High court should limit eminent domain: Rocky Mountain News (Denver CO), 2/25/05

New London residents ask to block forced sale

The attorney for New London, Conn., who argued the city's eminent domain case before the U.S. Supreme Court Tuesday, has said "I don't think there's a more important case on their docket this year." Neither do we; what's at stake is whether the concept of private property has any remaining constitutional meaning at all.

Unfortunately, New London is arguing that it doesn't. The city claims the authority to take people's homes to develop a new office park, adjacent to a Pfizer research facility, along with related projects such as a hotel, a riverwalk, and office space. New London's city council hopes the complex will generate new jobs and produce higher tax revenues it can use to provide public services.

The constitutional question is not whether government can wield eminent domain to take private property for public use. Of course it can, and the U.S. Constitution explicitly provides for it in the Fifth Amendment: "nor shall private property be taken for public use, without just compensation."

But "public use" was once limited to roads, for example, or land for government buildings. Or, by reasonable extension, other kinds of infrastructure that need contiguous property even if they happen to be operated by private entities - railroads, for example, or pipelines.

However, the scope of condemnation has been stealthily and steadily expanding to allow the taking of private property for the benefit of other private parties, on the grounds that there will be some incidental public benefit. Urban renewal, for instance; courts have upheld condemnation for the purposes of reclaiming blighted areas. Or pure economic development, as in the case of New London.

But under that last rubric, no property is safe. The city of Arvada tried to condemn part of a privately owned lake - an amenity, not a blight - to accommodate a Wal-Mart, arguing that the lake brought in little or no sales tax while the Wal-Mart could generate millions of dollars annually. The state Supreme Court ruled unanimously last year that the city could not act without a hearing on whether the area was blighted. The state legislature passed a measure that put broad limits on a city's right to condemn land for urban renewal or open space.

The New London homeowners are merely fighting to keep their cozy Victorian houses with riverfront views. If the high court rules in favor of the city, landowners will find themselves in a country where "the government can take somebody's land simply under the prospect of getting more tax dollars out of the new use," Scott Bullock of the Institute for Justice, which is representing the homeowners, told National Public Radio.

Charming tiny bungalows fronting Wash Park? Yes, they're pricey now, but they don't bring in nearly as much property tax revenue as high-rise luxury condominiums would. Condemn them, and tear them down. Why shouldn't Downing Street look like Central Park West?

We don't mean to suggest Denver would ever commit such an act. But if New London is allowed to get away with its land grab, there will be no stopping other greedy cities from following suit. And of greedy cities and unprincipled officials, there has regrettably never been a shortage.

Rocky Mountain News: www.rockymountainnews.com