Ruling on eminent domain triggers a firestorm of ire : Minneapolis (MN) Star Tribune, 7/23/05

By Kenneth Harney, Washington Post Writers Group

Calling it a backlash would hardly do it justice. Calling it an unprecedented uprising to nullify a decision of the highest court of the land would be more accurate.

In the four weeks since the Supreme Court sanctioned the seizure of private homes by municipal governments for private "economic development," a firestorm of reaction has broken out in dozens of state legislatures and in Congress.

At the federal level, the House adopted by a 365-33 vote a highly unusual resolution deploring the court's ruling. The House also voted 231-189 for a bill that would prohibit expenditure of any federal housing, transportation or Treasury funds "to enforce the judgment of the Supreme Court in the case of Kelo vs. City of New London." The court ruled that municipalities have the authority to determine what constitutes a "public purpose" for eminent-domain seizures — even if that means taking privately owned real estate away from one set of citizens and handing it over to private developers who promise to increase the local tax revenue base or increase employment.

In effect, the House told the court: You might have narrowly approved the Connecticut city's eminent-domain seizures of homes for a privately developed and owned urban renewal project, but we have a weapon in this fight too. If the appropriations amendment passes the Senate, the city of New London will not be able to use key federal funds in any way, directly or indirectly, to move that project forward. No transportation money, no housing subsidies, no assistance from the Treasury.

Meanwhile, bipartisan support is building in the Senate for the sweeping "Protection of Homes, Small Businesses and Private Property Act of 2005," sponsored by Sen. John Cornyn, R-Texas.

That bill declares that it is Congress' view that "the power of eminent domain should be exercised only for 'public use' as guaranteed by the Fifth Amendment, and that this power to seize homes, small businesses and other private property should be reserved only for true public purposes."

Under no circumstances, Cornyn said, should local eminent-domain powers "be used simply to further private economic development." If passed and signed into law, the bill would prohibit all uses of federal funds in connection with any eminent-domain seizures for economic development purposes.

At the state level, legislative moves are under way in more than two dozen states to rein in — or at least clarify — the powers of municipalities to condemn and seize homes. Eight states — Arkansas, Florida, Illinois, Kentucky, Massachusetts, Montana, South Carolina and Washington — already impose restrictions in some form.

In Connecticut, Gov. Jodi Rell has endorsed a moratorium on eminent-domain seizures and called the issue "the 21st century equivalent of the Boston Tea Party: the government taking away the rights and liberties of property owners without giving them a voice. But this time it is not a monarch wearing robes in England we are fighting — it is five robed justices at the Supreme Court in Washington."

The outraged reaction to the Kelo decision has erupted across the political and ideological spectrum, creating momentary bedfellows out of legislators who rarely agree on anything. Name another issue on which House Majority Leader Tom DeLay, R-Texas; Rep. Maxine Waters, D-Calif.; Senate Majority Leader Bill Frist, R-Tenn.; the House's lone self-described socialist, Rep. Bernie Sanders, I-Vt.; evangelical Christian groups; Rush Limbaugh, and Ralph Nader all are on the same side.

Waters denounced the decision — which she said would weigh most heavily upon minority and poor neighborhoods — as "the most un-American thing that can be done." DeLay called the ruling "a travesty."

A few Kelo opponents are looking to mount direct action — sometimes tongue-in-cheek. A California-based group called Freestar Media is organizing an effort to persuade the town council of Weare, N.H., where Supreme Court Justice David Souter owns property, to condemn Souter's land in order to give it to developers who promise to build a hotel on the site, substantially raising town revenue and employment in the process.

Souter voted with the majority in the case. The name of the proposed project: The Lost Liberty Hotel, which also will feature a restaurant called the Just Desserts Cafe.

Logan Darrow Clements, CEO of Freestar, insists, "This is not a prank. The town of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter, we can begin our hotel development."

"Just desserts" indeed.

Minneapolis Star Tribune: www.startribune.com

Kenneth Harney is a syndicated real estate columnist: kenharney@earthlink.net