Supreme Court's Ruling on Land

In Friday's article in The Washington Post " Court Ruling on Land Pleases D.C. Officials," David Nakamura and Debbi Wilgoren report:

"District leaders said a Supreme Court ruling yesterday that gives municipalities broad powers to seize private property will provide the city leverage in its goal to acquire land for two controversial projects, including a new baseball stadium.

"Mayor Anthony A. Williams (D) had been closely watching an eminent domain case in which homeowners in New London, Conn., sued the city when it attempted to take their land to develop a shopping mall. The court upheld the right of city governments to force property owners to sell to make way for private development.

"D.C. officials want to acquire 14 acres near the Anacostia waterfront by the end of the year to build a stadium for the Nationals. They also have been trying to buy the 1950s-era Skyland strip mall in Southeast to build a larger, upscale retail complex. In both cases, city officials say they will invoke eminent domain if necessary."

J. Peter Byrne, professor of law at Georgetown Law, was online Friday, June 24, at 2 p.m. ET to discuss what Thursday's Supreme Court ruling in the case of Kelo v. City of New London might mean for the District.

The transcript follows.

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J. Peter Byrne: Hi everyone. Although I support the Court's ruling in this case, because it acknowledges a power necessary for older cities to survive, I also think that the power can easily be abused, and has been abused in the past. All government power is subject to abuse. The task for government and citizens is to use this power with restraint to revitalize decaying urban areas while being scrupulously fair to those whose property is taken. We have been doing this now for many years.

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Alexandria, Va.: I was recently checking in on a libertarian chat site (Reason Magazine's) following this ruling -- the chat just about burned up my computer. I'm surprised it didn't set off my smoke detector.

I usually call myself a liberal, not a libertarian, but my immediate and lasting reaction to the ruling is horror. To me it makes me wonder if my secure sense of ownership of my own home hasn't all along been a fantasy.

What is your reading of the reaction among the general public?

J. Peter Byrne: The reporting of the Kelo decision, even by the Post, has alarmed many people unnecessarily. The Court did find that the Constitution does not prohibit a city from condemning homes as part of a much discussed, publicly approved redevelopment project. It does not mean that such actions will be frequent or widespread. Using condemnation in this way must satisfy state law and must be approved in the the political process. People like you (and me) view these actions with skepticism and concern for the displaced. Homeowners are the most powerful single political force in American life. We are secure in our homes.

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Chicago, Ill.: What are the long-term implications of this ruling? It seems rife for abuse by developers who have politicians in there back pocket.

J. Peter Byrne: This ruling does not change prior law much. The Court held in 1954 that government could take land for redevelopment as part of the urban renewal program. That fostered some very regrettable actions but the program as a whole was defeated by political action and legislative changes. Today, most politicians are scared stiff to use eminent domain, especially against homeowners.

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Washington, D.C.: This case reflects the very reason that when I am ready to retire, I am pulling up stakes and moving to another country. Seriously. In a country like Nigeria, the land you buy is yours forever. I've had plans for a while to sell my home and move to a country where the land you own is yours for good. This country is moving towards a system where a company or developer owns everything, even the place you rest your head at night, and no one is balking about it. It baffles me. Do homeowners have no protections any more? Does scrimping and saving for the so-called American dream mean anything when the government can come in and say, "We want your land for a shopping mall. Here's $10. Go away." What then is the point of becoming a homeowner in this country?

J. Peter Byrne: You are wrong if you think your property is more secure in Nigeria than in the United States. A point many miss is that the owners must be paid "just compensation." This means at a minimum the fair market value of their property. They also usually receive additional statutory compensation, like moving expenses. This money comes form the public fisc. Also, eminent domain generally requires some litigation, also expensive, as well as politically volatile.

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Alexandria, Va.: I keep seeing the stadium issue raised in this debate, but I don't see why. I thought invoking eminent domain for stadiums was settled law, since stadiums are considered common carriers in the same manner of toll roads and railroads.

So why does it keep coming up? Isn't it a matter of mixing apples and oranges?

J. Peter Byrne: You are right that there was little doubt before that DC could condemn land for a stadium, especially since it intends to be the owner. Cities have built stadia since Athens and Rome. What this decision clarifies is that the city also can take surrounding land to promote the revitalization of the area as part of the project. Of course, all this will be subject to extensive debate, as it should be.

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Orlando, Fla.: One could say that local government facilitates participation and reflects people's serious stake in their homes and communities, yet permits easy exit by moving to another town. Indeed, polls show Americans prefer and have more trust in their local governments than in state or national government. But in D.C., where there is no home rule, isn't it harder to make the case that eminent domain is a good thing? There isn't the representation that exists everywhere else. It isn't democratic. There isn't the accountability.

J. Peter Byrne: Great question. When the federal government approved urban renewal in DC, local people had no real say. The Court's opinion (Berman v. Parker, 1954) is full of praise of democracy, but little existed as far as DC residents went. Today, the situation is rather different, as DC has a rough and tumble local political life. The stadium or other redevelopment projects can be approved only after extensive scrutiny and debate by our elected officials.

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Culver City, Calif.: In a debate discussing Kelo with Richard Epstein, you noted "renters typically get little or nothing in compensation even though their personal attachments to their home may be much greater than their landlord's." D.C. is primarily made up of renters. Doesn't eminent domain in D.C. pose an exceptionally difficult case because of all the renters?

J. Peter Byrne: Renters do get screwed in eminent domain. They have to move, but have no ownership in their homes. Thus, they get only moving expenses at best. I thin this is wrong and have argued for "home loss payments" in excess of the market value of the displacee's home. They do this in England (which, by the way, has no written constitution).

The government must still compensate the building's owner. The risk to renters is that a landlord of a low rent property may prefer that the government condemn for compensation his building, when few would want to buy it in the market.

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Vienna, Va.: This case has gotten everyone upset, but they seem to miss the point that you can always vote the people out of office if they abuse the power. And for all the libertarians and conservatives bashing this "liberal" decision, it actually shows a lot of judicial deference to the political process. To have ruled otherwise would have been the very "judicial activism" that got conservatives so upset during the Terry Schiavo decision. Why does it seem they want it both ways?

J. Peter Byrne: Interesting perspective. During the Warren Court years, conservatives argued that the Court should decide fewer policy issues, especially those traditionally decided at the state and local levels. Some "conservative" jurists today want to assume awesome power of supervision of democratic government. Justice Thomas's dissenting opinion in this case rejects 200 years of consistent court decisions deferring to state and local governments in these matters based on a clumsy literal reading of the constitution and some potted history.

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Washington, D.C.: A point many miss is that the owners must be paid "just compensation."

If that's a joke, I'm not laughing. Just compensation as defined by whom, exactly? The government, the same government who wants to take your rightfully held private property.

How naive does the court think people are?

J. Peter Byrne: You are entitled to a jury trial on the adequacy of compensation. The owners in this Connecticut case did not contest the adequacy of compensation.

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Washington, D.C.: Professor Byrne,

You obviously don't understand property rights and you certainly don't understand our constitution. "Public use" in the takings clause does not mean that private property can be turned over to private developers. If this is the case then no property is private

J. Peter Byrne: You are entitled to your opinion. For 200 years courts have held that government need not possess land to satisfy the public use criterion. They interpret public use to mean public benefit, a perfectly good reading according to the dictionary. We would have no railroads if government had to own the condemned land. Also, do we want to create a strong incentive for government to retain possession and management of land? Must DC own this baseball stadium as a matter of constitutional law? Conservatives should be the last to want that!

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Jenkintown, Pa.: Does the so called fair market value have to allow for current inflated housing prices? If not what becomes of the homeowner? Do they become homeless. That could very easily happen to us.

J. Peter Byrne: Yes, the owner must receive what a willing seller today would pay a willing buyer.

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Boston, Mass.: All this talk about how these newly acquired powers will not be abused by local land managers has me thinking about the provisions in the Patriot Act. How can you assure that less scrupulous actors in the future will not?

Make no mistake, this "subtle" change fundamentally changes property from a "right to own" to a "license to use."

J. Peter Byrne: Redevelopment and condemnation are far more transparent than government investigations, etc., under the Patriot Act. Also, citizens (especially homeowners) have far more control over and trust in local government than they do in the federal government.

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Phoenix, Ariz.: I thought our Supreme Court in Berman v. Parker held that the urban renewal program in Washington D.C. could rip down a perfectly serviceable department store as part of a larger slum clearance project. That seems like the opposite of the good decision-making that you say would result from use of eminent domain power. If the local government only has to project higher revenues from the newer use, without having to substantiate the claim, then no one's home is safe!!!!

J. Peter Byrne: The costs and benefits of urban renewal in Southwest Washington have been and will be long debated. The community that was displaced had great tradition and neighborliness, even if so much housing was substandard. I think government then focused too much on physical conditions and not enough on social. There also was the absence of local voice in the political process and the grossly disproportionate effect on African-Americans. At the same time, Southwest became the first racially integrated neighborhood in DC and for most a nice place to live. Interestingly, the apartment building built at the site of the store at issue in Berman recently became an historic landmark, so cannot be torn down without extraordinary procedures. Ironic.

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Greenbelt, Md.: I think what a lot of people found objectionable in this case was the equation between tax revenue and public interest. It seems like the decision places the interests of government (such as raising revenue) and developers (whose political contributions have a corrupting influence over local politicians) over the general population.

I can't see how this will not be a big blow to affordable housing. The conservatives are worried that this decision dilutes private property rights. I am concerned that it dilutes the notion of public goods.

J. Peter Byrne: Many share your concern. The reality for a city like New London is that it will disproportionately house the region's low income population. More affluent people move to suburbs protected by exclusionary zoning. Creating jobs helps poor urban residents. Enhancing tax revenues supports schools and essential public services. The federal government has gone out of the business of helping declining cities. Cities need to survive and take care of the poor. Who else will?

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Washington, D.C.: Doesn't a city (or state) still have to pass legislation to permit eminent domain purchase in order for this ruling to affect those residents? i.e., don't some states now explicitly forbid this practice?

J. Peter Byrne: Good point. Cities can exercise eminent domain only pursuant to state constitutions and statutes. Very often, the approval of state officials also is required. Some states have constitutional provisions far more restrictive than what the US Supreme Court approved. Indeed the Court suggested that variations among states are desirable. States can restrict local use of eminent domain as much as they want.

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Memphis, Tenn.: Professor Byrne, Do you believe that this decision, and the increasing number of redevelopment projects throughout the country, represent a new reality of development in the U.S.? It seems that the only way to balance the pull of suburban sprawl is with new construction and development within cities, something that is too expensive to undertake without the prospect of eminent domain. It seems to me that rather than being a one-sided boom to wealthy developers, the decision provides one of the only ways to truly maintain the growth and improvement within urban areas -- to benefit poorer communities, public schools, bring jobs, etc.

J. Peter Byrne: Most urban development, of course, still is entirely private, without any use of eminent domain. Cities are more likely to offer developers properties that they have taken in tax foreclosures and use subsidies to achieve their public goals through private development. In the Connecticut case, New London proposed to convey important parcels for $1 to a private developer willing to follow the plan. This may be brilliant or mad depending on the circumstances, but public/private cooperation is a fact of life in cities. Condemnation is the least frequent vehicle for it.

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SE Washington, D.C.: While I share the concern about the broader implications of the ruling, I do have to weigh in as a current (8 year) resident of Ward 7 in Southeast D.C., where the majority of us are ELATED. Not so much at the decision, but rather that it cannot be used to further unfairly block the COMMUNITY DRIVEN and COMMUNITY DESIRED re-development of Skyland Shopping Center. It is a MUCH more complex situation, involving property owners who willfully neglected that site (when the neighborhood changed from middle-class white/to middle-class black). They ignored 16 years of organized and documented community activism to stem the decline (through the Skyland Task Force comprised of Ward 7 and 8 residents). I think property rights work both ways: business owners should be expected to be good community citizens. They were not. Had Skyland been in Arlington, it would have been sized long ago as an eyesore and a safety hazard. In this specific case, I'm glad that they will not be able to use the Kelo case to shield them from the repercussions of neglect and mismanagement.

J. Peter Byrne: I agree that it is a legitimate function of government to promote development wanted by local residents that the market seems unwilling to provide. If the owners of existing commercial space are fairly compensated, what unfairness has befallen them?

I also agree that property has a social aspect. What my neighbor owns affects greatly the quality of my life. The trick is to adjust rights and wrongs through our imperfect political process.

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Alexandria, Va.: Re: "just compensation." My own home has tripled in value over the last ten years, however, property values everywhere else have gone up like crazy as well. In current conditions, there is NO WAY, if the government were to assess the on-paper value of my home, pay me for it and then kick me out, that I would be able to afford another decent home in the Washington Metropolitan area. (Especially taking into consideration the heart, elbow grease and additional funds I've put into it over the years as well.) I bet my situation perfectly mirrors the dilemma that will be awaiting most if not all of the less-than-affluent property owners we are talking about here.

J. Peter Byrne: Finding replacement housing we can afford is a serious problem. I think that just compensation law likely will become friendlier to homeowners in the coming years. This was discussed during oral arguments in Kelo, but does make much of an appearance in the opinions.

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Atlanta, Ga.: You just said: "The federal government has gone out of the business of helping declining cities. Cities need to survive and take care of the poor. Who else will?"

But doesn't that admit this is really a national and federal issue, and not a state and local one? If the National League of Cities (or whomever) can just go to federal court to impose a rule that lets them rob people of their property ... isn't that just away to subvert the national will that refuses to elect a President and Congress that will fund the cities in the way liberals like you prefer?

Isn't this just politics waged through the courts?

J. Peter Byrne: Whoa. If the feds decide that they do not want to help cities, it does not follow that states and cities may not help themselves. That is the point of federalism. States and cities are self-governing, except to the extent that the federal government restricts them within the powers given it by the Constitution. The Court here only held that that the Constitution does not prohibit states and cites from exercising this power in this way.

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McLean, Va.: Pure and simple, there should be a boycott of businesses and companies that use this to expand their "footprint" in areas where they are not welcome. People should vote with their pocketbooks. Lawmakers who back this should be run out of town on a rail. As someone pointed out earlier, there is no American dream if this is allowed to happen, compensation or no compensation.

J. Peter Byrne: You are safe in McLean.

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Maryland: Taking land from one private owner to give to another private owner is not "necessary for cities to survive." In most cases it is transferring wealth from those who have little to those who have much. If the corporation or developer wants my land, there is a readily accessible way to get it: buy it from me at market value. Everyone really does have a price, and if they don't, figure out a way around the obstacle (or over it - ever seen pictures in London of a tall building built around and on top of (but not touching) a house the owner wouldn't see?).

No on will ever convince me that the powers of eminent domain were even meant to enrich one private owner at the expense of another. It was to build roads, schools, etc. for the benefit of many. Anything else is a taking, in every sense of the word.

J. Peter Byrne: One nightmare scenario that stirs people is that a large corporation will decide that it wants our house for a new store, etc., and will persuade spineless local pols to use eminent domain to get it. That does happen, if rarely. The Court yesterday plainly was concerned about that scenario more than the careful planning and political process in New London, and dropped hints that federal courts should look closely at takings intended to benefit particular companies and individuals to make sure that there was a substantial public benefit. No one likes that outcome.

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Falls Church, Va.: Prof. Byrne, I'm not a lawyer so please forgive me if my question is naive, and explain how. Reading through the opinions, I see every reference to "property" is a reference to Real Estate. Every case they reference seems to have been about Real Estate, and this case was about Real Estate. But there are many kinds of property. Is this decision limited in impact to Real Estate, or does it conceivably mean (technically if not realistically at the moment) that my record collection, the silverware in my drawers, even the rights to my novel or trademarked phrase (my intellectual property) can be taken for economic development reasons?

J. Peter Byrne: In principle, any property may be the subject of eminent domain. Indeed, there has been talk about "taking" patents to certain drugs to address disease in the third world. What makes eminent domain most likely regarding land are the barriers to assembling large parcels in strategic locations. When government does that, it may add real value that can be captured for the public. For most other forms of property, the unaided market works more smoothly, except for "externalties."

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J. Peter Byrne: Thanks for your questions. It is unfortunate that people have become so worried about a decision that follows 200 years of precedent. Relax on your porch and feel secure in your home. No other country in the world values private property rights as much as we do.

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