WASHINGTON - It happens in city after city: Office buildings
rise where mom-and-pop stores once stood and new houses replace
a church or a blighted neighborhood.
The aggressive use of eminent domain _ the power of the government
to condemn private property for public use _ is what fuels
this transformation of the American landscape. And for about
50 years, courts have agreed that eminent domain can be used
not only to clear land for public buildings, but also to inspire
affluent private development that's deemed to be for the public
But on Tuesday, the Supreme Court will consider whether the
government's powers have gone too far.
At issue is a case from New London, Conn., where the city
condemned a stable working-class neighborhood, which has waterfront
views of the Thames River, to allow a private developer to
build a swank, upper-class haven with high-priced houses and
affluent commercial properties.
The motive for New London was more taxes and more jobs. But
the price for Susette Kelo and the others in the neighborhood
includes losing the homes they've inhabited for decades and,
they say, their property rights.
Kelo says if the city condemns her property it will violate
the Constitution's protection against unjust property seizure.
If the court agrees with her, it will stop New London's development
immediately _ and cast doubt over similar projects around
Dana Berliner, a senior attorney at the Institute for Justice,
which represents Kelo and several of her neighbors, sees it
as a dispute that pits the affluent against those who aren't.
"All the city is saying is that the private developer
will produce more tax dollars and create more jobs than these
homeowners do," Berliner said. "The neighborhood's
not blighted. It's just in their way because the city thinks
this is a good place for private development. I don't see
how that would make this public use."
Doug Kendall, executive director of the Community Rights Counsel,
which supports New London in the case, said Kelo and the others
are asking the court to intervene in what should be a legislative
"The city of New London determined that this waterfront
project was critical to the economy and future of a depressed
New England town, and they want a court to second-guess that,"
Kendall said. "Eminent domain remakes cities. It's a
power that should be used carefully and only when necessary,
but government has to have it."
In some ways, the court's decision to even hear arguments
in Kelo's case is what has groups like Kendall's on edge.
Most lawyers consider the laws governing eminent domain to
be set like concrete, with little leeway for individual property
rights other than the requirement that people be justly compensated
for their property.
A landmark 1954 high-court ruling empowered cities to pursue
condemnations for private development, and the number of cases
since then has been scarce.
But property rights advocates have made recent gains in part
by linking eminent domain seizures to other kinds of government
intrusions on property interests. Urban and suburban dwellers
who face condemnation are now finding allies in rural landowners
who oppose government-imposed wetlands preservation or endangered
Several lower-court victories have brought the issue back
to the fore and galvanized those who believe property rights
are due more judicial deference.
"In a sense, there's a tide taking place, where excessive
impositions on private property are being stopped," said
Carol LaGrasse, president of the Property Rights Foundation
of America, which filed a brief supporting Kelo in the high
court case. "People didn't stand up before. Now they're
LaGrasse said the turning point for Kelo's case was a decision
by the Michigan Supreme Court last summer overturning a 1981
ruling that permitted the destruction of a neighborhood so
a General Motors plant could be built.
"There's a growing respect for fundamental property rights,
as people in many different situations realize that they have
the same interests," LaGrasse said.
Berliner, with the Institute for Justice, said Kelo isn't
asking the court to overturn its 1954 ruling or even diminish
eminent domain in a way that will affect private development.
She said that because even New London agrees that Kelo's neighborhood
isn't a blighted slum, it's an extreme case.
"We're just trying to have the standards enforced properly,"
she said. "It's one thing to take (property) for private
development of a blighted area, it's another to take it to
simply raise tax dollars or create jobs."
Although the residents would be compensated, Berliner says
that's not the point.
"This isn't about money. What does an 87-year-old woman
in poor health who's never lived anywhere else need with a
little bit of extra money for her house?" Berliner asked.
"What's important is staying in her only home, with her
family around her."
But Kendall, of the Community Rights Counsel, said the benefits
of eminent domain take precedence.
"Here, this is a very depressed, hard-hit former military
town that desperately needs jobs," he said. "This
waterfront redevelopment is place-specific; it has to be there
to attract business and interests in this area. If you say
you can't do it, you'll put the brakes on a lot of projects
that have been successful in rebuilding depressed communities
throughout this country."