Private land vs. public control: The Philadelphia (PA) Inquirer, 2/23/05

Phila. area is watching as justices weigh Conn. eminent-domain case

By Stephen Henderson

The Supreme Court yesterday appeared sympathetic toward a group of New London, Conn., homeowners fighting to keep their land, but the justices seemed equally skeptical of their own power to keep the city from seizing the property to create an upscale development.

It is the first significant case on eminent domain, the power of the government to condemn property for redevelopment, to reach the high court in years.

The case is being closely watched in the Philadelphia area. On Monday, protesters gathered in Ardmore in Montgomery County and Westville and Haddon Township in South Jersey to oppose plans to use eminent domain to seize private property and then develop condominiums, shopping centers or other projects.

The justices fired relentless questions at a lawyer representing the New London residents about why he thought the court should be involved in the eminent-domain dispute and how he would have them distinguish between proper and improper property seizures.

But they also questioned the city's position that it could use eminent domain to condemn any property to have it developed into something that produces more tax dollars or creates more jobs.

"Say you have a Motel 6, and the city wants to turn it into a Ritz-Carlton," Justice Sandra Day O'Connor said. "Is that sufficient reason?"

Wesley W. Horton, the lawyer representing New London, said it was. As long as the first owner is compensated, and the city determines there is a public benefit in upgrading the use of the land, the Constitution's protections against improper seizures do not apply, he said.

Scott Bullock, a lawyer with the Institute for Justice, which is representing the New London residents, said Horton's standard could threaten all private property owners.

"Every home or church could be replaced by a Costco, a shopping mall or private building that would produce more tax dollars," Bullock said. "This is about limiting eminent domain to public use."

Over the years, the Supreme Court has deferred to the decision-making of elected state and local officials.

The court said in 1954 that it was legal for urban renewal to encompass non-blighted commercial buildings in a blighted neighborhood. In 1984, the court upheld a Hawaii law that broke the grip of large landowners, with property being taken and then resold to others.

The New London residents say taking property from one private owner and giving it to another who will pay more taxes is not covered under the public-use requirement in the Fifth Amendment.

New London, which is backed by many other cities, counters by saying economic development is a legitimate public purpose. New London, a town of less than 26,000, once was a center of the whaling industry and later became a manufacturing hub.

If the court sides with the Connecticut residents, it would cast doubt over projects around the country involving land for waterfront entertainment districts, high-rise office buildings, big-box stores, and even baseball stadiums.

Justice Antonin Scalia seemed more moved yesterday by the sense of impending loss by the homeowners. Even though the New London residents will be compensated for their property, "what this lady wants is not money," Scalia said of Susette Kelo, who brought the suit against New London. "It's her home."

Hers is an "objection in principle," Scalia said.

Other justices struggled to define how the court could draw lines between what was or was not for the public benefit and which kinds of developments could justify property seizures.

O'Connor admitted that the court's prior decisions on this issue left little room for "second-guessing" the power of eminent domain.

"I guess I'm not sure what role there is for us here," she said.

Chief Justice William H. Rehnquist, who is battling thyroid cancer, did not attend the arguments in the case, Susette Kelo v. City of New London and New London Development Corp. Justice John Paul Stevens was out of town and missed the day's arguments.

The Philadelphia Inquirer: www.philly.com