The Battle for Property Rights

Susette Kelo didn’t plan to lend her name to a grass-roots revolution when she and six neighbors took on New London, Conn., over plans to raze their modest homes and redevelop the waterfront property as a hotel, office park and “urban-style” townhouses.

“I was in this battle to save my home and, in the process, protect the rights of working-class homeowners,” Kelo, a registered nurse, said of the U.S. Supreme Court fight she lost last month on a 5-4 vote.

Public outrage at the ruling has seen most states take up the battle cry for private-property rights. Connecticut Gov. Jodi Rell asked cities and counties to forestall condemnation for private development until state legislators reconsider how and when to use eminent domain.

“It’s the 21st-century equivalent of the Boston Tea Party,” says Rell.

The high-stakes legal fight centers around the Fifth Amendment requirement that private property not “be taken for public use without just compensation.”

In Kelo’s case, the Supreme Court was asked to decide if “public use” includes any property taken for public purposes, such as private economic development, and not just land designated as “blighted areas” that the court opened to eminent domain 50 years ago.

Five justices agreed that public use can include private projects that add jobs and tax revenues. But Justice John Paul Stevens, writing for the majority, cautioned that nothing in the Constitution precludes states “from placing further restrictions (on) the exercise of the taking power.”

And so to the states is where the eminent-domain fight has shifted.

Kelo’s attorney, Scott Bullock of the Washington-based Institute for Justice, said his client’s case “will not be the last word” and noted that state Supreme Courts have begun revising and reversing eminent-domain rules.

Most prominent is Michigan: In 1981, its Supreme Court ruled it “in the public interest” to let Detroit lend its condemnation powers to buy out homeowners and businesses in the Poletown neighborhood for a General Motors plant. But now the Michigan court has judged its Poletown standard too lax in a lawsuit over land for a Detroit-area high-tech corridor.

State legislatures are also being pressed to stiffen their definitions of “public use.”

Six states _ Connecticut, Kansas, Maryland, Minnesota, New York and North Dakota _ expressly let government “take” private property for economic development.

Another nine _ Arkansas, California, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington _ limit redevelopment authorities to condemning private property in “blighted areas.”

Since the Kelo case unsettled those definitions, at least 27 states are looking at further restrictions.

Alabama was first out of the gate. At the urging of Gov. Bob Riley, a special legislative session this week unanimously approved legislation to forbid condemnation of private property for “nongovernmental retail, office, commercial, residential or industrial development or use.” Sponsors note that Alabama never used eminent domain to acquire the property that Honda, Hyundai, Mercedes and Toyota used to build plants.

Still, state and local government groups caution against a rush to action. The National League of Cities counsels that “rumors of the death of property rights are greatly exaggerated.”

“Eminent domain is not a power to be used lightly,” but one tool for cities and their citizens to stay vital, says Washington, D.C., Mayor Anthony Williams, president of the League of Cities.

Williams asks, “Where would Baltimore be without the Inner Harbor, Kansas City without its Speedway; Canton, Miss., without its new Nissan plant?”

Conservative state lawmakers will gather Monday in Grapevine, Texas, to draft model legislation to expand property-rights protections. The proposals will go to the American Legislative Exchange Council’s board for approval by fall, before legislative sessions reconvene in most states. In advance:

_ California state Sen. Tom McClintock pre-filed a proposed constitutional amendment limiting condemnation by the state and its 6,000 local subdivisions. The proposal expands on California’s blighted-area requirement to “specifically prohibit the seizure of one person’s property for the private gain of another.”

Despite California’s “blight” restrictions, eminent domain is being eyeballed for everything from a new Los Angeles stadium to woo a National Football League franchise to a Ventura County spat over a port authority plan to put a cargo terminal where waterfront housing is proposed.

_ Florida Gov. Jeb Bush has approved House Speaker Allan Bense’s creation of a statewide committee to develop eminent-domain guidelines. In Florida, Daytona and Riviera Beach are embroiled in waterfront-condemnation controversies, and a Marlins baseball stadium plan would displace 100 Miami families.

_ In Tennessee, state Rep. Frank Niceley wants taxpayers to pay business or homeowners triple a property’s assessed price if it’s condemned for economic development. Niceley was reared on tales of the Tennessee Valley Authority flooding out farmers in his district and is old enough to remember condemnations for the 1982 World’s Fair in Knoxville. Both episodes convinced him that treble payment is the fair way “to reimburse the poor devil whose land is being stolen for the trauma of having to go through moving their home or business.”

Texas, however, is the epicenter of the Kelo earthquake.

Its congressional delegation is leading the charge to withhold federal funds whenever local governments use eminent domain for private development. Otherwise, House Republican leader Tom DeLay of Texas said, “There is no reason your city council cannot kick you out of your house and give it to a wealthier family.”

A special Texas legislative session is considering eminent-domain curbs, too, to protect “the right of Texans to unfettered access to their land,” state Senate sponsor Kyle Janek said.

His bill is not absolute but grandfathers eminent domain’s use for a new $650 million Dallas Cowboys football stadium in Arlington, where only three-dozen of 200 landowners on the 75-acre site have accepted current offers.

Arlington’s last major eminent-domain dustup was in 1993, when Texas authorized the stadium authority to condemn land for a ballpark for the Texas Rangers, under then-managing partner George W. Bush.

The family of air-conditioning and electronics pioneer Curtis Mathes rejected the $817,000 offer for 13 acres, asking $2.8 million instead, and eventually won a $7 million jury award that included $3 million in lawyer fees and costs.

(Contact Mary Deibel at deibelm(at)