The Good, Bad and Ugly of Eminent Domain

Written by Posted On Wednesday, 13 July 2005 17:00

I own a 2,000 square foot house on a 6,000 square foot lot.

All but one of the other houses in my neighborhood are on much larger lots and have more square footage, which means that their property tax bills are higher than mine.

Although my house could probably fetch more than twice what I paid for it four years ago, from the municipality's point of view, what I am contributing to its revenue base is much less than what I could be paying.

If I am reading the Supreme Court's 5-4 ruling in Kelo vs. New London correctly, there is nothing stopping my elected officials from acquiring my property through eminent domain, then handing it to a private developer to convert my land to something that would bring more revenue.

The municipality would, of course, be required to provide just compensation for taking my property, as guaranteed by the Fifth Amendment.

It is almost a sure bet, however, that what I consider just compensation and what the authorities would be willing to offer would diverge widely. This would mean a long, drawn out court battle.

"What is just compensation for a family losing a home?" asked Washington lawyer Leonard Zax, who is a recognized authority on property-rights issues. "It's not just fair market value. The dollar amounts approved in legislation passed in the 1960s are woefully inadequate in today's environment."

"Yet fair market value is interpreted as fair market value at the time of the seizure, not what the property is worth when it is a 20-story high-rise," Zax said.

You might think my example is a bit far-fetched, but it isn't all that out of line. In fact, one example cited by Scott Bullock, senior attorney for the Institute of Justice, bears some resemblance to my own.

"In Lakewood, Ohio, the city declared a neighborhood blighted because the homes lacked two-car garages and two full baths," he said. "A private developer wanted the land for a 'lifestyle center,' and the homes were in the way."

Bullock and the institute represented homeowners Jim and JoAnn Saleet and their neighbors in Cuyahoga County Court of Common Pleas. Two ballot initiatives rejected the development plan that would have taken the neighborhood and rescinded the blight designation.

Bullock argued for the plaintiffs in Kelo vs. New London before the Supreme Court. In anticipating the court's decision at a meeting of the National Association of Real Estate Editors in Washington on June 2, Bullock predicted that "if the Supreme Court said that it was legitimate to use eminent domain to create new taxes, the public-use clause [in the Fifth Amendment] becomes a dead letter."

Richard Ruda, chief counsel of the State and Local Legal Center in Washington, was not as pessimistic as Bullock about the Supreme Court decision.

"While eminent domain is an important tool for economic development, it is subject to many constraints that discourage overuse," he said. "It can only be exercised when authorized by the state legislature."

And although what the Supreme Court said determined "the meaning of public use under the Constitution, "it is still up to each state to establish standards, and to the supreme courts in those states to say what is or what isn't public use."

In the wake of the Supreme Court decision, several state legislatures, including Connecticut's, have either introduced bills to limit eminent domain or have sought moratoriums on its use.

While Zax acknowledges that eminent domain "has been a critical tool" in the revitalization of blighted cities, many efforts, while well-intentioned, have "been social disasters."

In the New London case, "the Connecticut Supreme Court narrowly held that the eminent domain provision was satisfied," he said.

There have been terrible abuses of eminent domain -- a great many of them unintentional. In 1955, the Naugatuck Valley region of Connecticut was ravaged by flooding that virtually robbed it of its century-old industrial core.

Land was taken through eminent domain to create a flood-control project designed to prevent that kind of flooding again. Land also was taken to create an elevated highway that rerouted traffic away from the downtowns of these communities. The businesses in these small towns, many of which survived the flood, could not survive without an out-of-town customer base as well.

I'm not sure how the Supreme Court decision eventually will play out. I doubt very much that I will come home one day to find a bulldozer parked in my front yard.

After all, Zax points out that nowhere in the Constitution is there a definition of "blight."

But I'll keep the lawns trimmed just in case.

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