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The expanded power to condemn

Those of you who have been following of this column may recall a prior column on the law of eminent domain. Recapping briefly, “eminent domain” is the power of the government to take (that’s right, take — as in it’s mine now and not yours) private property for the public use. The exercise of eminent domain extends through all levels of government: federal, state and municipal.The power of eminent domain is founded in both the federal and state constitutions. The Fifth Amendment of the federal Constitution speaks to eminent domain. What the Fifth Amendment says is this: “No person…shall be deprived of life, liberty or property without due process of law; nor shall private property be taken without just compensation.” That’s it, the Constitution devotes all of nine words (or maybe 20, depending upon how you’re counting) to the subject of eminent domain and does so in sort of a presumptive, backdoor manner. What I mean by that it this; the wording of the Fifth Amendment presumes that private property may be taken for the public use and assures, simply, that when it is, the owner must be fairly compensated. There is assurance, too, that the property may not be taken without “due process” of law.A moment, then, to discuss “due process.” “Due process of law” means simply this; the law applied in its regular course of administration through the courts. Focus, if you will, on each word separately: “due” meaning just, proper, regular or sufficient and “process” meaning the means by which a thing proceeds. Patching the two words back together, “due process” means regular or sufficient processing of a matter through the ordinary administrative procedures of the courts.OK, you’re thinking, all well and good, but what about the title of this column? What does eminent domain have to do with condemnation? Well, condemnation is the power of eminent domain exemplified. Condemnation is the process of taking private property for the public use through the power of eminent domain. If eminent domain is the dueler’s foil, the condemnation is the thrust and parry. Eminent domain is the power to take and condemnation is the application of that power.Traditionally, the power of eminent domain has been applied for the “public good.” The exercise of eminent domain is how the government acquires land for such purposes as constructing highways, building airports, or implementation of such public benefits as light rail systems. This is also why, in significant part, such public projects often cost a king’s ransom to complete; much of the cost involved is that associated with buying-out the private property owners for “just compensation.”What’s new, though, are two troubling trends. First, many jurisdictions have recently been incautious in reaching the determination that the taking is “necessary” (rather than merely “desirable” or “expedient”) in condemning private land. Although, traditionally, private property could only be expropriated when the taking was necessary for the public welfare, more and more takings have occurred not out of necessity but out of the desirability of a certain parcel for the public use. More sinister, though, is the recent United States Supreme Court decision in Kelo v. City of New London.In Kelo, in a 5 to 4 decision, the Supremes ruled that local governments may force property owners to sell out to make way for private economic development when government officials decide it would benefit the public, even if the property is not blighted and the new project’s success is not guaranteed. This is a shift of tectonic proportions. The new decision provides that private property may now be taken, not to make way for, say, a public airport, but instead, for a Wal Mart, or a private condominium development, a casino, or whatever else may be deemed to stoke the economic engine.The Kelo decision provided the strong affirmation that many state and local governments had sought for their increasing use of eminent domain for urban revitalization. Opponents argued that forcibly shifting land from one private owner to another, even with fair compensation, violates the Fifth Amendment, which prohibits the taking of private property by government except for “public use.” But Justice John Paul Stevens, writing for the majority, cited cases in which the court has interpreted “public use” to include not only such traditional projects as bridges or highways but also slum clearance and land redistribution. He concluded that a “public purpose”, such as creating jobs in a depressed city, can also satisfy the Fifth Amendment.Specifically, the issue with which Kelo dealt was a proposal by the City of New London, Connecticut to convert 90 acres of waterfront land in the neighborhood of Fort Trumbull into office buildings, upscale housing, a marina and a research center for the pharmaceutical behemoth, Pfitzer. Suit was brought by 15 homeowners who lived on a portion of the property and had refused to be bought out by the developers. One of them, Susette Kelo, had extensively remodeled her home and wanted to stay for its view of the water. Another, Wilhelmina Dery, was born in her house in 1918 and has lived there her entire life. The City argued that the redevelopment plan was in the public interest insofar as the project was expected to create new jobs and, when completed, would generate substantial property tax revnue.The Connecticut Supreme Court upheld the city’s plan, so the homeowners, represented by lawyers from the Libertarian Institute for Justice, appealed the case to the U.S. Supreme Court. According to the Institute, the New London plan, which the City approved in 2000, is typical of “eminent domain abuse,” which has spawned more than 10,000 threatened or filed condemnation actions involving transfers of property from one private party to another in 41 states between the years 1998 and 2002.Justices voting with the majority included Stevens, Souter, Bader-Ginsburg, Breyer and Kennedy. Voting against the majority were Chief Justice Rehnquist and Justices Scalia, Thomas and O’Connor. The import of the split is obvious in that Sandra Day O’Connor has already given notice of her retirement and Chief Justice William Rehnquist will likely soon retire owing to his failing health. What had been a close decision in Kelo may, with two new justices, become a solid majority or, as the two staunchest conservatives on the Court, Scalia and Thomas, voted in opposition and, as it likely that, in addition to Judge John Roberts, President Bush will appoint another conservative, this dangerous foray into condemnation for private use may soon be arrested.For the time being, though, as Justice O’Connor wrote in her dissent, 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.” She went on to write that the majority had tilted in favor of those with “disproportionate influence and power in the political process, including large corporations and development firms.”Not a good thing, I think, for free and private ownership, unfettered by the tentacles of encroaching governmental avarice.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Mr. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Mr. Robbins may be reached at 926-4461 or at his e-mail address: robbins@colorado.netVail, Colorado


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