The Kelo Backlash
LAST, JONATHAN V.
The Kelo Backlash What the Supreme Court touched off with its eminent domain decision. BY JONATHAN V. LAST A year ago, before the Supreme Court issued its decision in Kelo v. New London, the...
...The Ohio senate passed a bill that put a moratorium on the taking of non-blighted property for the purpose of economic development through the end of 2006 and established a legislative task force to look at the state's eminent domain laws...
...But New York gets the prize for cravenness...
...There are no citizen or corporate groups lined up to defend public seizures of private property...
...The Kelo decision attracted much attention and prompted state governments to rebuild protections the Supreme Court had obliterated...
...Another interesting aspect of the debate has been the lopsidedness of the votes in the legislatures...
...It's worth revisiting the oral argument in City of Norwood v. Joseph P. Horney et al, which took place before Ohio's high court on January 11...
...The only people arguing for them are developers and local politicians...
...Those vetoes may come back to haunt them...
...In the Kelo case in June 2005, the U.S...
...Jeb Bush signed a bill mandating that property seized via eminent domain cannot be transferred to another private owner for ten years...
...The village of North Hills tried to use eminent domain to seize a ritzy private golf club, Deepdale, and turn it into a public—but expensive—golf course for North Hills residents...
...Where eminent domain reform has passed, it has passed overwhelmingly...
...A lot has changed since the Kelo decision came down last year...
...Vermont governor Jim Douglas signed a law that purports to limit eminent domain takings, but includes loopholes so broad as to be effectively meaningless...
...A political aside: It may be worth noting that two Democratic presidential hopefuls—Vilsack and New Mexico governor Bill Richardson— vetoed eminent domain reform...
...BY JONATHAN V. LAST A year ago, before the Supreme Court issued its decision in Kelo v. New London, the abuse of eminent domain was practically invisible...
...This is probably because, as poll after poll demonstrates, there is no grassroots support for the expansive view of eminent domain...
...Those days are coming to an end...
...They've made a decision...
...With Democrats, those who are keyed into the rights of the oppressed and the effects of power structures are typically good, but Democrats who are into good government and civil planning are bad on the issue...
...In some states, it is Democrats who oppose reform...
...Florida, Georgia, South Dakota, and South Carolina passed the strongest reforms, although each took a different approach...
...As states have grappled with eminent domain, a strange politics has emerged...
...an open mike asking his colleagues, "Is this as big a crowd as we've ever had...
...As Scott Bullock, an attorney at the Institute for Justice (and the lawyer who argued Kelo before the Supreme Court), notes: "Republicans who are limited government types are typically good on eminent domain, but those who are tied too deeply to big business are bad...
...But in most of these states, the odds of reforms being enacted are relatively poor...
...The packed courtroom erupted in laughter...
...But some things, sadly, have not changed...
...Their strategy is to prevent reform from coming to a vote or, failing that, to dilute legislation in committee...
...Sonny Perdue, stipulated that economic development was not a "public use" and that for a property to be considered "blighted" it must be a danger to the public's health or safety...
...Kelo, that is, legitimized the government-imposed transfer of property from one private party to another, so long as the new owner claimed—he need not guarantee or provide any third-party evidence in support of this claim—that he could generate more tax revenue than the current owner...
...But not soon enough...
...Kentucky has redefined "public use," but also expanded the definition of "blight"—making its reform something of a wash...
...Other states have adopted weaker reforms...
...Other states have actually moved in the opposite direction...
...Georgia's reform, signed by Gov...
...Asked by one of the justices why the city government alone should be allowed to control property ownership, Burke replied, "These are the folks who live there...
...A new law in Iowa, for instance—enacted over the veto of Gov...
...In Connecticut, for example, Democrats in the legislature obstructed attempts to change the law...
...After the arguments were concluded, one of the justices could be heard over Jonathan V. Last is online editor of THE WEEKLY STANDARD...
...Tom Vilsack—limited the conditions in which blight could be declared and put the onus of justifying the designation on the government...
...Six states—including California and New Jersey, where eminent domain abuse is rampant—have reform legislation pending...
...Deepdale member Edward D. Herlihy wrote an op-ed about the scheme that was published in the Wall Street Journal, and the state legislature quickly passed legislation designed to protect the club...
...The irony is that, had the town taken her up on it then, there would have been no legal battle or Supreme Court ruling, and developers across America would still be quietly pushing homeowners around with the help of local governments and eminent domain...
...Attorney Timothy Burke, arguing for the city, explained that the neighborhood could be taken and handed over to the developer because it was deteriorating owing to a "diversity of ownership"—that is, lots of people owned their own homes...
...Today it's a hotbutton issue in nearly every state in the Union—not least in Ohio, where the state supreme court last month unanimously blocked the city of Norwood's attempt to clear out a middle-class residential neighborhood to make way for a private developer to build condominiums, offices, and retail space...
...But in Oklahoma it was Republicans who prevented reform from passing...
...Another justice interjected, "Counselor, couldn't the same argument be made for the homeowners...
...Since Kelo, 25 states have enacted legislation attempting to reform the use of eminent domain, some with more success than others...
...One exchange in particular captures the passions stirred by the controversy over eminent domain...
...Supreme Court held, 5-4, that it was permissible for the government to seize property by eminent domain not just for "public use," as the Constitution specifies, but for "public purpose," including potential economic gain...
...There is no real split between Democrats and Republicans...
...South Carolina's legislature passed an amendment to the state constitution that—if endorsed by the voters this November, as expected—will outlaw economically motivated takings...
...Ironically, it's a solution Kelo herself proposed years ago, when the government first came calling...
...Delaware governor Ruth Ann Minner signed legislation that reinforces the language in Kelo, making it harder for residents to find protection even in the local courts...
...They've lived there all their lives, they've walked those neighborhoods, they've seen how it has changed...
...South Dakota's new law went even further, outlawing the use of eminent domain "for transfer to any private person, nongovernmental entity, or other public-private business entity...
...The Institute for Justice, which has led the fight against eminent domain abuse, counts 14 states as having passed serious property-rights protections...
...Five state legislatures have not been in session...
...The town of New London still insists on taking Susette Kelo's land from her—though on June 30 the town agreed to allow Kelo to keep her little pink cottage and move it to another location in town...
...And then applause...
...In other words, New York passed eminent domain "reform"—but only for members of an elite golf club...
...In Florida, Gov...
Vol. 11 • August 2006 • No. 46
