No Land Grab

Stadium's fans, foes await court decision

By O.K. Carter

Star-Telegram Staff Writer

Proponents of building the Dallas Cowboys stadium in Arlington publicly dismiss the possibility of an upcoming Supreme Court ruling limiting the city's ability to use eminent domain to acquire property for the facility.

Privately they fret.

Those opposing the taxpayer-funded investment hope the high court will so narrowly restrict eminent domain that this will derail the project. They're joined by property owners in the area proposed for the stadium, not so much because these people oppose the project, but in hopes that a favorable ruling will improve their bargaining power and thus their windfall.

When will this process unfold? The Supreme Court plans to hear Kelo vs. City of New London, Conn. on Feb. 22. A ruling is expected no later than the end of June.

New London wants to use eminent domain to take a neighborhood for economic development and then turn the property over to a private builder. Those opposing the condemnation want nothing less than the complete prohibition of eminent domain for private development. The government taking someone's land for private gain, they say, violates the public trust.

The Fifth Amendment to the U.S. Constitution gives government the power to condemn property for "public use" through eminent domain so long as due process is followed and "just compensation" paid to property owners. Though originally considered only a component of federal power, the 14th Amendment expanded the authority to all governmental levels.

Most such condemnations originally involved taking land for highways, public buildings and the like. But beginning in the 1950s, many local governments began using eminent domain for projects like urban development.

The practice was contested in the courts, but in Berman vs. Parker (1954) the high court ruled that aesthetics alone sufficiently justify use of eminent domain. Though Berman vs. Parker involved "blighted" property, the precedent was also established for such uses involving preservation of historical properties.

What hasn't been clear is if this ability to condemn extends to taking property purely for economic development and the turning over of that property for private purposes.

Though some of the Cowboys stadium area involves property that might loosely be defined as blighted -- a classification open to debate -- much of it is clearly not blighted. The city's attorney argues that the city technically will own the property and lease it to the Cowboys -- not the same as turning it over to a private investor. But it's doubtful that if the court rules against New London it would leave such a formidable loophole. Why bother, if all that's necessary is for the governmental taker to establish a long-term lease with a private user?

Meanwhile, interest in the New London case ratchets upward.

No less an urban prophet than Jan Jacob, author of the urban studies classic The Death and Life of Great American Cities, has filed a brief in the court on the case.

Jacob complains in the brief that too much use of eminent domain involves replacing what she calls "real neighborhoods."

"The costs of development takings are disproportionately inflicted on poor and minority communities, because these groups are disadvantaged in the political process, especially relative to the powerful corporations and private interests that benefit from economic development condemnations," she writes.

Jacob might as well be talking about the Cowboys endeavor. Much of the displaced population living within the "blighted area" will be low-income minorities.

Stay tuned, along with the other 112,000 Arlingtonites who voted on the stadium question. It'll all sort out by June.