Did Kelo Leave Any Limits on Eminent Domain?

Jacob Sullum | October 27, 2006

A federal lawsuit filed yesterday by Brooklyn property owners and tenants promises to test whether Kelo v. New London, last year's Supreme Court case approving the use of eminent domain for economic redevelopment, left any meaningful limits on the government's authority to forcibly transfer land from one private owner to another. The majority in Kelo said the prospect of jobs and increased tax revenue can be enough to justify condemnation, but it suggested that officials need "a carefully considered development plan" and emphasized that they may not seize land "simply to confer a private benefit on a particular private party." The plaintiffs in the Brooklyn case, who are challenging a huge redevelopment project in Prospect Heights that relies on eminent domain, charge that the project was developed without a comprehensive plan, competitive bidding, or meaningful public input and that it is driven exclusively by the interests of the developer, the Forest City Ratner Company. "This is not merely favoritism of a particular developer in the classic sense," their complaint says. "Here, the 'favored' developer in fact is driving and dictating the process, with government officials at all levels obediently falling into line. This is precisely what the Fifth Amendment's Takings Clause forbids." Since the government no doubt will argue that the project mainly serves the public interest and only incidentally benefits Forest City Ratner, the case could indicate how deferential the courts will be following Kelo in reviewing the process by which public officials reach such determinations.

Comments

Paul|10.27.06 @ 3:38PM|#

Did Kelo Leave Any Limits on Eminent Domain?

No.

|10.27.06 @ 5:44PM|#

Did Kelo Leave Any Limits on Eminent Domain?
Not that I can discern. I guess it's up to the legslilative process to correct this fiasco. Years ago the Michigan State supreme court made a similar ruling. They have since reversed themselves, so there is some hope on that front. Google poletown for more info.

Robert|10.27.06 @ 5:45PM|#

I think they'll have to rule against the allowability of some taking sometime, maybe this one, just to show they meant it in the Kelo opinion.

|10.27.06 @ 6:42PM|#

This is what I've been calling for since the Kelo decision came out - a challenge based on the due process clause! There needs to be a real planning process - one that provide an adquate venue for the property owners to make their case - or it's a violation of the property owners' due process rights. And, if the public use the city is claiming is the implementation of a redevelopment plan that serves a public purpose, then the lack of a real public planning process, with adequate involvement of all of the relevant publics, means that that land isn't really being used for/by the public.

The Court completely failed to provide any guidance about how to deterimine if a plan, and the process that created that plan, satisfy the public use criteria. This is not surprising, because the Institute for Justice didn't ask the court to do that. They were completely negligent, allowing their clients to get screwed over rather than violate their ideological purity by acknowledging that there is such a thing as a legitimate planning process leading to a taking. It's pretty tough to argue that a certain plan didn't include a due process when you can't bring yourself to admit that such a thing exists.

Good for these plaintiffs. I hope they stop the greedy developers and this set of politicians suffering from an "edifice complex" from destroying the uniquenss of Brooklyn, and I hope some good case law comes out of it - something the planners can point to and tell the politicians, "No, you can't do that."

|10.27.06 @ 7:45PM|#

Did Kelo Leave Any Limits on Eminent Domain?

I agree, no.
The majority opinion ignored the clear intent and plain English of the Constitution, preferring the sorites of hair-splitting precedents, each one a little worse until the legal position is clearly absurd. The courts are likely to keep splitting hairs until they are splitting molecules, if not atoms. Any plan is enough to make it legal (whatever the judges may actually think).

|10.28.06 @ 3:48PM|#

developed without a comprehensive plan, competitive bidding, or meaningful public input and that it is driven exclusively by the interests of the developer, the Forest City Ratner Company.

Ok, I'll bite.

I don't think these people have a leg to stand on because of precedent. The SCOTUS basically said that any municipality must have a 'comprehensive plan'. Confoundingly, the SCOTUS then said that plan would not be judged by the court-- because it was not the purview of the court to judge any regional or localized plan.

In essence the courts logic boiled down to this:

Cities wishing to take properties for a "public purpose" may do so, so long as they've executed some numbers of studies and have a "plan"-- however, this court will not judge the plan based on its effectiveness or whether the intended results of the plan ever come to fruition.

This creates and incredibly steep, uphill battle for any attempt to thwart an E.D. taking for owners not wishing to sell. The burden of proof falls upon them to somehow prove that a plan was not in place or comprehensive enough to satisfy a public purpose. Given that the SCOTUS will not take the details of a plan into consideration, this places the petitioners quite literally between a rock and a hard place in defending their rights under the fifth amendment.

|10.28.06 @ 4:44PM|#

"they may not seize land "simply to confer a private benefit on a particular private party."

Oh, good: That means that the city council can't steal the entire waterfront to build homes for themselves. They can still, however, give it to thier brothers to develop, and build them houses as a byproduct.

|10.28.06 @ 9:21PM|#

"something the planners can point to and tell the politicians, 'No, you can't do that.'"

I see, so you planners don't want to ruin people's lives, but the evil politicians are making you do it! You want to leave people alone, that's why you became planners.

You know joe, if you're told to do something you don't agree with you could always resign. You could easily find honest work.

Its amazing how many members of criminal conspiracies try to completely absolve themselves of any culpability by pushing the blame to someone else. They aren't guilty even if they pulled the trigger, they were forced to do it by the leader, or they were passive participants along for the ride. It's pathetic, really.

|10.29.06 @ 11:28AM|#

Cities wishing to take properties for a "public purpose" may do so, so long as they've executed some numbers of studies and have a "plan"-- however, this court will not judge the plan based on its effectiveness or whether the intended results of the plan ever come to fruition.

This creates and incredibly steep, uphill battle for any attempt to thwart an E.D. taking for owners not wishing to sell. The burden of proof falls upon them to somehow prove that a plan was not in place or comprehensive enough to satisfy a public purpose. Given that the SCOTUS will not take the details of a plan into consideration, this places the petitioners quite literally between a rock and a hard place in defending their rights under the fifth amendment.

The courts may not be interested in the details of the plan, but in how the plan was arrived at. The most egregious abuses come about when an entrepreneur goes to the city council with a plan in mind, and the municipality just rubber stamps it. If the record shows that that's what happened, or if, even worse, someone discovers that private meetings took place in an attempt to disguise that that's what happened, I think that's just the type of case which would be overturned.

|10.29.06 @ 11:45AM|#

tarran,

First, fuck you for calling my work dishonest, without having the vaguest cluse about anything I ever did. It must nice to be an ideologue, and not have to know anything before you come to an opinion. For example, the long history of dissent between planning professionals and politicians about what constitutes good planning practice.

Second, "You know joe, if you're told to do something you don't agree with you could always resign." And the plan gets implemented by the next guy. The point here isn't to make me feel better - it's about putting limits on the power of the government. You're so eager to take a cheap shot at me, you abandon your principle of wanting limits on the government's power? Pathetic.

"Its amazing how many members of criminal conspiracies..." This is morally-superior, delusional attitude that caused the "Insitute for Justice" to leave the Due Process argument laying on the table, and allowed the people in New London to have their homes taken. But hey, at least they didn't feel like they backed down from their absolutist position, and that's what obviously matters to you.

matthew hogan|10.29.06 @ 12:47PM|#

As a good libertarian, I oppose almost all ideas of taking even for the best public uses with a plan vetted by Hayek himself, peace be upon him. Noentheless, the whole idea that the Fifth Amendment forbids taking except for public use is a judicial fabrication going well beyond the language of the Amendment. The Amendment merely says that if property is taken for public use the compensation must be just. It doesn't say anything in that Amendment about under what circumstances and with what justifications property may be taken only that it compensated justly WHEN it is a taking for public use.

|10.29.06 @ 6:16PM|#

joe:

Enough with the phony indignation. On a libertarian site, there are going to be a fair number of people who think that what you do for a living is actively harmful to people's rights, and the fact that you are paid by taxation makes you a thief, if at second hand. Deal with it. That similar criticisms could be made of "libertarian" scholars who work for public universities, or libertarian-leaning politicos who work on the staffs of elected officials is also true. Let he who is without "sin"...

Kevin
(had a summer job with my home county in my college-boy days, but I've reformed.)

|10.30.06 @ 8:16AM|#

Kevin,

If someone wants to share their feelings about me, I'm gonig to share mine right back.

Anytime we can get a conversation about facts and ideas going, that's even better.

|10.30.06 @ 8:53AM|#

Well, joe,

You and your gang have been fucking me, my family and my neighbors for quite some time, so one more "fuck you" from you really is not going to change anything.

You are right, however, that I know little of the travails you face in your job. To be honest, I don't care any more than I care about the problems a low level member of the Winter Hill Mob had to put up with. I judge you and your gang by its deeds. I've watched you guys extort people out of their homes, render their property useless to them by restricting their ability to build additions, charge them a multitude of little fees that slowly bleed them dry. The restrictions your gang places on building new housing causes massive shortages, causing the market price to shoot through the roof, which in turn drives your protection fees up, since you base it on these elevated market prices. I've watched neighbors sell their homes because they couldn't afford protection money to you, or they were denied permission to add a mother in law suite to their home. I've watched the so called traffic calming make the roads even more impassable. You guys are parasites.

As to your claim that if you quit the next guy would implement the plan, So what? Should I have joined a gang as a kid, because if I didn't they'd get someone else to burglarize houses? Please. You take the kings coin. It makes you his man, no matter how hard you try to pretend you are not.

Now let us turn to your attempts to lump me in with the Institute for Justice. First, I agree with you: in a court of law, it is dumb to leave an argument lying on the ground. However, if you are hoping that the Supreme Court will meaningfully limit government power, you are quite deluded. These are the same guys who chose not to overturn Wickard. To me, the Institute for Justice are nothing more than a group aspiring to be a speed bump to the growth of your gang. I wish them luck (they certainly aren't speeding things along any faster), but I am no means a fan.

Throughout the various threads on the subject of eminent domain, I have read your arguments with increasing disgust and contempt. You consistently have tried to paint yourself as being on the side of the victims, when in fact you are one of the victimizers.

So go ahead, and call me names all you want (so far we are up to loon and ideologue). Insults from someone like you are the sweetest of compliments to me. ;)

I now quit the field (I have to go and earn my living now). I am sure you will take some time of from your daily canvassing for the Democratic Party from your work computer to shout a few more imprecations my way. Please feel free.

|10.30.06 @ 9:04AM|#

You've got nothing. You've got no ideas, you've got no arguments, you've got no facts.

Just the sweet, sweet hatred that gets you through the day.

|10.30.06 @ 10:09PM|#

Yeah, no theory or facts. Right.

Incidentally, if you are going to accuse me of being an idelogue, doesn't that imply that I am wedded blindly to some theory which contradicts...

Never mind.