States of Eminent Domain: The Monitor (McAllen TX), 2/28/06

The Monitor View

It has been just over a year since the U.S. Supreme Court heard oral arguments in Kelo v. the city of New London (Conn.) and eight months since the high court ruled in favor of cities. Yes, the high court ruled, New London and other municipalities were within their constitutional bounds to use eminent-domain to take property from homeowners and business owners and give it to developers who promise economic and tax benefits to the city.

City officials, leaders of municipal organizations such as the League of Cities and, of course, developers celebrated that 5-4 decision, which said: "Promoting economic development is a traditional and long-accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized."

That statement is preposterous. It wasn’t difficult for the Constitution’s founders to make a bright-line distinction between public uses and private ones. Nevertheless, advocates for eminent-domain began celebrating a bit early, apparently overlooking another key portion of the ruling.

Justice John Paul Stevens, writing for the majority, wrote that "nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power."

Since July, the public has taken Justice Stevens at his word. Americans have been outraged at the idea that their home or business could be taken, and they could be forced to fight a long battle to gain just compensation, not so a city can build a road, but so that a city can give the property to a developer to build an auto mall, shopping center or hotel and thus raise tax revenue.

According to the Institute for Justice, which represented the property owners in Kelo, 40 state legislatures and Congress have proposed or passed legislation in the ensuing months. Conservatives and liberals have joined together to try to rein in abuses, even though only a handful of laws have yet been passed to deal with the issue. The few state laws that have passed still allow eminent domain for blighted properties.

California law requires a blight finding before eminent domain can be used for economic development, which has caused state redevelopment officials to tell Californians that there is nothing to worry about because Kelo hasn’t changed anything. Well, Kelo might not have affected California law, but abuses were rampant in this state before Kelo and they remain rampant after it. Changes are needed to protect homeowners given that cities take the widest latitude in declaring property blighted.

Although the California Democratic Party recently passed a resolution calling for reform, the Democrat-dominated Legislature halted any such reforms in the 2005 session. That’s why property-rights advocates, led by state Sen. Tom McClintock, R-Simi Valley, are circulating three separate initiatives that would place eminent-domain reform on a statewide ballot.

Meanwhile, Suzette Kelo and her neighbors have yet to leave their neighborhood in New London. Developers are leery of having their names associated with the landmark eminent-domain case. Redevelopment officials are frustrated and angry, and are trying to mount a countercampaign to prove to Americans that eminent-domain is a necessary "tool" in their redevelopment toolbox. Good luck on that point.

"My life hasn’t been the same since June 23, 2005," a top California redevelopment official told The New York Times, referring to the date the Kelo decision was issued. The Times article spotlighting the backlash against Kelo was on its front page, a testament to a rare level of resentment unleashed against a court ruling.

Coupled with the Oregon Supreme Court’s upholding last week of a measure requiring that the state’s municipalities pay compensation to property owners who lost value after the passage of land-use regulations, the Kelo reaction might signal the resurgence of a long-overdue property-rights movement in America.

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