Supreme Court takes eminent-domain case

By Gina Holland
The Associated Press

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WASHINGTON — The Supreme Court agreed yesterday to decide when local governments may seize people's homes and businesses against their will to make way for projects such as shopping malls and hotel complexes that produce more tax revenue.

The court already has given governments broad power to take private property through eminent domain, provided the owner is given "just compensation." This often involves blighted neighborhoods that residents are eager to leave.

But in recent years more cities and towns have been accused of abusing their authority, razing nice homes to make way for parking lots for casinos and other tax-producing businesses.

"If you own a home, if you own a small business, this could directly affect you," said Scott Bullock, senior attorney for the Institute for Justice, a Washington public-interest law firm representing the land owners.

In agreeing to hear a Connecticut case early next year, justices will revisit an issue they last dealt with 20 years ago. The court ruled unanimously then that Hawaii could take land from large property owners and resell it to others, and determined that decisions about takings were best left to elected leaders.

In the latest case, Susette Kelo and several other homeowners in a working-class neighborhood in New London, Conn., filed a lawsuit after city officials announced plans to bulldoze their homes to clear the way for a riverfront hotel, health club and offices. The residents refused to budge, arguing it was an unjustified taking of their property.

Eminent domain Six states allow condemnations for private business development alone: Connecticut, Kansas, Maryland, Minnesota, New York and North Dakota. Nine states forbid the use of eminent domain when the economic purpose is not to eliminate blight: Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, Montana, South Carolina and Washington. Three states have indicated they probably will find condemnations for economic development alone unconstitutional: Delaware, New Hampshire and Massachusetts. The remaining states have not addressed or spoken clearly to the question. Source: Institute for Justice. The Associated Press

The neighborhood included Victorian-era houses and small businesses that in some instances had been owned by several generations of families. New London, a town of fewer than 26,000 people, had been losing residents and jobs when it planned the land takeover, city leaders said.

The Fifth Amendment allows governments to take private property for "public use."

The appeal turns on whether "public use" involves seizures not to revitalize slums or build new roads or schools, but to raze unblighted homes and businesses to bring in more money for a town.

"I'm not willing to give up what I have just because someone else can generate more taxes here," said homeowner Matthew Dery, whose family has lived in the New London neighborhood known as Fort Trumbull for more than 100 years.

New London contends that development plans serving a public purpose — such as boosting economic growth — are valid "public use" projects that outweigh homeowners' property rights.

City officials envision replacing a stagnant enclave with commercial development that would attract tourists to the Thames riverfront, complementing an adjoining Pfizer Corp. research center and a proposed Coast Guard museum.

"The record is clear that New London was a city desperate for economic rejuvenation," city lawyers wrote in a filing, asking the high court to defer to local governments in deciding what constitutes "public use."

The Connecticut Supreme Court agreed with New London, ruling 4-3 in March that the mere promise of additional tax revenue justified the condemnation.

Nationwide, more than 10,000 properties were threatened or condemned between 1998 and 2002, according to the Institute for Justice.

In many cases, according to the group, cities are pushing the limits of their powers to accommodate wealthy developers. Courts, meanwhile, are divided over the extent of city power, with six states saying economic development can justify a taking and nine states, including Washington, allowing seizures only if they eliminate blight. Over the summer, the Michigan Supreme Court restricted the power of local governments to take property for development projects.

With all the attention to such cases, "the Supreme Court got intrigued and felt it at least wanted to explore the issue," said Douglas Kmiec, a Pepperdine University constitutional law professor.

Kmiec said the Connecticut landowners have a sympathetic case, but they may have a difficult time winning because Supreme Court justices do not want to become an appeals board for every property case.

Among other cases:

Cruise lines: Agreed to consider whether foreign cruise lines sailing in U.S. waters must comply with a federal law that requires improved access for the disabled.

Primaries: Agreed to decide if political parties can open their primaries to all voters, in a constitutional challenge to Oklahoma's voting system.

Death penalty: Said it will hear a death-row appeal from a Pennsylvania man who says jurors should have been told they could have sentenced him to prison without parole.

Copyright © 2004 The Seattle Times Company

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