Localities Bolster Private Property Protections

Published October 1, 2005

City and county governments across the nation are bolstering private property protections in reaction to the U.S. Supreme Court’s June 23 decision in Kelo v. City of New London. In Kelo, the court approved a broad definition of “public use” under which state and local governments may take private property using eminent domain powers.

By acting to shore up private property rights protections, local governments are assuring their citizens that the type of controversial taking of land approved by the Supreme Court will not occur in their jurisdiction.

In its Kelo decision, the Court ruled the city of New London, Connecticut could force a citizen to sell her home at “market value” to a real estate developer that planned to build an office complex. Acknowledging the city could exercise its eminent domain power only if the property at issue was put to public use, the Court nevertheless ruled the city’s good-faith expectation of higher tax revenues from the property’s future use justified the taking.

Important in the 5-4 decision was the Court’s reaffirmation that state and local governments have the authority to enact more stringent property rights protections. Cities and counties across the country have chosen to do just that.

Georgians Spring into Action

Several Georgia counties typified the actions taken by local governments nationwide.

Cherokee County commissioners unanimously passed a resolution on July 5 urging the state legislature to pass a law forbidding the use of eminent domain to transfer property from one private citizen to another.

“We felt that the Supreme Court got this one wrong,” explained Commission Chairman Mike Byrd in the July 14 Atlanta Journal-Constitution. “To take someone’s home that they have worked for their whole life and give it to someone else for economic development is totally inappropriate.”

“Eminent domain should be restricted, in my opinion, to true public purposes like building a road or a county facility,” Commissioner Derek Good told the Journal-Constitution.

Cobb County Chairman Sam Olens told the Journal-Constitution his county may pass a law banning the type of eminent domain action at issue in Kelo. However, Olens expressed hope the state legislature would do so first.

DeKalb County Chief Executive Officer Vernon Jones is not waiting for the state to act. Jones filed a resolution with the county’s board of commissioners during the last week of June, condemning the use of eminent domain for mere economic reasons.

South Dakota Cites Framers

In South Dakota, the Pennington County Commission on August 16 approved a resolution stating the original concept of the framers of the U.S. Constitution was to use the power of eminent domain “only as a last resort to acquire private property for a public project and that any such public project can be demonstrated to be necessary to accomplish the general welfare of the citizens.”

The Pennington County resolution was modeled after a similar resolution in nearby Sully County. The Pennington County resolution states any departure from the original principle of eminent domain is an “assault on our basic foundations of liberty and a threat to the rights of private property ownership.”

The resolution urges the state legislature to take whatever action is necessary to strengthen private property protections in keeping with the original purpose of the federal and state constitutions.

“As you know, there’s probably a move on by legislators to pass a law in the state that would restrict, once and for all, the eminent domain principles,” said Ron Buskerud, administrative assistant for the county, according to the August 16 Rapid City Journal. “This would be affirmation by the commission that the legislature should go ahead and do something like that.”

City Council Acts by Fax

In Maplewood, Missouri, the city council decided not to wait until its next session to take protective action. On Saturday, July 16, the council members unanimously agreed by fax to a resolution calling for the city to prohibit the use of eminent domain solely for economic reasons. The resolution-by-fax was not legally binding. At a formal meeting of the city council on August 9, the council made the resolution legally binding in the form of an ordinance.

According to the resolution and subsequent ordinance, eminent domain will be used only “for those traditional areas in which eminent domain has always been used,” such as building roads or schools or to remedy serious neighborhood blight.

“[Kelo] was an entirely wrong-headed decision,” said Sterling Burnett, senior fellow at the National Center for Policy Analysis. “It is only natural that local governments are wasting little time restoring the protections that the Supreme Court took away.

“This is a textbook example of local governments responding to the grassroots will of the people,” Burnett added. “The federal government would be wise to take notice.”

James Hoare ([email protected]) is managing attorney at the Syracuse, New York office of McGivney, Kluger & Gannon.

For more information …

The full text of the majority and dissenting opinions in Kelo is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to http://www.heartland.org, click on the PolicyBot™ button, and request documents #17418 (majority), #17419 (O’Connor dissent), and #17420 (Thomas dissent).