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Unalienable Rights Foundation - A TALE OF TWO CITIES New London v Baltimore Eminent Domain
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Welcome to Unalienable Rights Foundation!


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 A TALE OF TWO CITIES New London v Baltimore Eminent Domain

NEWS-UNALIENABLE-RIGHTS

A TALE OF TWO CITIES
Kelo v. City of New London

Written by: Morton P. Fisher, Jr.

FROM DIRT - PUBLISHED BY THE ABA.

Baltimore's renovated waterfront has spawned new office buildings, restaurants and entertainment and millions of tourists in an area that several decades ago was inhabited by decaying wharves, dilapidated and boarded up buildings and derelicts. Baltimore's inner harbor renewal has truly served as a model for the nation.



None of this would have been possible without the exercise of the power of eminent domain to assemble the parcels on which redevelopment was to take place.

New London Connecticut's desire to accomplish a similar result has embroiled New London in a dispute with property owners which is now before the Supreme Court in what could be aptly described as the most important real estate related case in over fifty (50) years when the Supreme Court in Berman v. Parker held that a taking of land to alleviate blight (i.e., it is significant to note that the department store which was taken in Berman v. Parker was not blighted but was in an area declared to be blighted) is a public use within the meaning of the Fifth Amendment of the Constitution of the United States which provides that no property may be taken except for a public use and for just compensation.

The question presented in the property owner's brief was framed as follows:

"What protection does the Fifth Amendment's public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of 'economic development' that will perhaps increase tax revenues and improve the local economy?"

The question as so framed does not take into account that the State of Connecticut declared all of New London to be an economically distressed area.

The Fifth Amendment to the United States Constitution provides in relevant party:

"No person shall be . deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation." (Emphasis added.)

The Fifth Amendment's public use clause has been made applicable to the states through the Fourteenth Amendment to the United States Constitution. See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 231, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984).

This case, Kelo v. The City of New London, raises squarely the issue of whether the taking of property for economic development purposes is a public use within the meaning of the State and Federal Constitutions.

The outcome of the Kelo case may well determine the future of redevelopment and, indeed, development in our country at a time when assemblage of multiple parcels for development is increasingly difficult.

Although in Kelo the State of Connecticut declared New London to be in a depressed economic condition neither the properties which were condemned in Kelo nor the area where the properties are located was declared to be blighted, a distinction which may be significance.

Thus Kelo gives the Supreme Court the opportunity to decide whether the taking of property solely for economic development purposes, (i.e., jobs and taxes) is permissible under the Fifth Amendment.

We start with the simple proposition as stated in the oral argument that the State cannot take A's property and give it to B because the governor wants his friend B to have the property. Similarly we start with the proposition that government can take private property for traditional public uses such as schools and roads and government buildings. Older cases also upheld takings for railroads, obviously a private purpose.

But as discussed in the oral argument before the Supreme Court is the taking of a Motel 6 to turn the property over to a developer who will build a Ritz which will create more jobs and increased taxes raises the issue as to whether this is a public use without the meaning of the Constitution. The City of New London argued that it was.

Counsel for the property owners who live in the residences which were taken in Kelo argued that it was neither fair nor permissible to take a home in which Kelo had lived her entire life and that if acquired at all it must be acquired through negotiation. Many public interest groups agreed and filed amices briefs.

The Justices seemed to focus on a variety of issues at the oral argument which took place on February 22, 2005.

1. If acquisition through private purchase using tax dollars was a public use why would not condemnation to acquire the same property be a public use?

2. Are the Courts giving to oversee the finding of legislative or the executive branches of government on a case by case basis as to what constitutes a public use?

3. Should the determination of just compensation be different in a case where the prior owner receives only appraised value and the property is turned over to a developer for a nominal amount where there is the potentiality for large profits?

4. Given that State appellate courts have widely different views on the main issue in Kelo, should the Supreme Court supplement its opinion for the decisions in State courts?

5. Should the courts consider whether there has to be a reasonable assurance that the public use will in fact take place in a reasonable amount of time?

Some comments of the Justices seem to give an indication of where the Justices stand:

Justice Ginsburg:

"But you concede that on the facts, more than tax revenue was at stake. The community had gone down and down and the town wanted to build it up." (Page 4, lines 13-16)

Justice O'Connor:

"Oh, but Berman spoke, in the opinion, said that the determination of the legislature about these things is virtually conclusive, that there is only the narrowest, narrowest role for the judiciary. What kind of standard are you proposing we should get into here to second-guess the public use aspect?" (Page 5, lines 17-23)

Justice Breyer:

"But there is no taking for private use that you could imagine in reality that wouldn't also have a public benefit of some kind, whether it's increasing job or increasing taxes, et cetera." (Page 6, lines 22-25)

Justice Souter:

"Well, in my example, the same thing is going on except that it's not using the eminent domain power [using tax dollars to buy private property]. If the purpose in my example is a proper public purpose, why isn't it a proper public purpose when the government does it by eminent domain? What changes about the purpose?" (Page 10, lines 11-16)

Justice Kennedy:

"As I understand, you're testing - you want me to make a distinction between blight which is a permissible governmental use, governmental objective and economic revival, which isn't." (Page 12, lines 24-25 and Page 13, lines 1 and 2)

Justice Kennedy:

"But what I am asking is if there has been any scholarship to indicate that maybe that compensation measure ought to be adjusted when A is losing property for the economic benefit of B." (Page 23, lines 2-6)

Justice O'Connor:

"For example, Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now, is that okay?" (Page 30, lines 3-5)

Justice Scalia:

"Mr. Horton, what, what difference does it make that, that New London was in an economic depression? Would it not be fully as much, under your theory of a public use, for a city to say, yes, we are not doing badly, but we could do better. Let's attract some high-tech industry here. You can't possibly draw a line between depressed cities and undepressed cities, can you?" (Page 28, lines 21-25 and Page 29, line 1-3)

Over forty amices friend of the brief cases were filed in the case, many by cities and states advocating the need for condemnation to support economic development and many by public interest groups advocating the rights of private property owners. The briefs include a most interesting brief filed by the City of Baltimore recounting the history of Baltimore's revitalization. As stated in Baltimore City's brief:

"The Mayor and City Council of Baltimore respectfully submits the brief in support of respondents, because the petitioners' proposed restriction of the concept of 'public use' would have a profound adverse impact on economic and urban development in Baltimore and in other cities around the country." (Page 1)

There is of course no way of predicating how the Supreme Court will rule in the Kelo case or which of the primary issues in the case the Supreme Court will address.

We will end with the first words of a Tale of Two Cities "It was the best of times and it was the worst of times."

In Kelo, the Supreme Court will decide whether the best of times will be for the property owners or the City.




 
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