MORE EMINENT DOMAIN OR VOLUNTARY BUYOUT?

As I drive back and forth to work, sometimes taking the State Street route, I find myself wondering how in the world the curve on State Street between Westbrook Drive and Spy Run will be straightened without removing a number of homes. The curve starts just to the west of Westbrook Drive and straightens out near the BP Station at the corner of Clinton and State.

Here is my question. How is the curve going to be straightened without taking out several homes in the path of the project? The Google Earth view below shows a number of homes in the curve area that sit smack dab in the road of any effort to straighten the curve.

State Street Curve

Eminent domain has been a sore spot with property owners since the early days of our country. The Fifth Amendment contains the “eminent domain” or the “takings” clause.

“nor shall private property be taken for public use, without just compensation.”

Historically, eminent domain was to be used for such public uses as constructing schools, building highways, providing public parks and such other projects that are necessary for the public good. Although the government may exercise such takings under the Fifth Amendment, it must also pay just compensation.

Through the years, the use of eminent domain has been broadened to include takings that benefit private property owners – not just the public.

The Grand Wayne expansion here in Fort Wayne was just such a use. The City used the concept of “blighted” to take several private properties – fast food restaurants and a package liquor store – for the purpose of transferring the properties to the private entity overseeing the Grand Wayne expansion – no public use such as a park, a school, or a highway was involved.

Then in June 2005, the infamous decision of Kelo v. City of New London Connecticut, 545 U.S. 469 (2005) was handed down by the Supreme Court. That decision upheld the taking of private property – homes and businesses – by the City of New London, Connecticut, in order to turn them over to the pharmaceutical giant, Pfizer, for the purpose of economic development in the form of creating jobs and increasing the tax base. Of course, “just” compensation was required.

The decision triggered outrage across the country. Many states immediately established commissions to research and prepare legislation to thwart what was seen as an abuse of the eminent domain power.

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Now, back to the State Street curve. The Google Earth picture and my own photos show the homes located in the path of the project. The City has already approved preliminary engineering work to straighten and expand State Boulevard between Spy Run Avenue and Cass Street for $772,000 with the total project cost to run around $9,000,000.

So, my question remains, will the City fall back on its power of eminent domain or will the home owners be approached to voluntarily sell the properties? I honestly don’t see the curve being straightened without infringing on the private property interests of the home owners.

If eminent domain is used, how is the straightening of a curve to ease traffic flow a public use justification?

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About Charlotte A. Weybright

I own a home in the historical West Central Neighborhood of Fort Wayne, Indiana. I have four grown sons and nine grandchildren - four grandsons and five granddaughters. I love to work on my home, and I enjoy crafts of all types. But, most of all, I enjoy being involved in political and community issues.
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9 Responses to MORE EMINENT DOMAIN OR VOLUNTARY BUYOUT?

  1. Pete says:

    The description in April 10th Journal Gazette article puzzled me. It says, “The city plans to acquire all homes in the area between Eastbrook and Westbrook in the floodplain and turn the area into a park.” There aren’t any homes between Eastbrook and Westbrook, so it wasn’t clear exactly which properties will go.A former property owner on Westbrook said the terms were clear to her, in a proposal to purchase her property. She could decline the offer and keep her property, but she would not be able to keep calling for help with flood control.I wondered if the warning that she’d be on her own in a flood might simply be part of the art of the deal. However, as she considered that her home would be the only one left along that stretch of Westbrook, how the situation affected her property value, and the fact that she worried about flooding every time it rained, she sold her home at a fair price. That stretch along Westbrook is now a grassy flood plain.I can see a rationale for eminent domain there, with the idea of “public use” of the land for flood control, and “public use” of the land for traffic engineering; as compared to the mutation of eminent domain from “public use” to “public good,” whereby it would always be for the public good to stomp small business and property owners for bigger business deals, such as Midtowne Crossing in the early 80’s, and so on.Many years after the fact, the Supreme Court found that GM didn’t do right in stomping out the Poletown community in Detroit. Then there was the notable news story about a homeowner in Atlantic City who wouldn’t cave, frustrating Donald Trump’s plan. And then, finally, the Kelo/New London case. Finally!

  2. Pete:

    The City has two projects going on in that area: the voluntary buyouts on Westbrook and Eastbrook and now the project between Cass Street and Spy Run which includes straightening of the State Street curve as well as the widening of State Street.

    The buyouts in the Eastbrook/Westbrook area were completed to provide additional flood storage and to lessen the City’s floodfighting issues. It doesn’t surprise me that the woman was told not to count on floodfighting help if she didn’t sell.

    If you remember, when we held one of our meetings about Thieme Drive, Dave Ross was asked what would happen if we didn’t want anything done. Someone asked if we would still get floodfighting help, and his response was he didn’t know and we would just have to wait and see. The underlying “threat” being that if we didn’t do what the City wanted, then we might very well find ourselves unprotected. I personally think this kind of coercive attitude and talk to citizens of Fort Wayne is unacceptable.

    But, the State Street curve involves homes that do not flood. While they may be located, technically, in the flood plain (I haven’t checked the GIS maps yet), the water never rises to inundate them. I can’t imagine that those homeowners who are not endangered by flooding would want to sell their homes to be torn down for purposes of straightening a curve. What a waste!

    I noticed the April 10th article mentioned that the City has $3.2 million set aside for acquisitions; however, it didn’t say how the acquisitions would be accomplished. The acquisitions could be either by eminent domain or by voluntary buyout. It looks like that whole area of approximately 25 homes may very well be taken out because the City finds a curve annoying. I suspect there may be an underlying project in store – I find the idea of spending $3.2 million to straighten a curve and add two lanes in the span of two blocks a bit much especially with the City’s finances not the best now that the sources have been cut.

    The idea that the City could use eminent domain to acquire properties to alleviate floodfighting is a concern to me and should be to all of us who live in our “cup” area. If the City finds that eminent domain is acceptable to fight floods, then our homes are in jeopardy. Even though usually we do not suffer the loss that many homes suffer, it does require floodfighting efforts by the City, which costs money.

    Just think, if they bought out our area, they would save that money. And to that proposition I say, “Over my dead body.” I will never sell my home in a voluntary buyout, and should the City try eminent domain, I will fight it in court.

    Eminent domain has its place, obviously, or the Founding Fathers would not have provided for it in the Constitution. But governments have abused eminent domain over the years moving first from the “public use” doctrine to the “blighted” concept to condemn, and finally, to the “economic development” concept to condemn. After the Kelo case, the public had enough and that’s when the states began their efforts to curb government abuse of eminent domain.

  3. J. Q. Taxpayer says:

    What I think you will see is the Clinton St. Bridge over the Spy Run Creek be raised when all is said and done. Currently it is part of the “dam” that holds back the higher levels of water on the creek.

    Had they managed the sotrm water control upstream this entire project would not be needed, with regards to flood issues.

    I think the day will come when they will sadly try to force you out. They will do it by letting your place flood to a point the walls of your basement cave in.

  4. Pete says:

    The news article said that the old bridge over Spy Run Creek will be used while the new one is being built. (Maybe I’ve misread the article. I’m on the go, and don’t have time to look for more information now.) I surmised that property in the path could be acquired through the flood-plain buyout, or eminent domain for the street plan.

    Regarding Thieme Drive, when water was surging up from the street drains, I wondered again why the idea of extending the brick flood walls wouldn’t work. That doesn’t solve seepage problems, but the water never gets as high as those walls.

  5. J.Q.

    Unfortunately, I fear you may be right. I believe this tactic is an unacceptable way for a City to treat its residents. I worry about my basement walls now.

    I do not flood in the sense that the water comes into my home as in other neighborhoods. Our little “cup” area pools the water in such a way that it doesn’t enter the first level of buildings. What does happen though is that the water migrates through the ground from the river. My basement doesn’t even flood. I usually get one or two inches of water, but that is all. It is the pressure from the migrating flow that concerns me.

    In the last flood in February, my west basement wall had a tiny hole where the water was spurting through. This is probably beneficial since it relieves the pressure, although not greatly, at that side of my home.

    I personally believe that we missed the boat when the 1982 Corps study was completed and 9 alternatives were provided. One of those alternatives was a Trier Ditch cutoff in the southeast part of the county. This would have acted as a diversion – either at a 40% or an 80% level depending on which was chosen – of the St. Mary’s River. The river would have been diverted to the northeast to the Maumee.

    The bottom line is that no matter what we do, it will impact other areas. That is why a basin-wide plan is so important rather than a piece-meal plan that has been put in place which primarily deals with Fort Wayne areas. Each City which suffers flooding tends to deal with the issue in its own way.

  6. Pete:

    I believe the city will use the old bridge while the new one is being built. It is a question of where the new bridge will be placed.

    I go back to my concern about acquiring land for convenience sake. The city sees the curve as a bottleneck, thus it has decided to straighten it out. This is not what I would traditionally think of as a “public use.” I am not aware of any statistics that show that the curve is dangerous because of an inordinate number of accidents.

    I realize society and times have changed, but when we start allowing our governments to take land for convenience, then the danger of abuse increases dramatically.

    I checked the county’s GIS website, and the area the city wants lies in a floodplain. If the City is allowed to take this land through eminent domain rather than a voluntary buyout, then any area of the City could be at risk. The City could always find a reason that would benefit traffic, right-of-ways, flood control, etc. What would be the stopping point?

    The City’s plans to straighten the curve cannot be done without going through the homes in that area.

  7. Hey Charlotte,

    Long-time reader here….I was just in Fort Wayne for the past 2 days. Help me understand – why does the City want to straighten out State Street? I mean, I LIKE that it curves. I like that it’s not straight and multi-laned. It’s “charming” and shows personality (seriously – I believe this).

    So – why the need to straighten it?

  8. Hi Kristina:

    To be honest, I don’t know why the City wants to straighten out the curve other than the fact that the City considers it a “bottleneck.” I suppose this slows traffic considerably around that bend, and, God forbid, we might have to drive at the speed limit or take a few extra seconds to get around the curve.

    It makes me sick to think that the huge, old tree at the curve will no doubt need to be destroyed to straighten the curve.

    If the City intends to do voluntary buyouts, it might be a tough sell. I imagine the City will try using eminent domain so it doesn’t have to worry about stubborn owners. But, if the City uses eminent domain, I will be interested to see how it argues that straightening a curve is a “public use” anticipated by the 5th amendment to the Constitution.

  9. Yes, it can be a bottleneck – so a more logical response would be that they route the traffic flow so that it feels natural to take different routes (and not just knock a bunch of houses down and ruin the charm of an older neighborhood).

    But you know – people like to take the easy way out – so I’m not surprised that those in charge haven’t thought of an alternative solution to the bottleneck sigh.

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