Defining Limits of Eminent Domain

High Court Weighs City's Claim to Land

An attorney for a group of Connecticut homeowners told the Supreme Court yesterday that his clients have a constitutional right to stay in their houses even though their city says it needs the sites for privately developed offices, hotels and parking, in a case that could affect property rights across the country.

The lawyer, Scott G. Bullock of the libertarian Institute for Justice, said that if New London, Conn., can use its power of eminent domain to force Susette Kelo and six other owners to sell for the sake of jobs and tax revenue private-sector development brings, the Fifth Amendment guarantee that private property cannot be taken for "public use" without just compensation would be a dead letter.

"Every home, church or corner store would produce more jobs and tax revenue if it were a Costco or a . . . shopping mall," Bullock said.

The court seemed conflicted about the issue, with members of the court posing equally demanding questions of each side.

There were two empty chairs at the bench, with Chief Justice William H. Rehnquist absent because of illness and Justice John Paul Stevens out because his flight from Florida, where he maintains a home, had been canceled.

That created an opportunity for Justice Sandra Day O'Connor, the most senior remaining justice, to become the first woman to preside over an oral argument at the court.

Sounding skeptical that there could be a blanket rule against using eminent domain to promote private redevelopment, O'Connor pressed Bullock repeatedly to say under what circumstances it might be allowable.

When Bullock suggested that a "minimum standard" might be to require cities to show there is a good chance that the promised public benefits of redevelopment might materialize, O'Connor replied, "Do you really want the courts in the business of deciding whether a hospital will be successful . . . or a road will be successful?"

But when Wesley W. Horton rose to argue on New London's behalf, O'Connor asked whether it would be "okay" for a city to replace a Motel 6 with a Ritz-Carlton "if the city felt Ritz-Carlton could pay more tax."

Horton said yes, prompting several justices to pepper him with questions about the basic fairness of shifting resources from one set of private owners to another, richer, set.

"What this lady [Kelo] wants is not more money," Justice Antonin Scalia said. "She says I'll move if it's for the public good, but not just so that someone else can pay more taxes. This is an objection in principle that 'public use' in the Constitution seems to be addressed to."

Relying on post-World War II Supreme Court decisions that broadened the definition of "public use" to include not only roads or bridges but also slum clearance and land redistribution, cities have used eminent domain frequently to foster private-sector redevelopment in recent years. Especially in the Northeast, it is a way to spur revitalization in old urban centers when undeveloped suburban land is running out.

Between 1998 and 2002, more than 10,000 threatened or filed condemnations involved a transfer of property from one private party to another in 41 states, the Institute for Justice reports, with states using various definitions of "public use" to justify them.

In a friend-of-the-court brief supporting New London, the National League of Cities called eminent domain "often indispensable for revitalizing local economies." The brief cited the Kansas Speedway, which generated tens of millions of dollars in economic activity for Kansas City, Kan., and surrounding Wyandotte County after it was built on land that had been held by private homeowners.

New London is opposed by such organizations as the NAACP and AARP, which argue that minorities and the elderly are often the victims of eminent domain "abuse."

New London's redevelopment strategy seeks to capitalize on a 1998 decision by pharmaceutical giant Pfizer Inc. to locate a research facility in the town by surrounding that site with new marinas, office space, a hotel and conference center and high-end housing, as well as parking for a new state park.

Critics say the benefits of the proposed complex are uncertain, while the attachment to their homes of such longtime residents as Wilhelmina and Charles Dery, 87 and 85, respectively, is clear.

The case is Kelo v. New London, No. 04-108. A decision is expected by July.