NY Times Article Eminent Domain
A recent New York Times article discusses efforts by
legislatures across the country to combat the Supreme Court ruling
in Kelo v. City of New London upholding the authority of the City
of New London to condemn homes in an aging neighborhood to make way
for a private development of offices, condominiums and a hotel.
States Curbing Right to
Seize Private Homes In a rare display of unanimity that
cuts across partisan and geographic lines, lawmakers in virtually
every statehouse across the country are advancing bills and
constitutional amendments to limit use of the government's power of
eminent domain to seize private property for economic development
The measures are in direct response to the United
States Supreme Court's 5-to-4 decision last June in a landmark
property rights case from Connecticut, upholding the authority of
the City of New London to condemn homes in an aging neighborhood to
make way for a private development of offices, condominiums and a
hotel. It was a decision that one justice, who had written for the
majority, later all but apologized for.
The reaction from the states was swift and heated.
Within weeks of the court's decision, Texas, Alabama and Delaware
passed bills by overwhelming bipartisan margins limiting the right
of local governments to seize property and turn it over to private
developers. Since then, lawmakers in three dozen other states have
proposed similar restrictions and more are on the way, according to
experts who track the issue.
The National League of Cities, which supports the use
of eminent domain as what it calls a necessary tool of urban
development, has identified the issue as the most crucial facing
local governments this year. The league has called upon mayors and
other local officials to lobby Congress and state legislators to
try to stop the avalanche of bills to limit the power of government
to take private property for presumed public good.
The issue is not whether governments can condemn
private property to build a public amenity like a road, a school or
a sewage treatment plant. That power is explicit in the takings
clause of the Fifth Amendment, provided that "just compensation" is
paid. The conflict arises over government actions to seize private
homes or businesses as part of a redevelopment project that at
least partly benefits a private party like a retail store, an
apartment complex or a football stadium.
"It's open season on eminent domain," said Larry
Morandi, a land-use specialist at the National Conference of State
Legislatures. "Bills are being pushed by Democrats and Republicans,
liberals and conservatives, and they're passing by huge
Seldom has a Supreme Court decision sparked such an
immediate legislative reaction, and one that scrambles the usual
partisan lines. Condemnation of the ruling came from black
lawmakers representing distressed urban districts, from
suburbanites and from Western property-rights absolutists who
rarely see eye to eye on anything. Lawmakers from Maine to
California have introduced dozens of bills in reaction to the
ruling, most of them saying that government should never seize
private homes or businesses solely to benefit a private
The Supreme Court seemed to invite such a response in
its narrowly written ruling in the case, Kelo v. City of New
London. Justice John Paul Stevens , writing for the majority,
expressed sympathy for the displaced homeowners and said that the
"necessity and wisdom" of the use of eminent domain were issues of
legitimate debate. And, he added, "We emphasize that nothing in our
opinion precludes any state from placing further restrictions on
its exercise of the takings power."
Two months after the ruling, addressing a bar
association meeting, Justice Stevens called it "unwise" and said he
would have opposed it had he been a legislator and not a federal
judge bound by precedent.
Plenty of legislators took the hint.
The issue was one of the first raised when
Connecticut lawmakers returned to session early this month. There
are bills pending in the Legislature to impose new restrictions on
the use of eminent domain by local governments and to assure that
displaced businesses and homeowners receive fair compensation.
(The New London project is essentially delayed, even
after the Supreme Court go-ahead, because of contractual disputes
and an unwillingness to forcibly remove the homeowners who sued to
save their properties.)
In the New Jersey Legislature, Senator Nia H. Gill, a
Democrat from Montclair who is chairwoman of the Commerce
Committee, proposed a bill to outlaw the use of eminent domain to
condemn residential property that is not completely run down to
make room for a redevelopment project. The bill, which is pending,
would require public hearings before any taking of private property
to benefit a private project.
In New York, State Senator John A. DeFrancisco, a
Republican, has proposed a measure similar to one in other states
that would remove the right to exercise condemnation power from
unelected bodies like an urban redevelopment authority or an
industrial development agency.
Texas was one of the first states to act after the
Kelo ruling, taking up the issue in a special legislative session
that was supposed to focus solely on education. Gov. Rick Perry a
Republican, signed a bill on Sept. 1 that prohibits use of eminent
domain to benefit a private party, with certain exceptions. Among
those exceptions is the condemnation of homes to make way for a new
stadium for the Dallas Cowboys.
The sponsor of the Texas measure, Senator Kyle Janek,
Republican of Houston, said the state was weighing an amendment to
cement the eminent domain restrictions, but that process can take
years. He sponsored his bill, he said, because "We wanted something
in place quickly that the governor could sign and would take
The bill could affect a huge highway project now in
the planning stages known as the Trans-Texas Corridor, a
public-private toll road and rail project that would require the
taking of large swaths of privately owned land.
There are six proposed laws and five constitutional
amendments before the California Legislature, as well as several
proposed citizen initiatives to curb the eminent domain power. The
bills are supported by, among others, the California Farm Bureau
Federation, which fears that the Kelo ruling will empower cities to
gobble up more farmland to build subdivisions and strip malls.
The lobbyist for California's local economic
development agencies said the ruling and the resultant legislation
had been a nightmare.
"My life hasn't been the same since June 23, 2005,"
said the lobbyist, John F. Shirey, executive director of the
California Redevelopment Association, referring to the date the
Supreme Court handed down the ruling. The group represents 350
local redevelopment authorities around California and believes such
agencies need the eminent domain power to rebuild distressed
Ohio's legislature, acting swiftly and unanimously
after the Kelo decision, declared a moratorium on all government
takings until the end of 2006. The state has created a 25-member
bipartisan panel to study the issue and make recommendations for
changes, if necessary, in Ohio's eminent domain statutes. The
sponsor of the moratorium measure, Senator Timothy J. Grendell, a
Republican lawyer who specializes in property rights cases, noted
that the Ohio Supreme Court was now weighing a potentially crucial
eminent domain case involving the city of Norwood, a suburb of
In that case, city officials have approved a plan to
condemn about 60 homes to make way for an upscale office and retail
complex. The homeowners are represented by lawyers from the
Institute of Justice, a public interest law firm that litigates
against what it calls eminent domain abuse and that represented the
plaintiffs in the New London case.
Scott G. Bullock of the Institute for Justice
described the Norwood case as an important test of property rights
law in the post-Kelo era, but would not predict how the Ohio court
would rule. He said he hoped to take another case before the
Supreme Court in the next few years to determine whether the courts
can curb eminent domain power further, even as state legislatures
act on their own.
Mr. Bullock said he expected municipal officials and
redevelopment authorities to try to fight the wave of eminent
domain legislation by offering cosmetic changes to existing law,
for example by requiring an extra hearing or an economic impact
statement. But he said that major changes were coming in how the
takings power of government is used.
"Our opposition to eminent domain is not across the
board," he said. "It has an important but limited role in
government planning and the building of roads, parks and public
buildings. What we oppose is eminent domain abuse for private
development, and we are encouraging legislators to curtail it."
More neutral observers expressed concern that state
officials, in their zeal to protect homeowners and small
businesses, would handcuff local governments that are trying to
revitalize dying cities and fill in blighted areas with projects
that produce tax revenues and jobs.
"It's fair to say that many states are on the verge
of seriously overreacting to the Kelo decision," said John D.
Echeverria, executive director of the Georgetown Environmental Law
and Policy Institute and an authority on land-use policy. "The
danger is that some legislators are going to attempt to destroy
what is a significant and sometimes painful but essential
government power. The extremist position is a prescription for
economic decline for many metropolitan areas around the
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States Curbing Right to Seize Private