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March 08, 2005
Eminent domain case tilting toward cities
By O.K. Carter
Star-Telegram Staff Writer
There's risk in predicting which way the U.S. Supreme Court will jump on any particular issue.
But most local governments around the country involved in parameter-stretching eminent domain proceedings -- including Arlington with its Cowboys stadium project -- were relieved at the recent line of questioning in the Kelo v. New London case.
The justices -- two were absent -- seemed reluctant to stop local governments from taking private property and then turning it over to other private property owners for development. Because the new development will pay more taxes and perhaps create jobs, the reasoning goes, it's an appropriate public use.
Background: New London, Conn., condemned a number of businesses and homes to make way for private redevelopment that includes a luxury hotel, health club, condominiums, offices and a parklike riverside area. Some of the owners refused to sell.
The takeover was not for public facilities or to eliminate blight, but for higher tax revenues, i.e., economic development.
The Fifth Amendment to the Bill of Rights allows taking private property for the public use in return for "just compensation." So define "just compensation." Does it mean the appraised value on tax rolls? Fair market value now? Fair market value if the taker has to negotiate? Should sentimental value or the inconvenience of displacement and relocation be considered?
Compensation issues aside, the New London example differs considerably from the probability that Tarrant County will use eminent domain to clear enough room for a subcourthouse on East Abram Street. The public use there -- a new courthouse that will house several governmental functions -- is evident.
The definition of public use can be stretched a bit further -- and has been by the courts -- when eminent domain is employed to clear blighted areas for urban renewal projects.
But when the attorney for New London suggested that it is also appropriate for local governments to take private property for more tax-profitable endeavors, Justice Antonin Scalia asked, "Are we saying you can take from A and give to B if B pays more taxes?"
"If they are significantly more," New London chief attorney Wesley Horton replied.
Although the idea seemed to bother the justices, news reports concluded that the court appeared reluctant to stem this tide of public taking for private purposes.
I say eminent domain for economic development will get the go-ahead, but just for a second opinion I checked with local lawyer Michael Schattman, a constitutional scholar who also has considerable judicial experience.
"Public use is or ought to be just that," Schattman said. "The New London case is not a public use even in the broader sense of redevelopment. We are talking about seven homes and using government power for the private profit of persons who cannot freely buy the land, because the owners do not want to move. This is a perversion of eminent domain. If there were principled conservatives on the Supreme Court, and there are not, then it would be stopped.
"But the Rehnquist-Scalia crowd are not conservatives; they are statists. So the homeowners will lose." Statists philosophically vest economic control and direction to government.
That's two for two, neither vote counting for anything except opinion. But clearly New London is lucky that Schattman is not on the high court bench.
I'm guessing that projects like the Cowboys are home free, but it's unlikely that the court will release its decision until later this year or perhaps even next spring.
Posted by lumi at March 8, 2005 06:52 AM