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“The
poorest man may in his cottage bid defiance to all
the force of the Crown. It may be frail; its roof
may shake; the wind may blow through it; the
storms may enter; the rain may enter – but the
King of England cannot enter; all his forces dare
not cross the threshold of the ruined tenement.”
That
declaration by William Pitt in the House of Lords
may well have been the rule of English law in
1763, but on June 23, 2005, our own House of Lords
– the U.S. Supreme Court – turned it on its
head, declaring it acceptable for local government
to take private property by eminent domain and
turn it over to private developers. The King may
not enter, but he can simply take it.
In
her dissent to the Court’s decision in Kelo vs.
City of New London, Supreme Court Justice Sandra
Day O’Connor noted: “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. ... 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
reaction among Virginia politicians was swift:
From Jerry Kilgore to Tim Kaine, the ruling was
condemned and voters assured that legislation
would be passed to strengthen Virginia
restrictions on the use of eminent domain.
So,
it’s worth looking at where Virginia stands and
why Virginians will need to read the fine print in
any “corrective legislation” offered by the
General Assembly.
Nothing
in the Kelo decision forbids a state from imposing
further restrictions on the use of eminent domain.
At least 11 states already forbid the use of
eminent domain for economic development. Six
states expressly allow its use. Virginia is among
those that have been silent.
Eminent
domain has long been used to obtain land for
roads, schools, parks and other “public uses.”
In 1954, the Supreme Court allowed the Washington,
D.C., municipal government to take dilapidated
housing (60 percent of which had outside toilets
and no baths and 84 percent of which had no
central heating) for redevelopment for reasons of
“public safety and health” and “lack of
sanitary facilities” and “dilapidation.” In
short: Removal of blight constituted a “public
use.”
What
differentiates Kelo, as George Mason University
law professor Steven Eagle points out, is that the
land involved was not dilapidated, but it was
owned by the least politically powerful.
Addressing the Virginia Housing Commission in
July, Eagle noted, “This was a condemnation of
non-blighted homes. This was a working class
community. A nearby private club was not taken.
Nearby upscale housing was not taken.”
In fact, the condemnation was made largely to make
way for things like a resort hotel and conference
center, 80 to 100 new residences, and research,
office and retail space. No wonder Justice
O’Connor declared, “The beneficiaries are
likely to be those citizens with disproportionate
influence and power in the political process,
including large corporations and development
firms.”
Her
concerns were echoed by Virginia’s black
legislators, like Del. Onzlee Ware, D-Roanoke, who
worried that local governments would particularly
impact the less advantaged and disenfranchised
minorities, and Senator Benjamin Lambert who
noted, “Blacks in particular who have owned
property have seen eminent domain come in and take
it.”
This
is the real danger in the Kelo decision. Unless
corrected, local governments have been granted the
power to condemn property and award it to a higher
bidder if the redevelopment would bring in higher
taxes. In Northern Virginia, where land is
increasingly scarce, working class homes like
those taken in Kelo are potentially at risk if a
developer proposes a new set of “McMansions”
or high-end condominiums.
Last
year, legislation limiting Kelo-like actions was
introduced by Del., Robert Marshall, R-Manassas,
and Sen. Ken Cuccinelli, R-Centreville.
Marshall’s bill never made it out of committee.
Cuccinelli’s legislation was shot down in
committee on a vote of 6-9.
But
it’s a new day, right? Or is it?
The
Virginia Municipal League has already opined that
“the Kelo decision is a correct outcome,” and
its lawyers have warned that while they won’t
necessarily oppose legislation to bar use of
eminent domain for private development, they’ll
fight to give cities “the right to redevelop
areas that are in blight or falling into blight”
(my emphasis).
The
Virginia Association of Counties wants to
“ensure that legislation resulting from this
decision does not harm local government’s
ability to redevelop…” and to have “a tool
to avoid blight” (my emphasis).
Thus,
it’s not enough to take property if it is
blighted – localities are demanding the right to
take land if it might become blighted. And they
get to decide. Local governments,
then, are lining up to empower themselves to use
eminent domain for what The Christian Science
Monitor noted is “a heavy-handed fix to
alleviate budget troubles or satisfy a thirst for
development.”
And
when the General Assembly offers legislation in
January, citizens need to keep their eye on the
fine print, lest “the poorest man in his
cottage” find his land taken for a higher
tax-paying castle.
--
August 8, 2005
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