Eminent Domain By Nathan Ovans 102706 In the recent case of Kelo verses the City of New London, the U.S. Supreme Court issued a controversial opinion on the subject of eminent domain, or condemnation. The Supreme Court found that, under certain circumstances, a local government has the power to condemn private property for the sole purpose of economic development. While in the past state courts, like Michigan’s Supreme Court, have agreed with the U.S. Supreme Court’s recent ruling, the current opinion of Michigan’s courts and legislature has swung in favor of private property rights. In the case Kelo verses the City of New London, the city of New London, Connecticut, approved of a development plan that would create 1,000 new jobs, increase tax revenue, and rejuvenate the economy of the distressed city. The plan included replacing a neighborhood, which was not blighted, with new office space, a conference hotel, a riverwalk, and new residential homes. The project was to be managed by private developers, and was intended to maximize the benefit for the city from a new research center built by Pfizer Inc. In acquiring the land needed for the project, the city’s agent purchased the properties from willing sellers; however, some sellers were not willing to sell their property. The city then took action to condemn the remaining properties so that the city could acquire them. The property owners then took suit against the city, claiming that the condemnation of their properties violated the Fifth Amendment’s “public use” requirement. The Supreme Court of Connecticut upheld the city’s right to condemn the properties. The property owners then appealed to the U.S. Supreme Court. In a 54 decision, the Supreme Court ruled that the city’s condemnation of property for private development and use, according to its approved plan, was within the requirement of “public use.” Never before had courts had to examine the constitutional limits of government’s power of eminent domain in a context such as the Kelo case. In the U.S. Supreme Court’s ruling, the Supreme Court redefined the term and interpretation of “public use.” Justice John Paul Stevens wrote, in the majority opinion, that the term “public use” in the Fifth Amendment should not be read literally, and that the court “has embraced the broader and more natural interpretation of public use as ‘public purpose.’” In the Kelo ruling, the court found that since promoting economic development is a long accepted function of government, the condemnations were for a “public purpose” and met the “public use” requirement. There was strong disagreement from the four dissenting justices. As noted by Justice Sandra Day O’Connor, who wrote the principle dissent, “any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” Many states have reacted to the Kelo case by passing new statutes, most siding with the dissenting opinion of the Supreme Court. Historically, Michigan’s attitude towards eminent domain has been in favor of the local government and developers. In the infamous Poletown case, the Michigan Supreme Court decided in favor of the city. In the case, the city of Detroit seized residential homes, businesses, and churches so that General Motors could build a new plant in the area. The city claimed that the new jobs and tax revenue that would be created met the qualification of “public use.” While the court sided with the city, many people throughout Michigan starkly disagreed with the court’s ruling. What began as a power to seize property on which to build courthouses and police stations was extended to seizing and redistributing property to alleviate “blight” and then extended again to seizing and redistributing property to 1 improve the economy and the government’s tax base. It was not until recently that Michigan’s courts would reflect the opinion of the public. In July of 2004, the Michigan Supreme Court overturned the Poletown case. In Wayne County verses Hathcock, the county condemned private property to give to a private developer, with the outlook of improving the economy. The court held that the use of eminent domain under the Poletown circumstances violated the “public use” doctrine under the Michigan Constitution. Thus the court overturned the Poletown case and ruled against the county, because the ultimate title to the property would be held privately. In the wake of the Wayne County verses Hathcock case, Michigan has continued to lean towards private property rights. Like many other states, Michigan’s legislature has introduced a number of bills in response to the Kelo case. In fact, for this election year of 2006, a proposed constitutional amendment, to prohibit government from taking private property by eminent domain for certain private purposes, is on Michigan’s ballot. This amendment would help to define what “public use” is, one thing that Michigan’s Supreme Court currently differs in opinion from the U.S. Supreme Court. Notes 1 Jacob G. Hornberger, “The Bill of Rights: Eminent Domain,” Freedom Daily December 2004. References Hornberger, Jacob G. “The Bill of Rights: Eminent Domain.” Freedom Daily December 2004. Preston, Meredith. “States pass laws to limit eminent domain: Locals fight to retain power for redevelopment.” American City & County v. 121 no4 (April 2006): 8, 10. Dearth, Richard C., and J. Russell Hardin. “Kelo v. the City of New London: what does it really mean?.” Real Estate Issues 30.2 (Winter 2005): 21(6). Snyder, David B. “Eminent Domain after Kelo.” Mortgage Banking 66 no5 (Fall 2006): 667, 6970.
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