Private property now at mercy of government

In the final days of its most recent term, the U.S. Supreme Court sent shock waves throughout the nation with a ruling that strikes at the heart of private property rights. In a 5-4 decision, the court in Kelo v. City of New London granted permission for a small Connecticut city to use its power of eminent domain to tear down citizens’ homes to clear the way for a private economic revitalization project.

With the court’s blessing, the government of New London will be able to snatch up private property and effectively turn it over to developers – not because the property is blight on the community, but simply because the developers would make it more profitable.

Six years ago the New London City Council conceived a plan for urban revitalization and tax base enhancement. Through its nonprofit development agency, it would buy, or if necessary condemn, 98 acres called Fort Trumbull, adjacent to the Pfizer pharmaceutical complex.

After setting aside 18 acres for parkland, it would sell the remainder to a private developer. The developer would develop the remaining acreage according to a city-approved master plan including a hotel, a conference center, restaurants, and upscale retailing. The city would benefit from the jobs created and also rake in a ton of property tax dollars.

Fifty-eight of those acres are owned by 115 small landowners. Some of them have lived there all of their lives, in modest and well-maintained homes. They went to court to defend their property rights.

Neither the houses nor the neighborhood was blighted or dangerous. The city and its urban planners simply decided they would prefer other owners and economic activities on the waterfront.

The court ruled in favor of the city. The decision says that where a government has a “carefully considered development plan” that is intended to lead to economic development, enhancing the tax base and creating jobs, it has the right to use the condemnation power contained in the U.S. Constitution to seize private land and transfer title of it to private developers.

This decision is very troubling for all private owners and especially for farmers. If left unchecked, government’s free and expanded use of power of eminent domain could be its preferred method of balancing its books. Property owners will continue to fall victim to this abuse, particularly farmland bordering cities. The potential is real, especially if you consider which entity would generate more revenue and taxes. A cornfield or a condo? A vegetable farm or a housing development?

The Fifth Amendment of the U.S. Constitution says “nor shall private property be taken for public use without just compensation.” To the framers of the Bill of Rights, “public use” meant highways, lighthouses, navy yards, arsenals, and custom houses owned by the public, or canals, ferries, and railroads serving as common carriers for the public. But private property may not be taken by eminent domain – regardless of just compensation – if the government simply turns it over to the private use of a different owner.

In Kelo, however, the court replaced the constitutional requirement of “public use” with “public purpose.”

It followed a line of cases developed in the 1950s and 1960s dealing with urban renewal and slum clearance by large U.S. cities. In these cases the court decided condemnation was permissible if the government condemning properties didn’t itself hold title and become a developer, but instead transferred ownership to private parties to help achieve the elimination of blight and dangerous health conditions.

A key element, however, was that such projects had to further a public policy consistent with the traditional power of government: protecting the health of the public.

In this decision the court expanded public purpose definition to encompass anything with potential economic development benefits, so long as the development plan is “carefully considered.” The majority felt it is necessary in a modern society to read public purpose that way because government should be interested in economic development.

Of course, what constitutes a “public purpose” can be open to interpretation. As Justice Sandra Day O’Connor observed in a scathing dissent, “under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded – i.e. given to an owner who will use it in a way that the legislature deems more beneficial to the public. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

The Maine Constitution eminent domain language differs from the federal constitution. However, no one in Maine, and its been reported that even our Attorney General, can say what would happen if a town tries to take your home or farm and sell it for private development.

It is a basic right that our individual property should be protected. Our lawmakers need to rewrite the eminent domain law so that it cannot be open to interpretation. It needs to be rewritten so it clearly bans the taking of private property for private development.

Jon Olson is executive secretary of the Maine Farm Bureau Association in Augusta.