Editorial: Defending private property

Monday, Nov. 14, 2005 | 8:48 a.m.

The U.S. Supreme Court's eminent domain decision in June was applauded by many local governments but highly criticized by people who believe that property owners have considerable rights over their land. We joined the criticism and are in support of a movement in Congress to render the high court's decision all but moot.

At issue in the court case was a government's right to forcibly buy land from a private property owner for the purpose of turning it over to a private developer. The case arose out of New London, Conn., where a small group of ocean-side landowners had turned down the city's offer to purchase their properties. With the blessing of state courts, the city then tried to force the sale so that it could use the land as part of a 90-acre economic redevelopment project.

In appealing to the Supreme Court, the property owners cited the Fifth Amendment, which says private land cannot be taken for "public use" without just compensation. They argued that the redevelopment would benefit private interests, not public. The city argued that it had a right to intervene on behalf of the private developers, as their development, including housing, office buildings and a marina, would generate greater tax revenue.

This argument has been successful in lower courts throughout the country over the past decade. Las Vegas had its experience with it in the 1990s, when the city of Las Vegas took land from private owners to make way for the Fremont Street Experience. Previously such taking of land under a government's power of eminent domain had been largely confined to genuine public needs, such as the building of bridges and highways. When the Supreme Court took the New London case (Kelo v. City of New London), owners of private property anticipated vindication.

But the court narrowly ruled in favor of New London, setting off a firestorm of protest from people and politicians of all stripes. We, too, believe a private landowner has the right to retain his property unless there is a clear public "use" for it. The majority Supreme Court opinion suggested that "public use" (bridges, etc.) and "public purpose" (greater tax revenue, etc.) are interchangeable terms.

We agree with the dissent by Justice Sandra Day O'Connor, who wrote that with this decision the "specter of condemnation hangs over all property. 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."

Nothing that is, except H.R. 4128, a bill passed by the House and now being considered by the Senate Judiciary Committee. The bill, which has bipartisan support, would withhold federal economic development funds from state and local governments that use the Supreme Court's decision to seize private property for a private development.

This promises to be effective, as the majority of states' funding for vital economic development projects comes from federal dollars. The House and Senate have both previously approved bills barring the use of any federal transportation funds for improvements to any land seized for private development.

We support this kind of action by Congress. It shows the wisdom behind having three branches of government.