By Lauren Alberti

It's fair to say that no one wants government to be able to take their private property. We don't like it, but we tolerate it for roads and other public-use projects. But for economic development, eminent domain is a bitter pill to swallow because people simply do not understand how – and why – government can take private property.

However, denying government totally the opportunity for redevelopment restricts unfairly a community's ability to complete important renewal projects. The eminent domain process is terribly complicated.

The Delaware Association of REALTORS^® has consistently opposed private-property takings in cases of the government taking one person's property in order to provide an economic benefit to another. Despite the notion that progress marches on, enrichment of others at the expense of a disadvantaged property owner cannot be condoned. However distasteful, eminent domain may be necessary in certain limited circumstances.

The association is committed to strong neighborhoods and strong communities for the health and safety of our neighbors, for the preservation of vibrant public schools and for the stability of quality government services. Neighborhoods that are permitted to decay in blight and become slums reduce property values, diminish property tax revenues and reduce the quality of government services, of our public education system and the health of our neighbors. In fact, decaying neighborhoods put the safety of our police and firefighters at risk.

The association believes the community has the right to govern itself through the tools provided in the local land use planning process. Urban renewal projects have existed around the country for decades, if not centuries. A local government aiding in the transition of blighted neighborhoods into thriving, vibrant communities, even using eminent domain as a tool of last resort, is simply necessary for the benefit of all of the citizens of the larger community.

Much has been written lately about Senate Bill 7, which would prohibit government from taking private property by eminent domain. The intention of the legislation is to prohibit developers from profiting at the expense of unsuspecting, unlucky citizens whose property lies in the way of shiny new developments.

The legislation casts a wide net; however, and is so extreme as to cause unintended consequences which will ultimately challenge the ability of our local communities to govern themselves, and to provide safe neighborhoods with strong property values allowing quality services.

Senate Bill 7 exempts DelDOT and DNREC, so government still has the ability to take private property for the public use, such as roads, bridges, utility-transmission lines, contaminated properties and other such uses. I believe many would agree that, while individual property rights must be protected, they must not trump the right of the community to transportation, to utilities and to other public uses, such as parks and open space.

The Delaware Association of REALTORS^® believes Senate Bill 7 goes too far promoting community interests, while not doing nearly enough to protect citizens' property rights.

The association has an alternative to Senate Bill 7 which will bring fairness and consistency to the eminent domain process, and will provide citizens substantial protections when their private property is to be condemned for urban renewal projects. Further, our proposal provides private citizens truly just compensation when their properties are condemned.

The eminent domain process is complicated, and the DAR proposal is no less so. While Senate Bill 7 is generally considered the easy correction, we believe it is impossible to repair a complicated problem easily; and by trying to enact a simple fix to this complicated problem, Senate Bill 7 gives too much scope to eminent domain without adequate safeguards for citizens' rights.

Our proposal, which we view as a compromise, clarifies and narrows the definition of blight to ensure that only property that poses a real risk to public health, safety or welfare can be declared blighted and subject to taking by eminent domain.

Our proposal, which we view as a boost to private property rights, increases substantive and procedural protections for citizens by requiring in-depth land-use planning prior to condemnation, by adding additional requirements to the current four-step redevelopment planning process and by requiring a demonstration of a specific public need for the urban renewal project. We propose a number of steps in the planning and approval process which invite the participation of the community in self-governance.

Our proposal, which we view as a boost to the health and safety of the community, requires the local planning commissions and the city and county councils to hold public hearings on the landuse plan, and further, that each approve the plan by a two-thirds majority, and that the local government make parcel-by-parcel "blight" findings after public notice and public hearings.

Our proposal, which we view as a boost to the legal rights of the community, would provide meaningful opportunities to challenge a proposed condemnation, requiring that the local government engage in "reasonable attempts to negotiate" with property owners prior to initiating a condemnation action, and further providing for judicial review of key decision points by allowing for an appeal of any governmental action taken during the plan approval process. Our proposal goes so far as to eliminate judicial deference to local legislative body findings, requiring that all governmental decisions be supported by substantial evidence, and placing the burden of proof on the government.

Our proposal, which we view as a boost to the economic wellbeing of individual private property owners, provides for truly just compensation, including paying for relocation expenses, paying reasonable litigation expenses when challenging a condemnation action in court, a reasonable percentage of the increase in the value of the property resulting from its inclusion in the proposed renewal area and paying any anticipated lost business revenue resulting from relocation.

While no legislation could ever successfully prohibit the government from seizing private property, Senate Bill 7 does not afford the protections, benefits and just compensation that the Delaware Association of REALTORS^®' proposal does. And while the association does not condone the taking of private property solely for economic development purposes, the association proposal recognizes that the local community must be afforded the opportunity for self-governance, that the local government must be afforded the tools necessary to provide the highest level of services, the greatest quality of opportunity and the strongest community it possibly can, and that private property owners are entitled to the full economic benefit of their properties if they must give way.

Editor's note: Lauren Alberti is president of the The Delaware Association of REALTORS^® and a member of the Sussex County Association of REALTORS^®.