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Supreme Court to consider government's powers of eminent domain

Knight Ridder/Tribune News Service
February 22, 2005
Stephen Henderson


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 good.

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 the country.

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 question.

"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 species requirements.

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 starting to."

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."

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