What is Constitutional and What is Unconstitutional in Eminent Domain?
FindLaw, a web-based subscriber source of legal materials, gives us some details on the use of eminent domain for redevelopment purposes: “The Supreme Court has approved generally the widespread use of the power of eminent domain by federal and state governments in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in place of deteriorated housing, and the promotion of aesthetic values as well as economic ones.”
The principles applied by The Supreme Court in Kelo go back as far as 1810 when in Custiss v. Georgetown and Alexandria Turnpike Co, the Court stopped a district court from interfering with the taking of private land for a private turnpike. Similar cases are Clark v. Nash, 198 U.S. 361 (1905) (a water ditch), and Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power, 240 U.S. 30 (1916) (power company).
In Berman v. Parker, 348 U.S. 26 (1954) the Supreme Court states, “The District of Columbia Redevelopment Act of 1945 is constitutional, as applied to the taking of appellants' building and land (used solely for commercial purposes) under the power of eminent domain, pursuant to a comprehensive plan prepared by an administrative agency for the redevelopment of a large area of the District of Columbia so as to eliminate and prevent slum and substandard housing conditions - even though such property may later be sold or leased to other private interests subject to conditions designed to accomplish these purposes.”
All these cases, however, are united by a principal of the courts deferring to the decisions of the legislatures as to what constitutes public use, or “public convenience and necessity”, the criteria for eminent domain. Elsewhere in Connecticut, a vast swathe of central Stamford was taken by eminent domain for urban redevelopment purposes by the Frank Rich Company, and Stamford was transformed in terms of economic growth, employment and culture. It hosts the US headquarters of UBS (with the largest trading floor in the world) and UBS is about to be joined by the Royal Bank of Canada’s headquarters, and there are so many jobs that people commute 90 minutes or more to work there. It was tough on the homeowners in central Stamford, but a great boon to the public at large.
Justice O’Connor’s dissent in Kelo distinguishes Berman by its slum removal goal; public use in her view was not just building something to create an economic resurrection of an area of Washington, it also got rid of some nasty ugly old buildings.
However, note that Kelo really makes no change in judging the Constitutionality of a taking; it will continue to be determined by someone’s definition of “public use”. The SCOTUS majority chose to defer to the local representatives of the public in this case. This is a step back from the Court’s recent activist role, and I think it is healthy. When an issue before a court revolves around interpretation by individual decision makers of whether a proposed use of land is or is not public enough, I favor deferring to the “boots on the ground”, the local authorities.
Arch-liberal Edward Lazarus actually makes my point:
“Conservatives have managed successfully to equate the term ‘activism’ with all controversial or unpopular judicial decisions. Indeed, they have even managed to take uncontrovertibly non-activist decisions and label them activist. A prime example is the Court's controversial decision in Kelo v. New London, in which the Court refused to strike down New London's decision to use the power of eminent domain to take private property and give it over to a private developer. Now, many reasonable criticisms have been leveled against the Kelo decision (though it is also powerfully defended). But one thing is certain: the decision is the very opposite of activist. Kelo is a decision refusing to impose a judicial check on the judgment of New London's elected officials. If anything, the decision is excessively passive. None of this, however, stops conservatives from tarring the decision with the activist label.”
Justice Thomas has the stronger dissent – he says that courts have gone way overboard in finding public uses for private takings, and he would overturn Berman and all the rest of the cases. That is an honest position, but one that would condemn inner-city blight to perpetual existence.
The transfer of condemned property to private interests has been permitted for two centuries. It is an interesting issue, but the real issue is one of finding an adequate public purpose in the taking of the property.
Now if you want to get excited about bad stuff, take a look at Didden v. Port Chester.
“With the blessing of officials from the Village of Port Chester, a politically connected developer approached Didden and his partner with an offer they couldn’t refuse. Because Didden planned to build a CVS on his property—land the developer coveted for a Walgreens—the developer demanded $800,000 from Didden to make him ‘go away’ or ordered Didden to give him an unearned 50 percent stake in the CVS development. If Didden refused, the developer would have the Village of Port Chester condemn the land for his private use. Didden rejected the bold-faced extortion. The very next day the Village of Port Chester condemned Didden’s property through eminent domain so it could hand it over to the developer who made the threat, and there is a Walgreen’s standing there today.
“The 2nd U.S. Circuit Court of Appeals approved this extortion scheme using eminent domain under the Kelo decision, a case in which the U.S. Supreme Court ruled eminent domain could be used by the government for private development—handing over one person’s home or small business to a developer who merely promises to pay more taxes or create more jobs with the land. The 2nd Circuit ruled that because this is taking place in a ‘redevelopment zone,’ it couldn’t stop what the Village is doing.
“’This abuse will only grow worse until the courts do their job and set some limits on government’s power of eminent domain,’ said Dana Berliner, a senior attorney with the Institute for Justice, which represents Didden and represented the Kelo property owners. ‘The Court wrote in Kelo that ‘conferring a private benefit on a particular private party’ would still violate the Constitution. Well, here was that exact case—where a developer was trying to use eminent domain to extort cash from a property owner; about as private a benefit as it gets—and yet they punted.” [SCOTUS declined to review the case, letting stand a 2d Circuit decision that the taking was OK under Kelo].
Didden is worth getting angry about. As attorney Berliner points out, Kelo did not mandate this outcome, but if Kelo continues to be misapplied, then it needs to be reviewed and at least modified so as to eliminate unintended (and unauthorized) consequences.
