Affordable Housing Institute : US

Today the Supreme Court will hear oral arguments in what figures to be a very important case, 04-108, Kelo v. New London:

 

Facts of the Case

New London, a city in Connecticut, used its eminent domain authority to seize private property to sell to private developers. The city said developing the land would create jobs and increase tax revenues.  Susette Kelo and others whose property was seized sued New London in state court.  

 

Would you take this woman’s property?

 

The property owners argued the city violated the Fifth Amendment’s takings clause, which guaranteed the government will not take private property for public use without just compensation.  Specifically the property owners argued taking private property to sell to private developers was not public use.  The Connecticut Supreme Court ruled for New London.

 

At issue is the extent to which eminent domain (in the UK, it’s called compulsory purchase or CPO, and often used for urban regeneration) may be used …

… to clear private property for private urban development:

 

Question Presented

Does a city violate the Fifth Amendment’s takings clause if the city takes private property and sells it for private development, with the hopes the development will help the city’s bad economy?

 

The takings clause is one of the many private-citizen rights captured in the Fifth Amendment:

 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 

Even though the plain language speaks only in terms of ‘just compensation,’ jurisprudence has further checked government’s power by interpreting ‘due process’ to require the state, before it can take a property, to find a ‘compelling public interest.’ 

 

Just as public property can be exploited for private gain, private property may be taken for public good … but it’s one thing to take a farm to build a highway, but is it another to take a home for the more nebulous good of urban revitalization?

 

Big-stakes takings cases always attract a slew of amicus briefs:

 

• Plaintiffs’ briefs (seeking to limit eminent domain) and supporting views may be found here, here, here, here, and here.
• Defendant’s briefs (seeking to expand eminent domain) may be found here and here, together with a complete set of all briefs. 

Since affordable housing depends on public-private partnership, eminent domain questions figure prominently in its jurisprudence, including issues of land-development restrictions, down-zoning, regulatory takings, and government contractual obligations. 

 

The rhetoric of these cases is often high-blown:

 

Susette Kelo dreamed of owning a home that looked out over the water. She purchased and lovingly restored her little pink house where the Thames River meets the Long Island Sound in 1997, and has enjoyed the great view from its windows ever since.  The Dery family, down the street from Susette, has lived in Fort Trumbull since 1895; Matt Dery and his family live next door to his mother and father, whose parents purchased their house when William McKinley was president.  The richness and vibrancy of this neighborhood reflects the American ideal of community and the dream of homeownership.

Tragically, the City of New London is turning that dream into a nightmare.

 

The decisions, however, are complex, since government’s actions influence (often increase) the value of urban land (and hence, of urban property).

 

Much though I favor constructive zoning, it’s a bit rich to grab someone’s home and then flip it to a friendly developer. 

 

I’ll have lots more to say on this subject, but for now we must wait to hear from the Supremes:

 

 

 

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