10.0 EDSR 02-13-2006 - Laserfiche WebLink

Home Browse Search

The reaction to the U. S. Supreme Court's ruling in Kelo v. City of New London has been loud and furious. T{ze backlash is rife with misinformation. What follows is a summary of the key points that should inform the continuing debate over eminent domain. By Tiruotky J. Dow{inR .S. Scn. James Scnsenbrcnncr denounced the ruling as [he "Deed Scott decision of the 21st century." Editorials and blogo- sphere postings proclaim Chat every home is now at risk of being condemned to make way for a Wal-Mar[. Kelo even made the late-night talk shows, with Jay Leno quipping that when Justice Sandra Day O'Connor announced her retirement, "She didn't really want to resign. She just wants to make sure she's home so no one can seize her hous'e." The Wall Street Journal denounced the mling as judicial legislation, even though the court upheld [he city's legislative decision [o condemm the land. Others have reported that Kelo utassively expands government power, eveu though the court applied long- standing precedent and an eminently natural reading of [he Constitution. This article explores how best to think about Kelo once the initial shock- wave subsides.The court invited states and localities [o consider carefidly the benefits and burdens of using enunen[ domun for economic development, but these deliberations should be based on facts, not emotion and ideology Follow- ing is a summary o£[he key points that should inform the continuing debate over enrinen[ domain. Kelo's meaning and effect The first question to ask in deciding how to respond to Kelo is whedaee the ruling breaks new ground in holding that econotrtic development is a "public use" under the takings clause of the Fifth Amendment [hat justifies the use of ennnent domain to condemm private peoperry.Thc answer is plainly no, not- withstanding the histrionic headlines to the conRary. For many decades, the U.S. Supreme Court has held chat the scope of public use is coextensive with the police powee, and that courts should defer to legisla- tive determinations' of public us'e.These dedsions spedfically rejected [he argu- ment that private benefits generated by a condemnation render it constitu- tionally suspect. For example, in Berman v. Parker (1954), the roue[ unanimously upheld the condemnation of a profitable deparmaent store as part of an urban redevelopment program to eliminate blight, ntling [hat where a government objective is legitimate,"the right to realize it through the exercise o£ emi- nent domain is dear° In Hawaii Housing Authority v. Midk~(1984), the court unanimously reaffirmed that public use is "co[ernfinous" with the police power. Just two years ago, the court reaffirmed that government officials may condemn property for any reason that wouldjus- ti£y exercising any other governmental power.These repeated rulings are not fact-based, but rather driven by a com- mon rationale recognizing that the concept of public use is as inclusive as the police power. Older cases, too, consistently approved the use of etninen[ domain to foster economic development.The Kelo court reviewed rulings from the nineteenth century upholding eminent domain to assist private farnvs, mining interests, private mills, powee-producing dams, and other private enterprises where such activity advanced the public good by promoting economic growth. Kelo actually is mote msuictive than die court's prior rulings because it includes limiting language not con- tained in earlier precedents.The Kelo utajoriry emphasized that New London is in economic distcess.And it noted that ac the time of the condemnation decision, New London had not chosen a private developer, thereby reducing the risk that [he condemnations were for the benefit ofprivatc interests. Kelo also elevates the importance of compre- hensive planning by emphasizing that there nnght be a different result where condemnatons for economic develop- ment take place "outside the confines of an integrated development plan" It is certainly not the case that every home is now at risk of being condenmed to make way For a Wal-Mart or other Cax-generating enterprises. Kelo makes crystal clear that condenma[imts moti- vated purely by revenue enhancement should be viewed by courts with suspi- don.And state and local laws, policies, and practices remain in effect to pro- vide additional protections to property owners. New London's dilemma The public benefit that New London seeks [o achieve has been overshadowed by the rympathetic landowners in Fort M irv Nrsorn Ctr~rs Oc~roeva 2005 j Understanding the Ndo Decision