Supreme Court Expands Power of Eminent Domain: Los Angeles (CA) Times, 6/23/05

By David G. Savage

The Supreme Court gave local governments broad power today to bulldoze homes and other private property to make way for business development, a ruling that could encourage more city-backed plans to replace small stores with big-box retailers.

The 5-4 ruling upheld a plan by officials in a coastal Connecticut town to condemn nine homes of longtime residents that would be replaced with an office complex and a marina.

The dispute between the homeowners and the city officials became a classic test of government power versus individual rights. It pitted a community's hopes for economic rebirth against an individual's right to keep one's home.

Economic development emerged as the clear winner.

The high court's opinion goes further than before in allowing the government to invoke its "eminent domain" and to seize private property from unwilling sellers.

The Constitution says government may take private property "for public use" if it pays the owners "just compensation." Originally, public use meant the land was used for roads, canals or military bases. In the 19th century, railroads were permitted to take private lands because they served the public.

In the mid-20th century, the court said officials could condemn homes and stores in "blighted" areas as part of a redevelopment plan. That 1954 decision helped trigger various urban renewal projects across the nation.

In today's decision, the court went a step further and said officials need not claim they were condemning blighted properties or clearing slums. Now, as long as officials hope to create jobs or raise tax collections, they can seize the homes of unwilling sellers, the court said. This "public purpose" is a "public use" of the land, the court said in Kelo vs. New London.

The justices said they were unwilling to "second guess" local officials on what is best for their communities.

"Promoting economic development is a traditional and long accepted function of government," said Justice John Paul Stevens.

Judges should give city councils and state legislatures "broad latitude in determining what public needs justify the use of the takings power," he added.

Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined him.

The dissenters said the court was ignoring the basic rights to private property that were written into the Constitution.

Justice Sandra Day O'Connor said all property was now potentially subject to seizure.

"Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory," she said.

Justice Clarence Thomas said that the impact of these redevelopment plans falls heaviest on the poor, minorities and the elderly.

"Over 97% of the individuals forcibly removed from their homes by the 'slum clearance' project upheld by this court (in 1954) were black," Thomas said.

Suzette Kelo, the New London, Conn. homeowner who sued to save her home, said she was "very disappointed the court sided with powerful government and business interests."

Dana Berliner, one of her attorneys at the Institute for Justice in Washington, called it a "dark day for American homeowners. Every home, small business or church would produce more taxes as a shopping center or office building. And according to the court, that's good enough reason for eminent domain."

Los Angeles Times: www.latimes.com