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February 23, 2005
Pardon me, You’re in My Kitchen: The Supreme Court and Eminent Domain
When you walk through the housewares section of your local Wal-Mart, remember that it used to be Maggie Smith’s kitchen, and she’s not happy you’re there.
Or at least there a fair chance the area used to be someone’s kitchen, or living room, or back yard.
Wal-Mart has been a common beneficiary of local governments using their power of eminent domain to seize private property for the economic advancement of the community. Wal-Mart is hardly alone, as communities across the country have found more and more reasons to seize private property for the enrichment of their citizens (except the property owners whose homes were taken).
The Supreme Court agreed yesterday to hear a typical case brought by a group of New London, Connecticut homeowners. The Supremes heard oral arguments yesterday.
It’s risky to jump to conclusions on the sentiment of the Court based on oral arguments. Here’s what some media outlets thought:
Striking an unusual populist tone, the Supreme Court appeared divided Tuesday over whether city officials in Connecticut have the authority to seize homes in a working-class neighborhood and turn the property over to private developers.
The Supreme Court appeared sympathetic Tuesday toward a group of New London, Conn., homeowners fighting to keep their land, but justices seemed equally skeptical of their own power to keep the city from seizing property to create an upscale development.It's the first major case on eminent domain -- the power of the government to condemn property for redevelopment -- to reach the high court in years.
An attorney for a group of Connecticut homeowners told the Supreme Court on Tuesday that his clients have a constitutional right to stay in their houses even though their city says it needs the sites for privately developed offices, hotels and parking, in a case that could affect property rights nationwide.The lawyer, Scott Bullock of the libertarian Institute for Justice, said that if New London, Conn., can use its power of eminent domain to force Susette Kelo and six other owners to sell for the sake of jobs and tax revenue that private-sector development brings, the Fifth Amendment guarantee that private property cannot be taken for "public use" without just compensation would be a dead letter.
If you think private property rights are important this may very well be the most important case facing the Supreme Court in our lifetime.
Posted by Jim at February 23, 2005 10:55 AM
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You beat me to it Jim. I've had my eyes on yesterday's hearing of Kelo v. City of New London for about a month now and have not had a chance to get to it. Thanks for broaching the subject and informing our readers!
Even though I'm a planner and do not necessarily think that property rights are sacrosanct (important yes, but the 5th Amendment does provide a due process clause), this case is absurd!
Tax sharing between cities and commercial developers has been around in California quite a while. Because of the state-local fiscal regime in this state (largely due to Prop 13), a developer will pit one city against another city and some cities have negotiated agreements to give a portion of the sales tax revenue generated by the project to the developer should they decide to locate in their jurisdiction.
One of the biggest impediments to bix-box retail is increasing paucity of sites large enough and suitable for the Super Wal Marts, Fry's Electronics, Costco's, etc., particularly within urbanized areas. If the Court rules against property rights in this case, the temptation for cash strapped local jurisdictions will be immense.
Big box commercial or industrial developers would come to a City Council and make an offer: "Give us these 25 acres and you will see X increment from property taxes and Y increase in sales and hotel tax revenue." The City will counter, "Yes, but what about the consituents we displace!" To that, the developer will say, "How about we give you $Z up front and $V each year to ease your worries?"
Our entire local government fiscal system is whack. It's perhaps the worst in CA because of Prop 13, but it seems to me that the most efficient and equitable system for any metropolitan area is one in which revenue is collected and distributed regionally.
Why have a system where it is in the City's best fiscal interests to condemn property for a Super Wal Mart?
Another thing this case reminds me of:
Cottonwood Christian Center v. City of Cypress. In that case, Cypress tried to use redevelopment powers of eminent domain to condemn land purchased by a church org for development of a mega church. The City wanted to build a Costco instead. What was their reason? Tax dollars and "economic development." Sham... The difference here is the Cottonwood folks were protected by the Religious Land Use and Instiutionalized Persons Act (RLUIPA).
Posted by: Rick Brady at February 23, 2005 11:46 AM
Yes. Wal-Mart = bad.
Posted by: Matt at February 23, 2005 12:25 PM
I was discussing this (not the case, but the issue as a contrast between Minnesota and Florida) with a project manager for Seminole County, FL yesterday.
He told me that in Florida, a state law mandates that the state pay for a property owner's attorney should that property owner wish to challenge eminent domain. Apparently, if your plot of land is being subject to eminent domain, property owners are immediately flooded with advertisements from lawyers seeking to represent them in a case against the state. The property owner loses nothing since the State pays for the litigation and the "trial lawyers" make money.
Looking at two bad Democrat policies (Minnesota: condemn and build vs. Florida: condemn and litigate) I'll take Florida's...at least the little guy is insured protection. Even as I detest the mobile home down the road from me with his unkempt land...Dang IT! That's HIS piece of the ROCK! Not Wal-Marts, or anyone else's (unless we need a new toll road in Orlando...something that is a legit eminent domain need here).
I'm a bit liberterian...but conservative on social issues. So, anything to protect property rights is ok by me. Eminent domain for infrastructure, not tax dollars and retail.
Make Wal-Mart and Costco pay the land owners a price they can't refuse. That is capitalism.
Posted by: skibrian at February 23, 2005 12:48 PM
GOLD HILL BAPTIST CHURCH ENGLAND
BTW--
Reminds me of my wife's country too...England. Guess what...even if you WANT to sell your property to Asda (aka Walmart) or Tesco (grocery store), or to the Airport Authority (for Heathrow's runway) you CAN'T! Green laws prevent the building of new structures on empty land.
Gold Hill Baptist Church of Gerards Cross, Buckinghamshire, England owns a huge plot of land and CANNOT build on it because they have so many permits to obtain and hoops to jump through (the preacher there married me: www.goldhill.org )
How's that for an interesting twist on eminent domain?? Obviously the 5th ammendment and the rest of our laws aren't in force over there! But for the sake of academic interest...thought I'd share with you some other perspectives.
Posted by: skibrian at February 23, 2005 01:13 PM