« Kelo post-game analysis from The Day (New London, CT) | Main | TONIGHT: DEMOCRACY & DEVELOPMENT IN BROOKLYN »
February 24, 2005
Narrow Options For Cities
Supreme Court's questions suggest a sympathy for plight of cities.
Published on 2/24/2005
The United States Supreme Court asked pointed questions Tuesday about both the options for distressed cities and the need to protect individual property owners' rights. Two justices – Chief Justice William Rehnquist and Justice John Paul Stevens — were absent and one, Justice Clarence Thomas, asked no questions. But nevertheless, the tone of several justices' inquiries left the impression that the Court might well side with the city of New London while expressing concern for more tightly drawing parameters for government's use of eminent domain.
At its heart, the case comes down to these practical questions:
One is, should the Court uphold New London's position, what is to keep municipalities from having the unfettered ability to take any private property and turn it over to a private developer for residential or commercial use that exceeds the existing property valuation?
Or, if the Court ruled out the use of eminent domain for economic purposes by communities, how could cities under siege for lack of tax revenues, tax-exempt properties and the tremendous costs associated with services provided to a whole region cope with the financial pressures?
Can the idea take root with the Court that redeveloping a whole section of a city constitutes a public benefit that is also a public use? The traditional standard for using eminent domain was for a “public use” such as a road, hospital or school. The notion of public use embodies a taking that serves the public for a common purpose.
The public use in Fort Trumbull, the New London Development Corp. and the city of New London argue, is to create the infrastructure that allows economic gain to the city and offers a better quality of life for its residents. In other words, bolstering the job and residential opportunities would redound to New London's benefit, perhaps even help assure the city's survival. Is that not a common purpose that serves the city well?
While the courts have been sensitive to the need to redevelop blighted areas, they also have tried to be careful to protect the individual rights of property owners not to be forced out of their homes. The New London case now compels the court to set some standards for assuring that a state or city does not use its eminent-domain powers in a way that unfairly treats property owners or forces them to sell against their will for a project that does not meet the criteria of a public use of the land.
The danger is that even projects that appear to be moving forward for a public use may involve arbitrary political decisions that are inconsistent with the original plan. Leaving the Italian Dramatic Club standing while demolishing private properties nearby might be an example of such an arbitrary decision. Did the NLDC act arbitrarily when it decided that the Italian club could remain and private homes be demolished?
Such decisions only add to the public cynicism that eminent domain takings may be used to benefit one particular property owner and not another.
The dangers are obvious, for the use of eminent domain by a government authority is fraught with the potential for favoritism or even inadvertent inconsistency when dealing with the property rights of individuals.
Should the Supreme Court favor the defendants, the city of New London and the NLDC, it must be careful to give clear guidelines that allow a minimum of wiggle room for arbitrary takings by potentially mischievous politicians. For in the end, politicians apply the terms to eminent domain takings and, as the plaintiffs argue, such power must not be taken lightly.
© The Day Publishing Co., 2005
Posted by lumi at February 24, 2005 08:27 AM