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Court Ruling Leaves Poor at Greatest Risk

By Kenneth R. Harney
Saturday, July 2, 2005

Is your home more vulnerable to eminent domain seizure by your local government in the wake of the Supreme Court's 5 to 4 decision June 23 in Kelo v. City of New London ?

The ruling upheld the Connecticut city's right to seize 15 properties from private owners and transfer the real estate to private developers for later hotel, office and conference center projects. None of the owners wanted to sell at any price. None of the houses was considered to be blighted or in disrepair. None of the real estate will be used or owned by the city itself.

Leonard Zax, a Washington land-use lawyer who represents developers and cities, said homeowners across the country have nothing to worry about. "People are just as safe [from seizure] the day after the court's decision as they were the day before, the week before, the month before and for the past 50 years," Zax said.

But listen to what Supreme Court Justice Sandra Day O'Connor had to say in her dissenting opinion: "All private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded. . . . The specter of condemnation hangs over all property. Nothing is to prevent [local governments] from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

O'Connor added that the high court's decision eliminates "any distinction between private and public use of property -- and thereby effectively [deletes] the words 'for public use' from the Takings Clause of the Fifth Amendment" to the Constitution. The Fifth Amendment prohibits governments from taking private properties "for public use, without just compensation." Traditionally "public use" has been understood to mean direct public ownership and use -- eminent domain seizures for roadways, public buildings and the like.

In recent decades, however, courts have expanded the concept of "public use" to include projects that contribute to "public purposes," even if the direct beneficiaries of the seizures would be private owners such as developers and real estate investors. The most notable case, Berman v. Parker , involved the wholesale condemnation in 1954 of economically depressed, predominantly African American neighborhoods in Southwest Washington, to be replaced by new, privately owned buildings.

In the New London case, the five justices in the majority held that when a local government determines that eminent domain seizures will contribute to a public benefit -- even if that benefit is little more than the prospect of increased tax revenue -- the Supreme Court should give the local government "deference" and not interfere.

Where does that leave you if your local government sees potential for a higher and better use for your home and land? What if you, like the New London homeowners, don't want to give up your home no matter what you're offered?

In brief: The court's decision leaves you in a weaker position, at least under federal law, than you might imagine. The majority of justices on the current court appear to be saying that "public purposes" may be discernible in a wide variety of private projects. If, for example, your city's political leaders decided that all the houses on your street would produce higher tax revenue as a regional shopping center, they are now in a stronger position to seize your house under the court's Kelo doctrine.

As a practical matter, who's really at greater risk of such seizures? Surely not homeowners in the wealthier parts of town, who have the ears of, if not control of, the local political establishment.

Dana Berliner, a lawyer for the Institute for Justice, the libertarian public interest law firm that represented the New London homeowners, says certain categories of homeowners are at heightened risk. Based on her research on more than 10,000 of what she terms "abusive" eminent domain seizures across the country, the high-risk homeowners are:

· Residents of older neighborhoods in locations that make them attractive for a supposedly "higher and better use" -- for example, near a waterfront or in a low-density area adjacent to higher-density commercial areas.

· Working-class and middle-income areas in general.

· Neighborhoods with high concentrations of lower-income minority residents.

With the Supreme Court majority now giving "deference" to local government decisions on eminent domain seizures for private projects, Berliner said she expects the phenomenon to spread in the years ahead, affecting thousands of homeowners who assumed they were safe.

The remedy: Organize and fight such projects at the state and local levels, where you may find greater statutory protections. To assist in that effort, Berliner's firm is sponsoring a grass-roots group, Castle Coalition ( http://www.castlecoalition.org/ ). There is no membership fee; the coalition provides legal information and training seminars for property owners who choose not to give up without a fight.

Kenneth R. Harney's e-mail address isKenHarney@earthlink.net.

© 2005 The Washington Post Company