Friday, August 05, 2005

The Eminent Domain Bandwagon

It appears Ohio State Senator, Senator Kim Zurz (28th District) has jumped on the anti-eminent domain bandwagon. She has started a personal blog called “Private Ownership and Public Good.” ( She ends her opening post by stating:

The use of eminent domain for private development is not new to Ohioans - the examples of Norwood, Ohio and Lakewood, Ohio, though different, demonstrate how little citizens can do in the face of eminent domain.
It is common knowledge that the citizens of Lakewood went above and beyond the call of citizen response. Or has she forgotten that a certain mayor lost her job over the proposed Westend project.

Why are these politicians wasting our resources on something like this instead of dealing with more important issues in Ohio, like school funding? Don’t get me wrong, I am not belittling the issue of takings and eminent domain. People just need to realize that they still have the ultimate say in whether or not any entity can just come up to your property, offer you X amount of dollars and follow you out your door with a bulldozer. That is not going to happen.

The Supreme Court only made it clear that Economic Development is a legitimate, valid “public use” of eminent domain. It does not give any government or other entity more of a say in what happens to your property. It is actually upholding the rights of the local government decided long ago.

Justice Stevens, author of the opinion states, "The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue." Stevens cited that the "comprehensive character of the plan, [and] the thorough deliberation that preceded its adoption" led the Court to determine that the "... takings challenged here satisfy the public use requirement of the Fifth Amendment."

From a press release by the American Planning Association:

APA Executive Director and CEO, Paul Farmer, AICP stated, "The court's decision reaffirms that cities and planners have a responsibility to ensure the power of eminent domain is used thoughtfully and consistently with implementation of a community's comprehensive development plan. The court's decision not to second-guess the local government's determinations of 'public use' ensures that carefully thought-out community plans will not be hindered by a higher standard of judicial review."
In a response to various media, Farmer stated:

APA has written much on the Kelo case and decision. I won't repeat all those arguments and insights here. There are extensive resources on Kelo and the other Supreme Court cases available on the APA website. I will, however, attempt to set the record straight on some vital facts:

No new powers were created as a result of the decision.
The decision simply upheld existing legal precedent dating back 100 years and reaffirmed many times in the last 50 years. The justices reaffirmed that economic development qualifies as a "public use" under the Fifth Amendment. No city in America can do anything after Kelo that they couldn't do before the ruling. The petitioners were the ones asking for new powers, namely the ability to have local eminent domain decisions subject to review by federal judges.

Citizens are not more vulnerable to the use of eminent domain in light of the Kelo decision.
Just the opposite is true. Cities will be under more scrutiny than ever. Officials should welcome this spotlight and continue to pursue eminent domain in only the rarest circumstances.

State laws and constitutions governing eminent domain were not overturned.
In my home state of Illinois, state law would have prevented the situation in Kelo from ever arising. Many states have eminent domain standards stricter than those under review in Kelo. The decision did nothing to change, amend, or undermine these laws. We are certainly going to see similar restrictions introduced in other states.

The Court affirmed that a thorough and engaged planning process protects the values of citizens and their community.
The most important aspect of the decision in Kelo is the fact that the Court specifically noted that communities are granted deference in the determination of public use based primarily on the fact that an open, participatory, and comprehensive planning process was involved. Planning is the appropriate forum for public debate and decision-making. Good plans outline the collective vision of a community. The Court explicitly challenged backroom deals and made it very clear that the ruling would have been different had the private entity initiated the project requiring exercise of eminent domain.