July 1, 2005

Commentary

The Government Took Susette Kelo’s Home: Is Your Home Next?

By Nicole Schiereck

Last week, the US Supreme Court handed down a decision that gives local governments unlimited power to take homes and businesses and give the land to private developers for their own private profit. In Kelo v. City of New London, the Court allowed the city of New London, Connecticut to take the homes of Susette Kelo and several other city residents, and give their land to a private company to build a commercial center, even though the federal Constitution only allows government to condemn property for “public use.”

None of the homes taken by the city were an eyesore or in severe disrepair. They were condemned simply because they were located in an area where the city wanted to see more development. City officials reasoned that more development would generate more tax revenue for the city.

City officials invoked the power of eminent domain, a legal term meaning the government’s authority to force people to sell their homes for a price the government decides is “fair,” and ordered Ms. Kelo and her neighbors, several of whom have lived in their homes for nearly 60 years, to give up their land.

What happened to Ms. Kelo and her neighbors in Connecticut is currently happening across the country. Both local and state governments are increasingly using the power of eminent domain to create opportunities for private developers, oftentimes with complete disregard for the concerns of homeowners and small business owners. From Ohio to California, governments have decided that a private developer, not a homeowner, can create the “best” use of a property. Governments then use the power of eminent domain to complete the transfer of property from one private landowner to another, essentially stripping homeowners of any legal right to keep their property, and granting the new owner a giant financial windfall.

In a 5-4 decision, the Court held that cities across America can take private property from one person and give it to another in the name of “economic development.” But if you think about it, nearly every imaginable project a city could undertake could be plausibly described as economic development. A city can designate a neighborhood as a development area, take the homes and hand the land over to a private developer. In a few years, a fancy hotel, a new business park, even a manufacturing plant could be sitting where your home used to be based on the Court’s extreme theory.

Some cases of “economic development” are truly absurd. The city of Las Vegas recently condemned a clean, privately owned shopping center to build a parking lot for the “Fremont Street Experience,” which includes topless bars and casinos. An Arizona city tried to take a small brake-repair shop to give the land to a hardware store instead. And in Merriam, Kansas, city officials condemned a Toyota dealership to transfer the property to a BMW dealer, to give the town a more fashionable image.

But even though the Constitution states that property may only be taken for “public use,” and not for a private use at all, the Supreme Court held that these kinds of condemnations are perfectly okay.

So much for “a man’s home is his castle.” After last week’s decision, even if you have lived in your home for 30 years, the government can condemn your property and let Costco build a store on it. If the government decides a Wal-Mart’s parking lot would bring in more tax revenues than your home, you had better start packing your things.

How do we stop this abuse?

The Supreme Court acknowledged in Kelo that state governments can enact more restrictive measures to limit the eminent domain power each state can wield. California, for example, already has a law that only allows cities to take land for economic development purposes if the area has been designated as blighted. But because the term “blighted” is not defined, it is all too easy for cities to declare that even clean and productive land is “blighted.”

After the Kelo decision, only state law can protect homeowners and small business owners from the abuse of eminent domain. Without the protection of a state law that says “public use” actually means use by the public, your home may be next.

Nicole Schiereck is a law clerk at Pacific Legal Foundation, a nonprofit public interest legal organization based in Sacramento, California. www.pacificlegal.org. PLF’s brief in the U.S. Supreme Court argued that the City of New London’s expansive use of eminent domain violated the Fifth Amendment of the U.S. Constitution.

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