New battle lines drawn in eminent domain argument as debate
shifts from high court to state legislatures
Washington – When the U.S. Supreme Court ruled in June that private homes may be seized to make room for commercial development projects, the decision ignited a firestorm of criticism.
Outraged property-rights activists said the 5-to-4 opinion in Kelo v. New London would render homes and businesses nationwide vulnerable to government land-grabs to foster economic revitalization.
Now, six months later, the debate over property rights is still raging, but it is about to enter a new, more deliberative phase as state legislatures prepare to open for business next year.
“There will be 44 states in session, and I am sure you will see bills introduced in all those states,” said Larry Morandi, who tracks reaction to the Kelo decision for the National Conference of State Legislatures.
In his majority opinion in the Kelo case, Justice John Paul Stevens wrote that even though the condemnation plan of New London, Conn., did not violate the Constitution, there was nothing to prevent lawmakers from restricting eminent-domain power.
On one side are property rights advocates pushing for tough restrictions on the use of eminent domain against homeowners and small businesses. On the other side is the redevelopment industry and various federal, state and local officials who stress the need for government flexibility in helping communities rebound.
“The key will be striking the proper balance between use of eminent domain for job creation on one hand and proper respect for property rights on the other hand,” said Timothy Dowling of the Washington-based Community Rights Counsel.
So far, Alabama, Texas, Delaware and Ohio have passed measures in response.
In addition, last month the House of Representatives voted 376 to 38 to pass the Private Property Protection Act, which threatens to cut off federal funding to states and communities that seize homes for private commercial projects. The measure now moves to the Senate.
Polls show public opposition has ranged from 70 percent to more than 90 percent of respondents, she said.
Proposals for eminent-domain reform range from an outright ban on property seizures for economic development to beefed-up regulatory processes requiring more community involvement earlier in the planning process.
Timothy Sandefur, a lawyer with the Pacific Legal Foundation, favors limiting home seizures to projects involving actual government use of the property. But many states are likely to push for something less, he said. He is not impressed by the reforms adopted in the four states.
Alabama and Texas continue to allow public seizures when property is deemed “blighted.” But Sandefur said vague definitions of what constitutes “blight” leave giant loopholes in those state laws.
A proposed law in Pennsylvania has a focused definition of blight and is thus a reform effort with real teeth, he said.
In contrast, the definition of blight in some states is so all-encompassing that it embraces any property that is not producing enough sales-tax revenue for the government.
Community Rights Counsel’s Dowling favors a legislative approach under consideration in New York. Lawmakers there may offer homeowners an increased level of compensation above the required fair market value for their property, Dowling said, to help cover some of the noneconomic costs associated with eminent-domain efforts.
“I don’t think it has to be an either/or situation between never using eminent domain and always using it,” he said. In many cases, he said, eminent domain is an essential tool to counteract a property owner who is holding out to extort a lucrative deal from officials, whose only goal is to achieve a greater good for the community.
