Friday, June 24, 2005


Yesterday, the Supreme Court decided Kelo v. City of New London, #04-108 (6/23/05). Justice Stevens wrote the majority opinion, and with the help of a concurring opinion from Justice Kennedy, got a 5-4 majority. Justice O’Connor dissented, and the Chief Justice and Justices Scalia and Thomas joined. Justice Thomas also wrote a separate dissenting opinion.

The case deals with the power of eminent domain (condemnation), in this case excercised by the municipality of New London, Connecticut. New London was losing population and business, and the city government decided that it should legislate to revive the City. The City decided to take property, including homes, from a number of residents, and to turn the property over to developers to upgrade the area in question, bring in jobs, and increase the tax base. The State did not object, but encouraged the project.

Most of the property owners agreed to sell to the City, as the first step, but some owners balked. The City decided to use its powers of eminent domain to take the property of the objecting owners. The eminent domain clause, a part of the Fifth Amendment, states “. . . nor shall private property be taken for public use, without just compensation.”

This was not a case of blight; there is no claim that the area in question was blighted, for example, by vacant, run-down, dangerous buildings, nor by poverty and dirty and unsanitary conditions. This is not a blight case, and no claim is made that blight justifies the taking here.

This is also not a case of the City taking private property to put the property to public use in the ordinary sense of the word, such as a park, a stadium (public has right to use), or a jail or courthouse. Nor is it a case of public use such as a mother irrigation ditch, or an oil pipeline, which may be owned by a private individual, but which the public has a right to use if need be.

Here we have no question as to whether and why the federal constitutional provision regarding eminent domain places a restriction on the use of the condemnation power by States and their political subdivisions. Apparently all of the justices agree that the eminent domain provision in the United States Constitution, restricts the States (and counties and cities) in two ways. First, no eminent domain (condemnation) unless just compensation is paid. Second, no eminent domain unless the taking of the property is for public use. “

Is a taking for a “public purpose” a taking for “public use?” The majority says Yes. The minority says that they are not satisfied that the taking in this case is for a “public purpose,” but even if it is, the taking must be for a public purpose which is also a “public use.” The minority says that the proposed use in this case, revitalization of the City, production of jobs, and increase of the tax base, may be for a “public purpose,” but the proposed use is not a “public use.” That is the issue in this case.

Justice O’Connor and those who joined her opinion, and Justice Thomas in his separate dissent, argue that the redevelopment plan of the City may be for a public purpose (though that is a question in itself) but even if the plan is for a public purpose, it must also be for a public use, and it is not in this case.

The Supreme Court had previously ruled that blight of an area (even though the objecting land owner’s business was not blighted) justified the taking of the entire area and transferring it to private developers, upon payment of the just compensation, for improvements and elimination of blight, and that such a taking was for a public use. Blight removal is a public use. Berman v. Parker , 348 U.S. 26 (1954).

The Supreme Court had previously ruled that the Hawaii Housing Authority could use the power of eminent domain to take the property of a few large landowners in Hawaii, and transfer the property to a number of persons who had been leasing homes from the big landowners. The purpose was to reduce the concentration of land ownership. That was a “public use.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).

Based primarily on those two cases, the Berman case and the Hawaii case, the majority ruled in this Connecticut case that the development plan was for a “public use,” even though a large portion of the property taken was to be transferred to private individuals for private businesses. The majority assures us that the power of eminent domain cannot be used to take the property of one private individual to transfer it to another private person, even upon payment of just compensation, unless the use is to be for a “public purpose.”

We are justified in being concerned; but not to worry, as it will now become a local issue. What is gone is most of our protection provided by the Public Use Clause of the Fifth Amendment. We can live without this provision of the Fifth Amendment. However, we are now at the mercy of the developers who get the ear of the city councils and county commissions. We will get “just compensation,” but that is defined as fair market value of the property, or what a willing buyer would pay a willing seller, neither being under any compulsion. No compensation for having to leave your home or land when you would rather not sell, that is, no compensation for being forced to sell.

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