WASHINGTON _ The U.S. Supreme Court appeared unreceptive in late February to arguments by property-rights advocates to rein in the use of eminent domain by municipalities that take land and turn it over to private companies for economic development.
Most of the justices who participated in questioning during a closely watched test case sharply challenged a lawyer representing a group of homeowners in New London, Conn., who are fighting condemnation actions by a city-chartered corporation.
The New London Development Corporation wants the 15 parcels in question to make way for planned residential and commercial development to create jobs and add to the financially distressed city's tax base. Representing the homeowners, lawyers from the Washington-based Institute for Justice, a libertarian litigation center, say that the Fifth Amendment's Takings Clause allows the government to take property by eminent domain only for a “public use,” not a private use.
“Every city would like to have more tax revenue,” Scott Bullock, a senior attorney with the institute, told the justices, “but that cannot be a justification for taking private property.”
Justices ranging from moderate-conservative Sandra Day O'Connor to liberals David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer all voiced doubts, however, about court-imposed limits on eminent domain.
O'Connor noted that the high court's most relevant precedent - upholding slum clearance in Washington, D.C., in 1954 - treated as “virtually conclusive” a legislative determination to take property. “What kind of standard are you suggesting we get into to second-guess the legislative determination?” O'Connor asked with evident skepticism.
“There have to be limits,” Bullock answered - only to be sharply contradicted by Breyer. “Why does there have to be a limit?” Breyer asked. “Virtually any taking has public benefit.”
Representing the city, Hartford, Conn., attorney Wesley Horton played on the justices' doubts during his turn to argue. “There is no principled basis for a court to make an essentially legislative judgment” about the value of a specific use, Horton said.
Among the seven justices on the bench, only conservative Antonin Scalia was vocally supportive of the property owners' efforts to block the condemnations. “This lady doesn't want to move,” Scalia said of the lead plaintiff, Susette Kelo. “That's an objection in principle that the 'public use' requirement seems to be addressed to.”
O'Connor, Breyer and moderate-conservative Anthony M. Kennedy, however, raised the possibility of paying homeowners compensation above market value when forced off their properties for private development. “It does seem ironic that 100% of the premium goes to the developer and the city, and not the owner,” Kennedy said.
Two members of the court were absent for the argument: Chief Justice William H. Rehnquist, who has thyroid cancer, and Justice John Paul Stevens, whose flight from his home in Florida was canceled. Stevens has generally supported municipal governments in land use cases in the past.
Rehnquist and Justice Clarence Thomas, who was customarily silent during the argument, have been supportive of property rights claims in earlier cases. But adding their presumed votes to Scalia's would still leave the New London homeowners short of a majority.
The case has its origins in the 1998 decision by Pfizer pharmaceutical company to locate a new global research facility on reclaimed brownfields bordering the Thames River and the New London harbor. City officials saw the move as an opportunity to develop high-end residential and commercial developments in the adjoining Fort Trumbull neighborhood, a densely-packed working-class neighborhood.
The City Council approved a seven-part plan in January 2000 calling for construction of a hotel, office buildings, 80 residences and some public spaces. With $70 million in state funding, the development corporation carried out various planning and preparatory activities and acquired most of the 115 parcels slated for the site. Horton acknowledged to the justices that the “voluntary” transactions were “facilitated” by the threat of eminent domain.
Homeowners from six families and a private company challenged the condemnations in late 2000. The Connecticut Supreme Court ruled for the city in March 2004, saying that any private benefit was incidental to the public use. The Supreme Court's decision to hear the case brought forth about three dozen amicus briefs from property rights groups and others supporting the homeowners, and municipal and planning groups backing the city.
A decision is due by the end of June. The case is Kelo v. City of New London, No. 04-108.
Contributing Editor Kenneth Jost, a former editor of the Los Angeles Daily Journal, is Supreme Court editor for CQ Press.