Rail yard expansion in Englewood raises questions of eminent domain’s scope

Joyce Edwards’ family was forced to move from their Wells Street home to make way for the construction of the Dan Ryan Expressway in the late 1950s. Edwards now will have to leave her home in Chicago’s Englewood neighborhood to make way for another infrastructure project — this time, a rail yard expansion.

Norfolk Southern is using its eminent domain power to take Edwards’ and others’ homes in this predominantly African-American community on the city’s South Side. Most of her neighbors were bought out by the railroad over the last few years. Edwards, who has lived in her home for 52 years, is among the last holdouts against the $285 million rail yard expansion.

The Virginia-based company has filed condemnation proceedings against her and two other residents, claiming the project is needed to alleviate the city’s notorious freight rail congestion. Norfolk Southern has already purchased and razed dozens of homes in a 20-block area to expand its 200-acre freight yard from 47th Street pass Garfield Boulevard to 61st Street. It needs Edwards’ home to do that.

Eminent domain is typically associated with government entities, not private companies such as railroads. But under state laws, railroads and utility companies can invoke the authority for projects deemed for public use. In 2005, the U.S. Supreme Court expanded the scope of public use. In Kelo v. City of New London (Connecticut), the court allowed governments to condemn property and give it to a private party for economic development. Critics say the ruling allows government power to be leveraged for private gain and could hurt the redevelopment of communities of color, which often are seized and razed under the blight provisions of eminent domain.

In Englewood, the definition of public use — that is, who benefits from the rail yard expansion — is at the center of the railroad fight.

Norfolk Southern hasn’t proved that expansion of the rail yard will alleviate freight train congestion, said Steven S. Rogers, who like Edwards is fighting the Fortune 500 firm in court.

“What they are doing is not for public use and public benefit,” he said. “If you are laying some railroad tracks, putting in a highway, I would just have to abide by the realities of the law. But this ain’t that.”

Susan Terpay, a spokesperson for Norfolk Southern, would not discuss the case because it is in court, but she said Chicago’s rail bottleneck has been widely reported in the media.

Chicago is the nation’s largest rail center; six of the seven biggest rail carriers cut through the region, including Norfolk Southern. And the city’s working class and communities of color such as Englewood are close to the tracks and rail yards; residents coexist with the diesel fumes and train noise so they can have an affordable place to live.

Looking from her front porch at the barren lots where friends and neighbors once lived, Edwards knows the inevitable is near. But she is fighting for the railroad to do more than buy her existing home; she wants it to buy outright a new home of her choosing so she won’t have a mortgage. Her parents didn’t have that option when they were forced to move because of the Dan Ryan Expressway.

Edwards’ parents were compensated for the loss of their home, but it wasn’t enough to sustain their new house. The family became homeless, sleeping in the car or living as squatters in an apartment basement when an uncle could sneak them into the building. The ordeal devastated a then-9-year-old Edwards.

“I don’t want them to be like I was, homeless sleeping around in cars and basements,” she said of her children, one of whom has cerebral palsy. “That is what’s important, that I be fairly compensated.”

Communities of color ripe for eminent domain

Norfolk’s property takings in Englewood is unusual, says Ilya Somin, a George Mason University law professor who has written extensively on eminent domain. Public utilities or railroads exercising eminent domain “happen outside of dense urban areas,” Somin said, “and therefore tend to happen in places where they don’t have large minority populations.”

Many of Chicago’s working-class neighborhoods formed in the shadow of steel, manufacturing and other industries, which were served by trains. The Stockyards — the meatpacking district on the South Side — is a familiar example. Ethnic whites lived nearby to be close to jobs. As blacks migrated to the North and sought manufacturing work, whites left some of the areas and were replaced by African-Americans.

“Traditionally, those structures — whether it’s tracks, whether it’s yards, whether it’s above ground or on the ground — have been ways to demarcate where people live in the city … where racial segregation is still quite deep,” said Joy Bivins, a curator with the Chicago History Museum. “Knowing where those things are became a way to mark where people live.”

Areas like Englewood have also lost population over time — and that could affect where companies choose to expand. Bivins said companies are not going into neighborhoods where they have to “clear out everybody.”

“The amount of people that once were there is not the same,” said Bivins, who grew up in West Englewood. “You can drive along certain blocks and many of the homes are abandoned for a variety of reasons. It could be several blocks where it is not a full block of people.”

Railroad’s tactics denounced

Rogers questions whether Norfolk Southern followed a legal process to expand its rail yard, as well as how the company went about acquiring property.

The railroad, he said, was not upfront about its intentions until elected officials urged Norfolk to hold a public meeting. The company began approaching residents individually to buy their homes in 2011, he said.

“Up to that point, they weren’t telling anybody what they were doing,” said Rogers, who was first approached by a representative of the railroad about purchasing his grandparents’ home in 2012. His grandparents bought the house in 1952 and were the first blacks on the block.

Concerned, residents formed the Englewood Railway Coalition to represent homeowners’ interest. Rogers, a business professor at Harvard University, was selected as its president.

City Hall boosted Norfolk’s land acquisition when it sold 105 vacant lots — totaling about 11 acres — to the rail company for $1.1 million in April 2013.  City Council had to approve the land sale, but it did not have to approve Norfolk Southern’s expansion plans.

To date, the owners of approximately 500 private parcels in the path of expansion have voluntarily sold their properties directly to the railroad, according to city department of planning officials. Rogers said Norfolk capitalized on a depressed housing market to buy the property while playing on residents’ fears about losing their homes to eminent domain for nothing in return.

Compensation to homeowners ran the gamut, Rogers said, from $30,000-$40,000 to $150,000-$425,000. Eventually the coalition dwindled to five from 39 members. (Edwards is not a part of the coalition.)

“A lot of people did pretty well, and justifiably so. These are people, when we first started, who swore they will never sell and they were going to stick with it,” Rogers said. “But they got offers they couldn’t refuse, eventually.”

Dane Tucker lives in the house his father purchased nearly 60 years ago at 66th Street and Parnell Avenue. And while his block is not affected by the rail yard expansion, Tucker has seen entire blocks cleared of structures by Norfolk.

“They were literally tearing down three and four houses on the block. Once you do that, people got scared, especially the seniors [who thought] they were going to be living in isolation,” said Tucker, a retired firefighter. “They put the fear of God in people that they weren’t going to be able to get anything for those houses.”

Property-rights reforms still fall short

As unpopular as the Kelo decision is, it resulted in a greater awareness about the abusive power of eminent domain, as well as a slew of property rights reforms. About 40 states revamped eminent domain laws to provide greater protections for private property owners.

While these reforms are a step in the right direction, legal experts contend some did not go far enough. Illinois and many other states still allow private property to be taken if it has been designated as blighted.

Florida and Ohio have taken a different approach, according to Robert McNamara, senior attorney for the Institute for Justice, which brought the Kelo case to court.

Florida amended its constitution to make Kelo-style takings impossible and cracked down on blight seizures, McNamara said, adding, “Eminent domain in Florida was ended by the state legislature.”

The Ohio State Supreme Court banned using broad blight designations such as cracked sidewalks to grant private condemnation. The court’s ruling gave greater property protections to citizens then the federal law, McNamara said.

Illinois’ attempt to curtail eminent domain use was a mixed bag. A 2005 bill that required public takings only for a “qualified public use” died in a House committee. A year later, the state’s eminent domain law was amended to require a written agreement between the condemning authority and the private developer to develop a blighted area.

The legislative fights over eminent domain have no impact on Edwards’ situation. She wanted to pass on her family home to her children. That won’t happen now. And even if she could stay, she would have to consider her children’s health. Train fumes exacerbate one son’s asthma. The house has become a prison for her other son, who has cerebral palsy. His wheelchair cannot navigate the cracked sidewalks, caused by the demolition of houses.

“I don’t consider this a neighborhood now,” Edwards said. “It is too empty, too sad.”

  • Private property taken for private use is blatantly unconstitutional. Makes perfect sense this would be considered permissable in Illinois.

    • Jason

      Isn’t this a federal issue, not a state issue?

      • One would think. Article says ‘under state laws, railroads and utility companies can invoke the authority for projects deemed for public use.’ Ripe for a SCOTUS strike down, if the right homeowner was victimized.

        • Harvey Kahler

          This is quite different than eminent domain used in TIFs to force out owners for redevelopment with new, and better connected, ones subsidized with public money.

          • Yep, it is different. Kelo has a reckoning with another SCOTUS soon. This Illinois deal is still abhorent to the Constitution though.

    • Harvey Kahler

      A private railroad is a mode of interstate commerce and a component of an interrelated transportation system for the greater good of the nation. Railroads need bigger yards just as highways need grade-separated interchanges instead of intersections for greater capacity and efficiency that can divert some traffic off roads.

      • Government cannot delegate Constitutional Power to private firms. If there’s a ‘greater good’ to be had, the Illinois State Government needs to do it’s job and exercise eminent domain. That way, if they attempt a confiscation the electorate opposes, they can be voted out. No one saw the railway executives on the last ballot.

  • Harvey Kahler

    The issue is not one of blight, but necessity. Relocating hundreds of miles of railroad and its attendant infrastruction and service connections for a relatively small area just isn’t practical.