In the space of about 45 minutes, I heard about the Supreme Court’s decision in Kelo v. City of New London (pdf) from 4 sources both in person and online. Mostly the breathless comments had something to do with “the concept of private property has been abolished by the Supreme Court.” So, I went ahead and read the majority opinion. By way of full disclosure, I have not read the dissents, so maybe there are compelling rebuttals. I still think the court went a little further than I’m comfortable with, but from what I’ve read, it’s a lot closer call than I’d previously thought.
First of all, in the U.S. it has always been the law that the government could take your land so long as it was taken for a public use and so long as the government pays you the market value of the land. I suspect that the people who will be the angriest about this decision are the people who didn’t like that basic fact of U.S. law to start with. The government could always take your land, pay you the market value, and build a road where your house used to be. It’s certainly a fair argument that this shouldn’t be the law, but it wouldn’t be fair to beat the Court up about this aspect of the law.
What’s a little new here is that the government isn’t taking the property to build a road. It’s taking the property to implement an economic development plan for an area of the city. The city was able to negotiate sales with most of the property owners, but there were a few holdouts. Specifically, the plan called for the following:
The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 115 privately owned properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres). The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference hotel at the center of a small urban village that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A pedestrian riverwalk will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park. This parcel also includes space reserved for a new U. S. Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4-acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and retail space, parking, and water-dependent commercial uses.
I think the crux of the decision is this:
Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including – but by no means limited to – new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.
The question, I guess, comes down to whether the court can second guess the legislature and city officials in their conclusion that the economic development plan constitutes a public use. The court deferred to the city officials’ use of a state statute. This doesn’t strike me as being too different from the government seizing your property and giving it to a railroad or a utility company to build track or utility lines.
I’m a little uncomfortable with this case, but I don’t see it as that big a stretch from existing law.
Update I’m really disappointed with the news coverage I’ve seen on this case. All of it seems determined to report the decision in the most breathless terms possible. GOVERNMENT CAN SEIZE WORKING CLASS HOMES FOR SHOPPING MALL! I think the scope of development is really critical here. If the government were going to take the home and turn it over to Simon Properties solely to turn the property into a mall, that would have been unconstitutional, even if it did create jobs and produce tax revenue. This case involved a project that was wide in scope that seems to have involved creation of a park, a museum, a river walk, a housing development that fit the economic plan, support for the marina, as well as a Pfizer plant development.
So, out there in the blogosphere, I find myself in an odd position. I’m luke warm at best on the decision, but I’m just really unhappy with the characterization of the opinion out there. It’s almost as if — prepare to be shocked — people haven’t even read the decision.
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