Takings Advantage

The result of the state courts’ broad interpretation of “public benefit” in eminent domain cases could be seen Thursday when a divided Supreme Court ruled local governments may seize someone’s home or business if the private development planned for that spot could provide for a larger tax base or more jobs. It is a decision tied to precedent and unmoored from its practical effect.

The 5-4 ruling allows New London, Conn., to take, with proper compensation, the homes of Susette Kelo and several others in the working-class neighborhood of Fort Trumbull, along the Thames River. The city wants to enhance the Pfizer pharmaceutical company’s $270 million research facility there by adding a riverfront hotel, health club and offices. The court decision forces the neighbors out of their homes because, Justice John Paul Stevens wrote for the majority, “The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including – but by no means limited to – new jobs and increased tax revenue.”

The Fifth Amendment prevents private property from being taken for public use without just compensation. But under the court’s view of a public benefit, demonstrated merely through careful planning, that could mean any significant improvement over current use. To assume homeowners have a responsibility to maximize the public benefit of their homes or risk losing them is to make countless properties vulnerable to seizure. That’s what the amendment protects against.

In a friend-of-the-court brief, urban expert Jane Jacobs said, “economic takings serve as a virtual license for exploitation of the eminent domain power on behalf of powerful interest groups such as large corporations and wealthy developers.” The calculus here is simple: The wealthy and politically connected never have their homes endangered because they are protected by zoning that shields them from development; the middle class and poor are always at risk under this ruling because their neighborhoods are ripe for improving.

Seven or eight state supreme courts have agreed that private property may be taken and handed over to private development, a long way from the traditional use of eminent domain for schools, roads or bridges – clear public benefits. Connecticut’s decision relied on a 1981 Michigan case in which the residents of Poletown were moved out to make way for a General Motors expansion. Michigan courts last year, however, reversed that decision, deciding it was “a radical departure from fundamental constitutional principles.”

The Supreme Court should have followed the second ruling.