| You should really read Kelo v. New London before slamming it or calling it “wrong.” It might be enlightening to understand what the petitioners in the case were arguing. Saying that the ruling will allow government to “steal” property and sell it to the highest bidder is nothing but hyperbole. The petitioners never claimed that the city was stealing their property. Everyone agrees that New London can “take” the property only after providing just compensation. The petitioners in the case never challenged that the compensation was unjust. Rather, their challenge focused on whether economic development or redevelopment is a valid public use.
Even the dissenting opinion (written by outgoing Justice O’Connor) states: “To save their homes, petitioners sued New London and the NLDC, to whom New London has delegated eminent domain power. Petitioners maintain that the Fifth Amendment prohibits the NLDC from condemning their properties for the sake of an economic development plan. Petitioners are not holdouts; they do not seek increased compensation, and none is opposed to new development in the area. Theirs is an objection in principle: They claim that the NLDC’s proposed use for their confiscated property is not a “public” one for purposes of the Fifth Amendment.” (emphasis added)
The measure of whether a taking meets the Public Use Clause of the U.S. Constitution has, for over 50 years, been: is the taking “rationally related to a conceivable public purpose?” It is important for you to understand that only one of the dissenting justices (Thomas) objects to this long established threshold. The other dissenting justices (Scalia, Rehnquist, and O’Connor), do not challenge this measure. The argument for 8 of the 9 justices was about what constitutes a “public purpose.”
The City of New London had taken years and deliberated, planned, and studied alternatives for revitalizing a depressed section of town. For the Supreme Court to rule differently in this case would require the determination that economic rejuvenation or promotion of economic development is not a function of government and has no public function or purpose. O’Connor, writing for Scalia and Rehnquist, argued that the existing use of the land must in some way be creating a public harm for the redevelopment to constitute a public purpose.
As to your assertion that government can now take property so that a Wal-Mart can be built, you should read Justice Kennedy’s concurring opinion that states, in part, that courts “should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits...” I would really be interested in hearing of such taking examples that you cite in your column that “began happening within hours of the Supreme Court’s decision.”
As with most split Supreme Court decisions I find compelling arguments in both concurring and dissenting opinions. This case is no exception. But it is irritating to see columnists editorialize on the court when it is clear that they have not read the opinions and have little or no understanding of the decision or its consequences. It isn’t clear exactly what you find “wrong” in the decision, but the decision certainly does not permit government “stealing” private property.
Tom Ostrom
Seattle
(Editor’s Note: We have to respectfully disagree with Mr. Ostrom on this issue. Actions taken by cities all across the country make it clear that the ruling is being interpreted just as we feared. To answer Mr. Ostrom’s question, the examples cited as happening “within hours” are:
Freeport, Texas, Within 24 hours officials began legal filings to seize small businesses to make way for an $8 million private boat marina.
Lake Zurich, Ill., Five property owners facing condemnation for private development had asked Lake Zurich officials to hold off until the Kelo decision. The Chicago Tribune reported that City officials began moving to condemn within hours after the decision was announced.
Boston, Mass. Within 48 hours after the Kelo decision, Boston City Council President Michael Flaherty called on the mayor of Boston to seize South Boston waterfront property from unwilling sellers for a private development project. “Eminent domain is one tool that the city can use,” Flaherty told the Boston Globe.
Other examples include:
Arnold, Mo., “Arnold Mayor Mark Powell applauded the decision,” reported the St. Louis Post-Dispatch. The City of Arnold wants to raze 30 homes and 15 small businesses, including the Arnold VFW, for a Lowe’s Home Improvement store and a strip mall — a $55 million project for which developer THF Realty will receive $21 million in tax-increment financing. Powell said that for “cash-strapped” cities like Arnold, enticing commercial development is just as important as other public improvements.
Baltimore, Md. (West Side), The City of Baltimore is moving to acquire shops on the city’s west side for private development. Ronald M. Kreitner, executive director of Westside Renaissance, Inc., a private organization coordinating the project with the city’s development corporation, told the Baltimore Sun, “If there was any hesitation because of the Supreme Court case, any question is removed, and we should expect to see things proceeding in a timely fashion.”
Baltimore, Md. (East Side), Baltimore’s redevelopment agency, the Baltimore Development Corp., is exercising eminent domain to acquire more than 2,000 properties in East Baltimore for a biotech park and new residences. BDC Executive Vice President Andrew B. Frank told the Daily Record the Kelo decision “is very good news. It means many of the projects on which we’ve been working for the last several years can continue.”
Newark, N.J., Newark officials want to raze 14 downtown acres in the Mulberry Street area to build 2,000 upscale condo units and retail space. The Municipal Council voted against the plan in 2003, but then reversed its decision eight months later following re-election campaigns in which developers donated thousands of dollars. Officials told the Associated Press that the Mulberry Street project could have been killed if the U.S. Supreme Court had sided with the homeowners in Kelo.
Lodi, N.J., Save Our Homes, a coalition of 200 residents in a Lodi trailer park targeted by the City for private retail development and a senior-living community, went to court on July 18 to try to prevent a private developer from taking their homes. Lodi Mayor Gary Paparozzi called the Kelo ruling a “shot in the arm” for the town. He told the Bergen County Record, “The trailer park is like a poster child for redevelopment. That’s the best-case scenario for using eminent domain.”
Dania, Fla., The South Florida Sun-Sentinel reports that Dania Beach City Manager Ivan Pato “expressed joy” over the ruling in Kelo. Dania plans to buy a block of properties for a private development project, and Pato said the city would use eminent domain to oust unwilling sellers. “Unless we expand the city’s tax base… our residents are facing rising taxes on their property,” Pato said. “Redevelopment is the only way we will be able to make ends meet.”
Fort Lauderdale, Hollywood, and Miramar, Fla. (Ft. Lauderdale and Hollywood border Dania, (cited above) on the north and south respectively. Miramar borders Hollywood on the west), Broward County officials cleared the way for new condo and retail development in three cities. Hollywood residents in the targeted area fear their homes may now be taken for economic development following the Kelo decision. Mayor Mara Giulianti said the City would use eminent domain on a “case-by-case basis” to remove homeowners unwilling to sell.
Memphis, Tenn., The Riverfront Development Corp. is planning a massive, 5-mile development effort, including the use of eminent domain to claim a four-block section from the current owners for a mixed-use development. “[Kelo] definitely gives the city more tools in its tool box for dealing with the legal issues surrounding that piece of property,” RDC president Benny Lendermon told the Commercial Appeal.
West Allis, Wisc., West Allis officials want to “revitalize” the West Allis Towne Center, a shopping mall. If the Supreme Court had ruled in favor of the homeowners in Kelo, officials may not have been able to use eminent domain to claim the mall, West Allis development director John Stibal told the Milwaukee Journal Sentinel.
Cleveland, Ohio, Developer Scott Wolstein has planned a $225 million residential and retail development in the Flats district. Wolstein has most of the property he needs, but is pleased that Kelo cleared the way for the City to acquire land from any unwilling sellers. “If eminent domain is ‘necessary,’ he told the Cleveland Plain Dealer, “we think this makes it clear that there won’t be any legal impediments.” Previously, city leaders publicly supported Wolstein’s call for eminent domain.
According to Representative Derek Kilmer (D-Gig Harbor), “The Washington State Constitution is already more restrictive than the US Constitution on the use of eminent domain. Throughout the Kelo decision, the court is extremely deferential to the states, arguing very clearly that states, in their constitutions or statutes, may restrict or expand the circumstances in which a taking is permitted.”
The Washington State Constitution is more restrictive that the US Constitution on eminent domain. In Article 1, Section 16 it states:
“Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic or sanitary proposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefore be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public: Provided, That the taking of private property by the state for land reclamation and settlement purposes is hereby declared to be for public use.”) . |
