The State of Eminent Domain in Puerto Rico

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A social crisis has been brewing in previous years throughout the communities of Puerto Rico. Prominent mayors have been utilizing their cities’ eminent domain powers to displace low-income communities in favor of high income condominiums, gated suburbs, shopping centers, and other economic development projects. So subtle and decentralized the phenomena, Puerto Ricans have yet to coin a term or local equivalent for the English “gentrification”. With no checks and balances, mayors are having a free-for-all, erasing entire blocks of communities off of the map for projects that will ultimately end up in the hands of private investors. These mayors have used their state powers to act as real estate agents and holding companies for private interests. Nevertheless, communities are fighting back and are beginning to pool their resources to mount a massive defense.

unnamedThe product of said resistance is Bill 2321, an aggressive proposal that hopes to re-haul and modernize Puerto Rico’s outdated Forced Expropriations Law. Among the amendments proposed are: allowing citizens to question the alleged public utility in courts (similar to Alabama, Colorado, Nevada, and Washington); stricter standards for public utility (California, Connecticut, Rhode Island, and West Virginia); increased transparency (Rhode Island, Utah, and Washington); and a new and innovative mechanism of community participation in cases where eminent domain will be exercised for private economic development projects. Said Bill is the product of numerous meetings and assemblies among community leaders from Loíza, San Juan, Guaynabo, Salinas, Canovanas, Cayey, and Aguas Buenas. Since then, additional communities and leaders from Carolina and Caguas have joined in. The University of Puerto Rico’s Law School Pro Bono program has provided technical assistance during the entire process.

Unfortunately, though there exists a number of current legal resources and tools, in practice it has been an uphill battle for communities to invoke them effectively. For example, Law 232, approved in 2004, requires a community referendum for those city takings carried out in any of Puerto Rico’s 742 “Special Communities”, designated so under the government program of the same name. Said Communities include most of Puerto Rico’s low income neighborhoods, parcelas, barriadas, and shanties. Nevertheless, one 2010 study by Amnesty International states that there are almost a dozen of these Communities under expropriation, despite said protection. It was not until December of last year that a court for the first time upheld Law 232, and froze Guaynabo Mayor Hector O’Neill’s eminent domain frenzy in a community ironically named “Vietnam”. O’Neill has already snatched half of the neighborhood’s housing inventory for a planned luxurious waterfront project.

The reality is that Puerto Rico’s Forced Expropriation Law is flawed and archaically outdated. Approved in 1903 and stitched together from even older laws, the procedure for the state to exercise eminent domain has changed very little since its approval. In essence, the only thing that a municipality or a government agency must do is deposit with the court what it intends is the just compensation, and said property automatically becomes that of the local or state government. In some cases where the occupants of the property are not the titleholders (which is more often than not the case in low-income, closely-knit communities where homes have passed from one generation to another without the proper legal documentation), residents find out about the expropriation when the government comes knocking at their door ready to knock down their building. States such as Connecticut, Louisiana, Maine, Michigan, and North Dakota have outright prohibited tax-revenue-justified eminent domain. Similarly, 41 States have prohibited or restricted the taking of property for economic and private development uses.

To add fuel to the fire, quite a number of bills have been introduced in the state legislature in previous years that attempt to further erode the few protections enjoyed by Puerto Rico’s communities. For example, Senate Bill 1575 and House Bill 702 filed by Senator Roberto Arango and Representative Jorge Navarro, respectively, attempted to severely debilitate Law 232. House Bill 911, authored by a bipartisan hodgepodge of politicos, sought to do the same, though was snuck almost secretly through the House with no notice to the public. Similarly, House Resolutions 10, 13, and 65 filed by Representatives Navarro and Carmelo Ríos explicitly singled out specific communities, attempting to hand over a blank check to O’Neill for his development plans. Fortunately, these bills have failed in the face of last-minute community pressure.

Guaynabo’s Mayor O’Neill is also challenging Law 232 in courts via two separate court cases. Though his legal arguments are flabby, Puerto Rico’s highly-politicized Supreme Court is aligned with O’Neill’s New Progressive Party. O’Neill seems to play said card, hiring as the city’s attorney a former Supreme Court Judge. Puerto Rico’s Mayors Association and Federation are surely to oppose Bill 2321, much like they have opposed any project in recent years that has attempted to limit their eminent domain powers. This is complicated by the fact that the Federation of New Progressive Party Mayors is presided by Guaynabo’s O’Neill, and the Association of Popular Democratic Party Mayors by Rolando Ortíz – Mayor of Cayey and another fervent expropriator.

Despite the hype and hoorah over city autonomy, it was only in 1992 that cities were permitted by the state legislature to exercise direct eminent domain powers. As Vietnam’s recent court case victory has proven, many mayors have abused this power and have gone unchecked for years by supervising agencies and courts. Nevertheless, communities are gearing up and preparing for battle. The mere fact that Bill 2321 has been filed and will soon reach public hearings is a milestone. Now it’s a matter of seeing whether or not state legislators will favor community claims over the Mayor-controlled partisan machinery.

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Luis Gallardo Rivera, M.P.A., J.D. is a legislator for the Municipality of Aguas Buenas in Puerto Rico. He is also a member of the Board of Directors for the Association of Municipal Legislators of Puerto Rico and teaches courses in public administration for the University of Phoenix. @LuisGallardoPR

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The views and opinions expressed are solely those of the author and should not be understood to be shared by La Respuesta magazine. We encourage dialogue, debate, and learning in order to forge stronger, healthier Boricua communities and to strengthen alliances across social difference. 

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