Few of us are likely ever to be directly affected by an exercise of eminent domain -- government’s taking (with just compensation) of private property for public use. Nonetheless, most of us are likely to have a keen interest in its use and limitations. It touches on issues that are fundamental to our understanding of private property and the role of government.

Last June, when the U.S. Supreme Court ruled in the eminent domain case of Kelo v. City of New London, there was a virtual firestorm of political reaction. The fire has not gone out. All around the country state legislation and citizens’ initiatives have been proposed in reaction to a ruling that affirmed the ability of a local government to take the private property of some individuals and to turn it over to private entities for the purposes of redevelopment.

California, of course, is no exception to this phenomenon. More than fifty legislative proposals have been floated. Senator Christine Kehoe, chair of the Senate Local Government Committee, has already held three hearings on eminent domain issues. At least three initiatives have been submitted, and it is quite likely that at least one will gather enough signatures to qualify for the ballot.

In the Kelo situation, ten owner and family member occupied homes, plus five investment properties -- none of them blighted or otherwise in poor condition -- were “condemned only because they happen to be located in a redevelopment area.” They will be turned over to private developers who will build office space and “parking or retail services for visitors, or to support the nearby marina.” The purpose of the redevelopment area is to provide “economic revitalization” for the city of New London, which had been determined to by a “distressed municipality.”

How did we get from a Fifth Amendment clause that provides that, with just compensation, government may take private property for a public use, to a situation where, albeit with compensation, government may take an unwilling property owner’s home and turn it over to a private developer?

The central concept in all this is public use. The discussion both in the Kelo decision and in the dissents (it was, after all, only by a 5-4 vote) provide us with food for thought. In the narrowest sense, we probably all understand and are comfortable with the concept of taking property for a public use. Such things as roads and fire stations come to mind. Perhaps we can even be comfortable with a broader sense of “public use.” What about taking land for operation by a private entity, but one that is available for public use, as in a railroad tracks or power lines? The courts have long been comfortable with this sense of “public use.”

In Kelo, the court noted that “while many state courts in the mid-19th century endorsed ‘use by the public’ as the proper definition of public use, that narrow view steadily eroded over time.” Accordingly, “this Court [i.e. U.S. Supreme Court] embraced the broader and more natural interpretation of public use as ‘public purpose.’” Which is to say, in the court’s view, “public use” has come to be understood as including “public benefit.” If a given use is for the purpose of a public benefit -- such as the increased taxes and economic revitalization to be brought about in the New London situation -- then that can justify the exercise of eminent domain. This is what led Justice O’Connor, in her dissent, to worry that, “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

It is most important to note that, in the Kelo decision, the Court said, “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose ‘public use’ requirements that are stricter than the federal baseline.” In a footnote, the Court pointed out that “under California law, for instance, a city may only take land for economic development purposes in blighted areas.”

In the next column we will discuss California’s “blight” requirement for public-purpose eminent domain proceedings, and we will also look at the potential impact that reactions -- or overreactions -- to the Kelo decision might have for California redevelopment law.