Eminent domain decision affects all: South Bend (IN) Tribune, 7/5/05

Our Opinion
The Supreme Court ruling in favor of the city of New London, Conn. and private developers, and against the rights of private property owners who will now lose their homes, is one that should be viewed with concern by all Americans.

The individual's right to his home and property has always been sacred in American law.

The use of eminent domain by communities seeking to replace blight or make needed public improvements is not new. It has allowed governments to condemn private property and then use it for airports, highways, schools, parks and other improvements deemed to be in the best interests of the community as a whole.

What is new, according to Justice Sandra Day O'Connor in her dissent, is the endorsement of economic development as an appropriate public use.

"The government now has license to transfer property from those with fewer resources to those with more," O'Connor said. "The founders cannot have intended this perverse result."

In Indiana, the subject of eminent domain became an issue before the General Assembly when Rep. David Wolkins, R-Winona Lake, sought to ban state or local governments from condemnation of private property for commercial uses unless the owners had rejected offers of at least 150 percent of assessed value.

Unlike Connecticut, where the city of New London sought to take well-kept homes, Indiana law only allows condemnation in blighted areas. The law also requires that property owners be fairly compensated for their property.

Wolkins' bill, opposed by local governments, was not successful, but the idea behind it is to be the subject of a state study commission.

Justice John Paul Stevens said he found it surprising that the definition of what constitutes a public use had never been defined.

In his majority opinion, Stevens determined that public use should be defined as "public purpose" and said he saw "no basis for exempting economic development from our traditionally broad understanding of public purpose."

He said the plan in New London "unquestionably serves a public purpose."

O'Connor countered: "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded."

In our view, the definition of what is a "public use" ought to be limited to what can be used by the public — a highway, for instance, or a public building.

A private development is not necessarily a public use just because it enhances the tax base.

The decision does not prohibit states from putting their own restrictions on the use of eminent domain powers, as Indiana has done and should continue to do.

There is nothing wrong with eminent domain. It is a tool that every community needs to maintain its viability and rid itself of blighted areas.

It is the potential for misuse that must be guarded against.

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South Bend Tribune: www.southbendtribune.com