Kelo Makes Strange Bedfellows, Part 234

Reason Contributing Editor Carolyn Lochhead, who covers D.C. for the San Francisco Chronicle, has this great piece about trans-partisan alliances following the Kelo decision on eminent domain:

Rep. Maxine Waters, a liberal Democrat from South Central Los Angeles, and Rep. Richard Pombo, a rock-ribbed conservative Republican from rural San Joaquin County -- who rarely join forces on any issue -- were among a group that introduced a bill to cut off federal funds for cities that use eminent domain for [Kelo-type] projects [in which private property is seized by the state and then turned over to private developers].

"Democrats and Republicans, conservatives and liberals are going to be organizing behind opposing the Supreme Court decision,'' Waters said. "It's like undermining motherhood and apple pie. I mean, people's homes and their land -- it's very important, and it should be protected by government, not taken for somebody else's private use."

Whole thing here.

Comments

[Mark P Neyer]

Call me crazy, but I'm not sure if I like this solution.

[ChicagoTom]

Im sure they have thought this through rather completely. What could possible go wrong?

[db]

Because what we need more of is the Federal Government controlling local issues with strings attached to handout money.

[Damon]

I'm uncomfortable with it too, but what else can be done? I doubt that there will be enough support for an amendment.

We're in a political quagmire, and all of us are knee deep in the sludge.

[alkali]

State/local government exercises eminent domain:

1) to build railroad spur that primarily services a privately-owned coal field.

2) to acquire part of an "economic development park" that will be leased at below market rates to private parties.

3) to build exit from highway to privately-owned football stadium.

4) to acquire easement for privately-owned natural gas pipeline.

Which of these are OK?

[MP]

#3

[alkali]

MP: Why? (What's your rationale?)

[db]

alkali:

None of the above.

1) is the responsibility of the coal mine. The normal access easement to the property that the coal yard is located on should be enough to establish a rail spur, perhaps enhanced with a small purchase from the bordering landowner(s).

2) is pretty obviously an invalid use of ED.

3) is more complicated, because it involves alleviating congestion on government owned local roads due to a large private construction. This should have been addressed during the siting/zoning discussions with the potential stadium owner, requiring the owner to put some amount into acquiring land for proper access.

4) is a utility issue; again, in most places, an entirely privately-owned concern. I'm not certain about how most of these easements work, but I'm pretty sure that they typically do not cross houses and buildings. A gas pipeline can be routed through a property, but it would take a particularly devilish person so suggest that is _has_ to go through John Doe's house.

[alkali]

db:

1) Anyone can use the railroad spur (though they probably wouldn't care to). So what's the problem? It's for public use.

2) What's wrong with this? The government owns the property.

3) If it's more complicated, how is the federal court supposed to decide if it's OK or not?

4) So if it crosses a farmer's field it's OK, but if it goes through his house, it's not? What about his barn? What about electrical lines? Does it matter if the utility is municipally owned?

[MP]

I see "public use" as meaning that the property is to be deployed in such a way that members of the general public can equally utilize it. Now, "equal" is still rather nebulous, as you'll always have variations in terms of ability to pay. But in essence, the ability of the public to use the property is key. I don't accept that it means that the property has to be useful to the public, such as its revenue generating potential (Kelo) or its ability to enhance the value of the surrounding neighborhood (blight).

I entered a long debate on this thread, that led me to that conclusion.

[db]

alkali:

1) The only people who can use a railroad spur are those authorized by the owner. Who owns and maintains the rail spur? Most railroads are owned not by municipalities, by private concerns.

2) Okay, so logically what's to stop the government from taking all privately owned property in the country and leasing it back to the former owners (other than armed rebellion)?

3) Courts exist because (evidently) no law as written is so easily and clearly understood as to require no clarification after its enactment. It's only complicated because it's hard to see at first that it's the stadium owner's fault that the congestion was caused (as opposed to, say, simple increase in population).

4) The traditional understanding of utility easements allows for these things to cross private property. I have a friend whose father owns a consulting engineering firm which does a large amount of its business in this area, obtaining easements for power lines. I recall a case they had about 8 years ago, trying hard to get permission to run a line through a rural area in PA; there were many holdouts. As far as I know, it was entirely handled through peaceful (read: no use of ED) negotiations. It can be done.

[Rich Ard]

I can only speak to #4 - in order for the easement to exist, a property owner at some point must have executed it; they generally don't run through or under improvements existing on real property (because if they need access to the easement, the beneficiary of the easement may be able move your house, barn, etc.) Further, if a municipality acquires a utility, those easements (I believe) would pass on to them as the new dominant estate.

Or do you (alkali) mean using ED to acquire the easement for a purposes of leasing it back to the utility company?

[Rich Ard]

...a property owner at some point must have executed it...

Given the topic at hand, I suppose it's clear that "must have" should read "hopefully".

[alkali]

db:

1) I assumed the government owned it. I can't say whether that is typical; I believe that at least some railroad lines are owned by the government.

2) Democracy?

3) So whether the state can use ED to build the link will depend on a "battle of the experts" about traffic patterns?

Rich Ard: the second thing, although maybe the easement could be conveyed outright rather than through leasing.

To clarify a bit, I'm not very comfortable with the decision in Kelo, but it's not obvious to me what the alternative rule would be. Lots of property takings, including many traditional reasons for eminent domain takings, can readily be characterized as takings for both public and private uses. Making up some rule that will turn into a federal court "black box" does not seem like a good alternative to letting state and local governments do what the voters permit them to do. If someone has a workable rule in mind, I would be interested to hear it.

[MP]

joe's re-interpretation of my stance into this three prong test:

Either the government must own the land and what gets built there, or the private party that owns the land must provide for the physical occupation of the land by the government/public, or the private party must provide a service that the entire public can utilize.

is something I tend to agree with as being a workable rule that preserves the integrity of the "public use" clause.

[Rich Ard]

Since easements for private utilities are generally purchased by the utility from the landowners, that's kind of outside this debate.

[alkali]

MP: Some quibbles aside, that's pretty good. I wonder what the IJ was proposing to the Court as a rule in Kelo? (I suppose I could look at the briefs myself, but that would require actual work.)

[R C Dean]

I dunno, the proposed legislation strikes me as a no-lose deal:

Either the states and locals cut back on their current seizure binge

or

The feds cut back on funding states and locals.

Both of these are good outcomes. What's not to like?

[Isaac Bartram]

db at July 1, 2005 12:09 PM

I guess I go along with this since I have more problems with the handout money in the first place than with any strings attached to it.

So I concur with R C Dean at July 1, 2005 02:00 PM.

[mobile]

Now all we need is someone to step up and introduce the bill to withhold federal funds from all cities that do not exercise eminent domain.

[Highway]

What's even worse about the #3 (freeway exit ramp for private stadium) example I know of - FedEx Field outside DC - is that the ramp and road are closed to traffic at all times, except for stadium events. Of course, I can't speak for certain whether any of the land for that road was condemned, or all sold willingly. But you can't necessarily rule out the force of the threat of condemnation even in a 'willing' sale.

[MyNameIsAsh]

A law to weaken another law. These politicians "have the best of intentions" but it won't work...

[Manuel Garcia O'Kelly Davis]

Alkali:

Is trick question, dah? In free country, government may never take land without consent of owner.

[joe]

alkali,

That depends on the defition of the term "OK." If OK = "Allowable under the federal Constitution," all four are OK, or at least could be, depending on the details.

MP, do you realize that the "three part test" you endorse - one I wrote up to encapsulate somebody else's position - allows the taking of a private home to build a self-serve, privately-owned gas station? Like the grist mills of old, anybody can use it.

[joe]

A general rule of thumb for city planning related issues: any solution that looks like an obvious, harmless, pain free method of solving a problem is going to bury you in unintended consequences. If solving the problem isn't reminiscent of picking your way through a briar patch, you're missing something, and you're just asking for trouble.

Another rule of thumb: the press always gets the story wrong. It doesn't matter how many times you explain it to them. They're going to get it wrong. In the linked story, I count at least distinct explainations of what the bill would forbid.

[joe]

"...at least three distince explanations..."

[MP]

MP, do you realize that the "three part test" you endorse - one I wrote up to encapsulate somebody else's position - allows the taking of a private home to build a self-serve, privately-owned gas station? Like the grist mills of old, anybody can use it.

Yes, I do realize that. After the debate on this thread, I came to the conclusion that "public use" has to include takings for certain privately owned operations, such as retail facilities. I may not like that, but trying to exclude it results in my own warping of the phrase "public use" to fit my desires instead of accepting a very plausible originalist definition of the phrase.

I still think Kelo was wrongly decided, as the usage of the seized property in New London is not "public use".