Eminent Domain
Oklahoma Chapter American Planning Association

OKAPA Home

     

Current discussions on eminent domain:

The Ohio State Supreme Court has taken up the first big eminent domain case since Kelo, a case called Norwood v. Horney.  Along with legislation introduced in many state houses this month, Norwood will be a critical part in an emerging new approach to eminent domain in America.

Reason Foundatons's legal policy analyst David Owsiany takes a closer look at the Norwood case in States Left to Respond to Eminent Domain Abuse, and Reason senior editor Jacob Sullum looks at the conflict that led to the case in The Adventure of the Norwood Builder.  Sam Staley asks the more general question about eminent domain, Has the Supreme Court Killed Capitalism?.

For daily news and commentary on policy issues, see Reason Foundation's weblog -Out of Control- at  http://www.reason.org/outofcontrol

 

Eminent Domain, Private Property, and Development - An Economic Development Analysis  (Feb 2005)

By Samuel R. Staley, Ph.D. and John P. Blair, Ph.D.

Project Director: Adrian T. Moore, Ph.D

"Eminent domain is the power governments have to confiscate, or take, private property as long as it is for a legitimate “public use” and property owners receive “just compensation.” Whereas eminent domain was initially intended to ensure that public services, such as roads and highways, were available to the public, local and state governments often use eminent domain for any project that is considered economically beneficial. Public use, as a practical matter, has morphed into a more ambiguous “public benefit.”

"An estimated 10,000 cases between 1998 and 2002 involved projects where private parties benefit substantially from government seizures of property under the banner of economic development or urban redevelopment.

"The result of this broadening discretion may be exemplified by Kelo v. City of New London, a case before the U.S. Supreme Court in which property owners are challenging the decision of New London, Connecticut to seize their homes because the city decided redevelopment for commercial purposes would generate higher property values and taxes."

See full text:  Report on Eminent Domain and Economic Development

^ top

Comments by Paul Farmer, APA Executive Director:

The release of the Kelo decision in late June, 2005 was the fourth, and last, release of a Supreme Court opinion this year in cases where APA had filed an amicus brief.  APA has never before filed four briefs in a single term.   In two of those cases—Lingle and San Remo—the court’s decisions were 9-0.

APA believes that the ruling upheld a long-standing legal principle that eminent domain could be used for economic development (APA's brief cited examples such as canals.)  This decision clarifies the law, it does not expand it.  This was missed by many headline writers and quite a few journalists.

 The Court (as it did in Tahoe a couple of years ago) relies heavily on planning—both the comprehensive plan and the planning process.  The Court places great weight on planning and the planning process; it shows great confidence in planners; it requires that we be up to the task.

 One of the attorneys who drafted the APA brief says that the court has provided “a blinking, yellow light.”  It’s not a green light and it’s not giving anyone permission to run roughshod over anyone’s rights.

The Institute for Justice (the libertarian think tank that financed Kelo’s case and the PR campaign) has made it clear that it will next go the state legislatures and the state courts.  We will need to work in partnership with our chapters and attorneys state by state.  Jason and his staff are poised to provide assistance.  (I would like to acknowledge the work of Jason, Lora Lucero and Roberta Rewers, particularly, as they have shepherded this process over many months.)

Kelo was not only a close, 5-4, decision by the Court, it was a close decision for APA.  There are abuses of eminent domain.  They need to be curtailed.  I think the Court’s decision will make it easier for our planners to curtail abuses and prevent abuses.  It’s the planners who typically call for open, transparent, inclusive democratic processes.  Often, some elected officials and economic development types want to make the decisions behind closed doors.  Another concern was that if economic development had been found not to be a valid use but blight removal was still valid (an issue not before the Court in this case), then it would have tilted the playing field even more against low-income and minority communities where blight can be shown more easily.  In this respect, Justice Thomas has this point all wrong in his dissent

Any newspapers, too, are getting it wrong with sensationalist headlines. Linda Greenhouse, a terrific legal reporter for the NYT, probably wrote the best article.  Their headline writers, too, got it right:  “Justices Uphold Taking Property for Developing:  Case of Eminent Domain:  Clarifying the Power of Government to Seize Private Land for ‘Public Use’ “.

We should also note the 9-0 decisions in Lingle and San Remo (both described on our web site.)  Not only were the 4 dissenters in Kelo on board, O’Connor, who wrote the stinging dissent in Kelo—wrote strongly in favor of limitations on regulatory takings.  She makes it clear that the “Agins mischief” needs to end.  “To day we change course” she emphatically wrote for the Court.  Lingle should be required reading for planners.

 Are there some bottom line conclusions?  Yes.

While properly based regulations are now less susceptible to successful takings challenges, the actual seizure of property will be very, very carefully examined for its public purpose.  The Supreme Court flatly refused to introduce a new and stricter test, something that even some APA members had urged in their own Amicus brief.  Instead, the Court deferred to the states and so we can expect the next battles to be at the state legislatures and in the state courts.

Of course, Justice Stevens, who wrote the majority opinion, is 85.

APA was one of only two organizations mentioned in USA Today, the most widely read US newspaper.  You will remember that we were also the organization chosen (from some 60 that filed amicus briefs) to write the editori9al opposing that of the USA Today editorial board.

These 4 decisions make this arguable the most significant Supreme Court term of the last quarter century.  They call for a lot of continuing education here for our members and others.  Everyone needs to understand these decisions and how we need to improve our planning processes and our plans. 

APA Amicus Brief - Kelo - http://www.planning.org/amicusbriefs/kelo.htm

Guide to Eminent Domain and Kelo v. City of New London - http://www.planning.org/amicusbriefs/emdomain.htm

APA National Conference, April 2006.  APA will be examining the cases in our publications over the next few months and will have an entire track on property Rights scheduled for the San Antonio Conference next April.

 http://www.planning.org/2006conference/sessionproposal/index.htm

 

     

OKAPA Home          Legislative Issues

^ top