Comments on: Kelo: The [quick] road to serfdom

By: Bill Wendling

Bill Wendling — Thu, 23 Jun 2005 23:05:58 +0000

Well, as a lawyer that does some work in land use law, I am thrilled with this decision. It will open a flood gate of litigation. If local government can take land from a private individual to give to another private individual based upon the determination that there is a “carefully planned development,” there will be no end to litigants trying to find the judicial defintion of that standard. Of course, if you are a cynic like my son, it is impossible for local goverment to ever come up with a “carefully planned development” so no taking will ever meet the standard set by the court.

By: Doug

Doug — Thu, 23 Jun 2005 18:53:30 +0000

All right, I read the decision and, while I think they may have gone too far, it’s a lot closer call than I’d previously thought. First of all, in the U.S. it has always been the law that the government could take your land so long as it was taken for a public use and so long as the government pays you the market value of the land. I suspect that the people who will be the angriest about this decision are the people who didn’t like that basic fact of U.S. law to start with. The government could always take your land, pay you the market value, and build a road where your house used to be. It’s certainly a fair argument that this shouldn’t be the law, but it wouldn’t be fair to beat the Court up about this aspect of the law.
What’s a little new here is that the government isn’t taking the property to build a road. It’s taking the property to implement an economic development plan for an area of the city. The city was able to negotiate sales with most of the property owners, but there were a few holdouts. Specifically, the plan called for the following:
“The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 115 privately owned properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres). The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference hotel at the center of a small urban village that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A pedestrian riverwalk will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park. This parcel also includes space reserved for a new U. S. Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4-acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and retail space, parking, and water-dependent commercial uses.”
I think the crux of the decision is this:
“Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including – but by no means limited to – new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.
The question, I guess, comes down to whether the court can second guess the legislature and city officials in their conclusion that the economic development plan constitutes a public use. The court deferred to the city officials’ use of a state statute. This doesn’t strike me as being too different from the government seizing your property and giving it to a railroad or a utility company to build track or utility lines.
I’m a little uncomfortable with this case, but I don’t see it as that big a stretch from existing laws.

By: Michael LoPrete

Michael LoPrete — Thu, 23 Jun 2005 18:20:18 +0000

SCOTUSblog has a piece up about the kennedy opinion; I have to get back to work and admit therefore to intellectual laziness by merely providing the link.
http://www.scotusblog.com/movabletype/archives/2005/06/kennedy_a_limit.html

By: Jason Kuznicki

Jason Kuznicki — Thu, 23 Jun 2005 17:42:03 +0000

Doug wrote,

Just playing Devil’s Advocate here, because I’m not altogether sure I’m comfortable with the decision (and I haven’t read it yet), but couldn’t this be read as the judiciary refusing to usurp the authority of elected officials to determine what constitutes public use?

This is not so. As Justice Thomas made clear in his dissent, legislative deference does not extend to any other provision of the Bill of Rights in this way. Moreover, if we agree that the legislative power may call the Pfizer pharmaceutical plant a “public use” property–then what’s to stop it from calling all property “public?”

By: Ed Brayton

Ed Brayton — Thu, 23 Jun 2005 17:18:14 +0000

Doug wrote:

Just playing Devil's Advocate here, because I'm not altogether sure I'm comfortable with the decision (and I haven't read it yet), but couldn't this be read as the judiciary refusing to usurp the authority of elected officials to determine what constitutes public use?

Of course, but that makes the decision no less absurd or unjustified. Allowing elected officials to violate the clear meaning of the phrase "public use" at their discretion does no less damage to the constitutional doctrine of limited government or to the principle of property rights than unelected judges doing so. If it is unconstitutional, it is so regardless of whether the government agency committing the violation is an elected or unelected body.

By: Jonathan Bunch

Jonathan Bunch — Thu, 23 Jun 2005 17:14:29 +0000

Doug, I think the more accurate assessment would be that it’s the judiciary deciding that public use has an extremely broad definition. The Justices in the majority don’t strike me as the “let’s not usurp the authority of elected officials” type.

By: Doug

Doug — Thu, 23 Jun 2005 17:10:07 +0000

Just playing Devil’s Advocate here, because I’m not altogether sure I’m comfortable with the decision (and I haven’t read it yet), but couldn’t this be read as the judiciary refusing to usurp the authority of elected officials to determine what constitutes public use?

By: Ed Brayton

Ed Brayton — Thu, 23 Jun 2005 16:46:42 +0000

Darn it, you beat me to this post. As I just wrote on my blog: Is it overstating it to say that the entire experiment in limited government that we began 216 years ago with the passage of the Constitution may well have come to an end in the last few weeks with the double whammy of the Raich and Kelo decisions? If "interstate commerce" can be abstracted to give the government authority over activities that are neither interstate nor commerce, and if "public use" can be abstracted to cover private use, I dare say we have passed through Alice's mirror into a Wonderland where words can mean whatever the Queen wants them to mean at any given time.

By: Anonymous

Anonymous — Thu, 23 Jun 2005 16:27:53 +0000

I hope they build a Starbucks. Never enough of those around. Plus, they pay a whopping $6.25 per hour! Great boost to the economy!

By: Blue

Blue — Thu, 23 Jun 2005 16:15:46 +0000

Property rights are non-existant now. We are people who are serants to the government, the government has swithced things around.