the city council first considered a measure. It passed by a 4-3 vote in a contentious meeting where council members yelled at each other. A second approval may come this week.
That the vote to take the property came just three weeks before the zoning board considered the application for the shelter is far too convenient. The Fifth Amendment allows government to take property for public use and parks usually fit that definition. But the town doesn't want a park so much as it doesn't want a homeless shelter.
Whether or not this kind of bad faith use of eminent domain is constitutional is a somewhat open question. For instance, in nearby Connecticut the state supreme court rejected an attempt to stop an affordable housing development with sham playing fields. Massachusetts, Georgia, and Rhode Island similarly prohibit these so-called pre-textual takings.
Last fall, the Supreme Court almost took up the case of a Long Island hardware store chain that lost its property to a town for a 'passive park' (the town had no plan to develop the land). Justices Thomas, Gorsuch, and Alito said they would have granted the case but four votes are needed to achieve Supreme Court review.
Pretextual takings are an incredible threat to private property. As long as the government is willing to pay the 'fair market' price practically any property can be seized. That market price doesn't include whatever an owner might spend in court trying to keep their property.
Challenging even the most outlandish use of eminent domain could mean coming out the other end of the process without a home or business and poorer for it. The Asbury Park Press speculated that the New Jersey episcopal diocese's poor financial situation may be a consideration in whether it negotiates or resists. For now though, the church has indicated it will fight and it has support from other area houses of worship.
The mayor has talked about the need to 'balance the hardships' of a community without a park and speculated that the church congregants could simply 'drive to a different location every Sunday.' This is a grim view of governing that is fundamentally at odds with America's traditions of property and religious rights.
Christ Episcopal has been in Toms River since 1865 and it wants to use its property to fulfill its religious mission to care for the poor at no expense to the town. The mayor wants to provide convenient recreation at cost to the taxpayers.
The U.S. Constitution gave government the power of eminent domain but courts shouldn't merely roll over whenever government presents a plan to take private property. The Fifth Amendment also says that no one should be deprived of their property without due process of law. When the government presents an unholy use of eminent domain, judges should consider all the facts and uphold justice.