Without Local Curbs, Eminent Domain Abuse Is Imminent

By Benita M. Dodd

There was a time the U.S. Supreme Court ruled that government could take private property when it was “important to appropriate lands or other property for its own purposes, and to enable it to perform its functions, as must sometimes be necessary in the case of forts, light-houses, and military posts or roads, and other conveniences and necessities of government.”

No more. Today’s court has demolished the “public use” spirit and intent of the Takings Clause of the Fifth Amendment of the U.S. Constitution with its recent 7-Eleven interpretation of “conveniences.” Merriam-Webster defines convenience as “something …conducive to comfort or ease.” In the case of eminent domain – taking private property for public use – “convenience” clearly refers to easing the ability of government to operate.

That interpretation is reinforced later in the 1875 ruling quoted above, from Kohl v. U.S.: The court declared, “The proper view of the right of eminent domain seems to be, that it is a right belonging to a sovereignty to take private property for its own public uses, and not for those of another. Beyond that, there exists no necessity; which alone is the foundation of the right.”

Somehow, over decades, nanny governments started down a frightening path, diluting the “public use” declaration in the Takings Clause, deciding what was good for property owners and choosing where and what properties and communities deserved to be taken to be given to “another.” Instead of government “convenience,” it became common to seize “blighted” properties for the sole “public purpose” of increasing the tax base.

That’s what you get from a “living” Constitution. And we let it happen. Across the nation, we revel in new malls and parking lots and manufacturing plants. It matters not that a few people were displaced; after all, wasn’t it for the public good, a “public purpose”? Don’t we the people enjoy the facilities or benefit from the jobs? In fact, doesn’t economic growth benefit the whole community? And surely government only focuses on those rundown areas, not my community? By doing that, government is able to rake in more money and grow, and offer the public more services. Surely that fits public use?

New London, Conn., resident Susette Kelo thought she was safe in her tidy home. So did the nine other petitioners who urged the U.S. Supreme Court to void the condemnation of their 15 properties in the community. The high court’s majority opinion admits, “There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happened to be located in the development area” defined by the city of New London.

But the court approved the takings 5-4; after all, it “would be executed pursuant to a ‘carefully considered’ development plan.” Meanwhile, it magnanimously passed the buck: “[N]othing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”

While Georgia has stuck to the intent and spirit of the Takings Clause, the potential for eminent domain abuse looms large. Hundreds of authorities, agencies, local governments and boards possess the power to condemn property “on account of public exigency and for the public good.”

This state’s continued growth and prosperity require a degree of security among citizens, communities and businesses that is absent when the cloud of eminent domain is present. It’s now up to our elected officials to reinforce that property owners and businesses are not vulnerable to the lofty – and now, perhaps cocky – ambitions of politicians and planners.

On the bright side, the high court reiterated unequivocally that “the sovereign may not take the property of A for the sole purpose of transferring it to another party B, even though A is paid just compensation.” Also, the court said, “a State may transfer property from one private party to another if future ‘use by the public’ is the purpose of the taking.” That is essential in a forward-thinking community, to prevent the stifling NIMBY (not in my back yard) effect.

Unfortunately, the majority opinion dismisses as “narrow” the Takings Clause, saying that the court had “long ago rejected any literal requirement that condemned property be put into use for the general public.” And it refused to pin down the city government of New London on its need for the property or whether it would achieve the benefits claimed.

The Takings Clause was intended to secure the property rights of both rich and poor, and the reasonable needs of government. It’s frightening that a developer or redeveloper can ignore property owners and essentially stop by city government to have an area condemned under the fickle definition of “blight.” Near the proposed Atlanta Beltline development, for example, reluctant residents could have no recourse. As Stephen Greenhut, author of the eminent domain book “Abuse of Power,” points out, “It’s the little guy who needs the Constitution more than anyone else.”

A local land-use legal firm notes: “This ruling …will greatly increase the involvement by real-estate developers and major corporations in promoting planned community growth.” And if that’s not in your plans, the nation’s highest court has said, tough luck.

Benita M. Dodd is vice president of the Georgia Public Policy Foundation, an independent think tank that proposes practical, market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the views of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.

© Georgia Public Policy Foundation (July 1, 2005). Permission to reprint in whole or in part is hereby granted, provided the author and her affiliations are cited.

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