US: Justices Uphold Taking Property for Development

The 5-to-4 decision cleared the way for the City of New London,
Conn., to proceed with a large-scale plan to replace a faded
residential neighborhood with office space for research and
development, a conference hotel, new residences and a pedestrian
"riverwalk" along the Thames River.

The project, to be leased and built by private developers, is
intended to derive maximum benefit for the city from a $350 million
research center built nearby by the Pfizer pharmaceutical company.

New London, deemed a "distressed municipality" by the state 15 years
ago, has a high unemployment rate and fewer residents today than it had
in 1920.

The owners of 15 homes in the Fort Trumbull neighborhood, including
one woman who was born in her house 87 years ago and has lived there
since, had resisted the plan and refused the city's offer of

After the city condemned the properties in November 2000, the
homeowners went to state court to argue that the taking would be
unconstitutional. The Connecticut Supreme Court upheld the use of
eminent domain in a ruling last year.

In affirming that decision, the majority opinion by Justice John
Paul Stevens resolved a question that had surprisingly gone unanswered
for all the myriad times that governments have used their power under
the Fifth Amendment to take private property for public use. The
question was the definition of "public use."

The homeowners, represented by a public-interest law firm, the
Institute for Justice, which has conducted a national litigation
campaign against what it calls eminent domain abuse, argued that taking
property to enable private economic development, even development that
would provide a public benefit by enhancing the tax base, could never
be a "public use."

In its view, the only transfers of property that qualified were
those that gave actual ownership or use to the public, like for a
highway or a public utility.

But the majority concluded on Thursday that public use was properly
defined more broadly as "public purpose." Justice Stevens noted that
earlier Supreme Court decisions interpreting the public use clause of
the Fifth Amendment had allowed the use of eminent domain to redevelop
a blighted neighborhood in Washington, to redistribute land ownership
in Hawaii and to assist a gold-mining company, in a decision by Justice
Oliver Wendell Holmes in 1906.

"Promoting economic development is a traditional and long accepted
function of government," Justice Stevens said, adding, "Clearly, there
is no basis for exempting economic development from our traditionally
broad understanding of public purpose."

In a dissenting opinion, Justice Sandra Day O'Connor objected that
"the words 'for public use' do not realistically exclude any takings,
and thus do not exert any constraint on the eminent domain power."

Justice O'Connor said, "Under the banner of economic development,
all private property is now vulnerable to being taken and transferred
to another private owner, so long as it might be upgraded."

Justice Stevens, examining the New London plan in light of the
majority's general analysis, said the plan "unquestionably serves a
public purpose," even though it was intended to increase jobs and tax
revenue rather than remove blight.

He described the plan as "carefully formulated" and comprehensive.
Sounding a federalism note, Justice Stevens said that state
legislatures and courts were best at "discerning local public needs"
and that the judgment of the New London officials was "entitled to our

Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy
and David H. Souter joined the majority opinion in Kelo v. City of New
London, No. 04-108. Justice Kennedy also wrote a separate concurring
opinion to emphasize that while there was no suggestion in this
instance that the plan was intended to favor any individual developer,
"a court confronted with a plausible accusation of impermissible
favoritism to private parties should treat the objection as a serious
one and review the record to see it if has merit."

Justice O'Connor's dissenting opinion was joined by Chief Justice
William H. Rehnquist and by Justices Antonin Scalia and Clarence
Thomas. She wrote that rather than adhering to its precedents, the
court had strayed from them by endorsing economic development as an
appropriate public use.

"Who among us can say she already makes the most productive or attractive use of her property?" Justice O'Connor asked.

She added: "The specter of condemnation hangs over all property.
Nothing is to prevent the state from replacing any Motel 6 with a
Ritz-Carlton, any home with a shopping mall or any farm with a factory."

Both Justice O'Connor and Justice Thomas, who also filed his own
dissent, said the decision's burden would fall on the less powerful and

"The government now has license to transfer property from those
with fewer resources to those with more," Justice O'Connor said. "The
founders cannot have intended this perverse result."

Justice Thomas, who called the decision "far reaching and
dangerous," cited several studies showing that those displaced by urban
renewal and "slum clearance" over the years tended to be lower-income
minority residents.

"The court has erased the Public Use Clause from our Constitution," he said.

In the majority opinion, Justice Stevens said, "The necessity and
wisdom of using eminent domain power to promote economic development
are certainly matters of legitimate public debate."

The court did not "minimize the hardship that condemnations may
entail," he said, despite the fact that the homeowners will receive
"just compensation."

Justice Stevens said that states remained free to place restrictions
on their own use of eminent domain power through their own
constitutions and laws, as many have; California, for example, has a
law restricting to blighted areas the use of eminent domain for
economic development.

Scott G. Bullock, the lawyer who argued the case for the New London
homeowners, said in an interview that his organization, the Institute
for Justice, would accept the court's invitation and "continue the
fight in the state supreme courts." As a result of the decision, he
said, "we are going to see more eminent domain abuse and a growing
grass-roots rebellion against this type of government action."

Allan B. Taylor, a partner in the Hartford law firm Day, Berry &
Howard who filed a brief on New London's behalf for the Connecticut
Conference of Municipalities and organizations of cities in 31 other
states, said an opposite outcome in this case would have ushered in an
"extraordinary revolution."

If the court had not upheld the Connecticut Supreme Court, he said
in an interview, "it would greatly limit what cities and towns all over
the country could do." Mr. Taylor said he read the opinion not as a
green light for the wholesale use of eminent domain, but as "a green
light for continuing to do careful and responsible planning."

The decision was a clear defeat for the long-term effort by Chief
Justice Rehnquist and Justice Scalia to limit government control over
private property. Although a series of decisions from the mid-1980's
through the early 90's had appeared to indicate a major shift in the
court's traditional deference to government land-use policies, that
effort has stalled in recent cases.

By the same token, the decision was the latest success for Justice
Stevens, the 85-year-old senior associate justice, who appears to be
having one of the most productive terms in his 30 years on the Supreme

The New London case was among the final decisions the court was
expected to make in this term. The court indicated that Monday would be
the final day of the term.

AMP Section Name:Human Rights
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