Eminent domain: (University of) Oregon Daily Emerald, 2/24/05

Opinion

By Travis Willse
Matt Dery's home is his castle. He lives next to his parents in the Fort Trumbull neighborhood of New London, Conn., where his family has lived for a century. But Dery and his parents may be on the move, and not because they want to.
The city of New London has invoked its powers of eminent domain, an important constitutional exception to property rights that lets government-affiliated agencies seize property in the interest of the public good, given that they compensate the owners accordingly.

Authorities have traditionally applied the rule to private property in two situations: to install new public works — like schools and highways — or as a first step to revamp and replace "blighted" neighborhoods.

But New London has considered its powers more broadly, and has prepared to kick Dery and his neighbors off their property to make room not for public works, but for a conference center, hotel complex, offices and an aquarium, all to be owned privately. Seven families who own 15 homes were uninterested, and the state tried to condemn the embattled property.

The Supreme Court's 1954 Berman v. Parker decision found that cities can apply eminent domain to raze crime-ridden or decrepit areas, but city officials have only labeled Fort Trumbull a "depressed" neighborhood.

Eminent domain has found its way to the land's highest court again — arguments in the New London case were heard Tuesday — and the case may prove to be one of the year's most important. While the Court sympathized with the plight of the 15 homeowners involved, it regrettably hinted that precedent may not favor them.

The gist of the city's arguments, which held up in the Connecticut Supreme Court, were this: The newly installed businesses and offices would create jobs and cash flow for an economically stagnant town, and that economic benefits certainly satisfy the public use requirement of eminent domain, particularly after swollen tax coffers are spent in the public's interest.

Justice Sandra Day O'Connor asked Wesley Horton, the lawyer representing the city, "So if you took away a Motel 6 and replaced it with a Ritz Carlton. More taxes. That's OK?"

Horton agreed, and Justice Antonin Scalia asked more generally, "So if B pays more than A, that's acceptable?"

Horton assented again. To dispute his argument is more than to reject a slippery slope: It's to protest a fundamental shift in the country's interpretation of property rights. If cities need only to contend that taking and selling land to private developers would produce some economic benefits felt by the public — as there would almost always be — there's only the intervening money (and the risk of residual unpopularity in later elections) to prevent cities from forcefully redistributing land as it sees fit. Individual property rights, particularly in low-income neighborhoods, are left secondary to a dubious and nebulous concept of public good.

Scalia voiced the best summary of the problem: "What this lady (one of the homeowners) wants is not more money. There's no 'public use.' You're just giving one individual's private property to another private individual."

The case has drawn attention outside Connecticut, too: The city of Riviera Beach, Fla., is likewise planning a $1 billion redevelopment project, but would first need to condemn 1,700 homes and apartments. While the city insists it would only apply the powers of eminent domain as a last resort, it is worrisome that it would apply them at all to livable neighborhoods against inhabitants' will.

Eminent domain is one of the most important tools of land (re)development, particularly in cities, but as such a potent tool — and as a potential threat to the spirit of property rights — city governments ought to be more careful than New London when applying it.

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