Missouri Condemnation No Longer So Imminent

Several members of Congress have introduced legislation that would bar federal financing for any local government project that condemns property for a commercial development. But Congress did authorize governments to condemn property for the benefit of energy companies in the new energy bill that President Bush signed last month.

The right of government to seize private property for public projects is specifically authorized in the Constitution as long as owners receive "just compensation." A farmer whose cornfield lies in the path of a proposed expressway can be forced to sell the land even if he wants to keep farming there.

Traditionally, this power of eminent domain was used for government functions such as parks and highways. But more and more local governments have begun seizing property from unwilling owners for the creation of industrial parks, hotels and shopping centers.

This trend was not widely recognized until the Supreme Court decision in June that validated the practice. An issue that had been primarily of interest to local governments and land-use planners quickly hit every editorial page in the country, with widespread condemnation of the court's 5 to 4 ruling.

Some interest groups, including the National League of Cities, endorsed the ruling. But the overall political reaction was intensely hostile, sparking a rush of proposed legislation.

Supreme Court justices may not be unhappy about this reaction. Justice John Paul Stevens, author of the majority opinion in the Kelo case, said in a speech this summer that he did not agree with the property seizure in that case but felt that the law required him to uphold it nonetheless.

Justice Sandra Day O'Connor, who dissented in Kelo , warned that permitting seizure of private property for private development would have a reverse Robin Hood effect, giving governments "license to transfer property from those with few resources to those with more."

That pattern is clear here in Sunset Hills. This affluent town is dotted with large $600,000 homes on green hills surrounding a country club. But the Sunset Manor subdivision, the most ethnically mixed neighborhood in town, is made up mainly of small homes on small lots, with prices around $100,000.

The city council here, known as the Board of Aldermen, decided last year to level the 65-acre subdivision so that Novus Cos., a local developer, could build an upscale shopping mall to be called Main Street at Sunset. Of the 254 homeowners, 229 have agreed to sell their property to Novus. The owner of a shopping mall two miles away has financed the efforts of the holdout owners to block condemnation of their properties.

In July, the alderman authorized condemnation proceedings against the remaining owners -- including David and Lorraine Wright, a black couple who had planned to spend the rest of their lives in Sunset Manor and thus declined to sell their home.

"We thought at first, you know, we didn't have a prayer," David Wright said. "How can you fight City Hall? And then the Supreme Court ruled against people like us.

"But the reaction to that decision has been so strong. The project is kind of stopped. So now we are thinking maybe we can stay here."

Novus, the developer, said it is searching for new financing. Meanwhile, the project is on hold -- a painful development for the 229 homeowners who had agreed to sell their houses and move.

"The collapse of the financing for the [shopping mall] project has left a couple of hundred families in a terrible place," said Pete Snyder, a spokesman for the developer. "A lot of them are already paying the mortgage on their new home, but now they don't have a buyer for the old one. This has to be resolved, and condemning those 25 houses is the way it has to go forward," he said of the holdouts.

But Will Aschinger, a leader of the anti-condemnation group, thinks the political reaction to the Supreme Court decision has effectively saved the Sunset Manor subdivision. "The backlash against that decision is the best thing that ever happened to us," he said with a smile. "No matter what the court says, I don't think cities can get away with this kind of stuff anymore."