Curbing eminent domain abuses: (Hampton Roads VA) Daily Press, 7/3/05


By Patrick M. McSweeney

Every now and then, an issue emerges out of nowhere to dominate political conversation for months. The giveaway of the Panama Canal was such an issue in the 1970s.

The new hot issue is government's abuse of the power of eminent domain. A 5-4 decision of the U.S. Supreme Court on June 23 in Kelo v. New London prompted a spontaneous outpouring of disbelief, fear and anger across the country. That decision upheld a municipality's taking of private homes for a development simply because the municipality concluded that it would bring in higher tax revenues when the property was turned over to private businesses.

What so troubled average Americans is that any person's property can now be seized by government simply on the basis of the government's assertion that some vague public purpose will be served by taking the property from one private owner and then selling or leasing it to another private person. The asserted public purpose might be economic development or merely a better-balanced community.

The widespread negative reaction to the Supreme Court's decision in Kelo surprised most Virginia politicians. After all, a state statute already permits localities to condemn private property for any public purpose, which would include economic development and planning for a "more balanced" community. Despite several high profile battles in Virginia over the use and abuse of the eminent domain power, there had been no previous public outcry that would have warned politicians of what would come when the Kelo decision was announced.

In fact, two legislative proposals offered during the 2005 session of the General Assembly to prevent the very result the Kelo decision allows were given short shrift. Both would have narrowed the statutory definition of "public uses" to exclude those that are predominantly for a private purpose.

Now Virginia politicians are scrambling to get to the front of the long column of agitated citizens who are demanding legislative action to reverse the effect of the Kelo decision. These politicians, who had no interest in enacting a statutory fix to the problem just a few months ago, are suddenly outraged by the U.S. Supreme Court's decision.

As a result of the Kelo decision, the public is awakening to a greater threat to private ownership of property than government's use of the condemnation power to acquire land for parks or highways. The public is discovering the insidious collusion between powerful private developers and government officials to benefit both by the exercise of the government's power of eminent domain in circumstances that George Mason, Patrick Henry and other proponents of the Bill of Rights surely thought would be prohibited by the Takings Clause of the Fifth Amendment to the U.S. Constitution and similar provisions in state constitutions.

The private developers benefit by gaining the right to obtain property for their developments at a discount price when government officials use their condemnation power instead of bargaining with willing sellers. Government officials benefit in several ways, not the least of which is an enhancement of their power. They can seize the property of their political enemies and transfer it at a bargain price to their political friends and campaign contributors.

What the public response to the Kelo decision has demonstrated is that Americans have a deep, almost primal, desire to own property, which Kelo has put at risk. Politicians shouldn't expect public outrage to subside until they enact corrective legislation.

The Daily Press: www.dailypress.com

Patrick McSweeney, who practices law in Richmond, is former chairman of the Republican Party of Virginia: pmcsweeney@mcbump.com