Ruling could bolster efforts to protect property rights

Gov. Matt Blunt said he will seek legislation to define the proper uses of eminent domain.

JEFFERSON CITY, Mo. -- Limiting the scope of local governments' power to seize private property solely for economic development purposes could be on the Missouri Legislature's agenda next year in response to the U.S. Supreme Court's controversial ruling that the Constitution doesn't prohibit such actions.

Through the power of eminent domain, governments may take private property for public use, so long as the owner is fairly compensated. That authority traditionally is exercised when land is needed for a road or public building.

In some instances, however, cities force the transfer of property from one private owner to another with the aim of creating jobs and generating tax revenue.

In a 5-4 decision handed down Thursday, the high court held that such use of eminent domain is permissible under the Fifth Amendment. However, the court said individual states retain the authority to set whatever limits they see fit.

Missouri Gov. Matt Blunt said the ruling "dealt a blow to the property rights of private landowners" and that he will support efforts to better define in state law the proper uses of eminent domain.

"The ruling undermines the balance that ought to exist between property owners all across this country and the needs of the public," Blunt said.

Although eminent domain appropriately can be used to promote economic development in certain circumstances, such as to foster urban renewal, Blunt said government shouldn't have a blanket right to seize land whenever officials think they can generate more revenue by turning it over to someone else.

Blunt said he will solicit input from interested parties in the coming months with the goal of crafting reform legislation for lawmakers to consider next year. Missouri Attorney General Jay Nixon also said he will draft legislation for consideration.

Case precedents

In its ruling, the court's majority relied on judicial precedent to craft its interpretation of what constitutes a "public use" of seized property under the Fifth Amendment.

The court held in a 1954 case that a public interest is served when economically blighted areas are condemned for redevelopment purposes. In a 1984 case, the court said Hawaii could force the dozens of landowners that then owned nearly all of the private property in the state to break up their holdings. The public use test was met, the court said, by eliminating the "social and economic evils" of concentrated land ownership.

In the current case, New London, Conn., officials condemned a nonblighted residential area to make way for a large scale development. In challenging the city's action, the homeowners claimed private developers, not the public, were the true beneficiaries of the plan.

Writing for the court, Justice John Paul Stevens said economic development long has been considered a proper governmental function.

"Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose," Stevens wrote.

In dissent, Justice Sandra Day O'Connor argued the majority misapplied the court's past rulings to support its conclusion. The two main precedents relied on, O'Connor said, aren't applicable because in those cases public benefits were directly achieved by eliminating harmful land uses. It stretches credulity, she said, that the well-maintained homes targeted by New London are the source of social harm.

The majority conclusion, O'Connor argued, renders private property rights meaningless.

"The specter of condemnation hangs over all property," O'Connor wrote. "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."

'A last resort'

Missouri Municipal League executive director Gary Markenson said he is somewhat surprised by controversy the court has generated since all it did was uphold the status quo.

Eminent domain, Markenson said, is a necessary tool for cities to improve their communities. It is particularly vital when a developer has obtained most of land it needs but encounters resistance from one or two property owners.

"You have to have eminent domain as a last resort to get those remaining parcels or you allow a couple individuals to stymie a project that might employ hundreds of people," Markenson said.

While critics of eminent domain abuse say it allows developers to obtain property without having to pay fair market value or compensating unwilling sellers for being inconvenienced, Markenson said in his experience the opposite is true.

"Eminent domain is a lengthy are costly process," Markenson said. "Developers do everything they can to purchase property without resorting to condemnation."

In 2004, Missouri lawmakers made an effort to place tight restrictions on the use of eminent domain. What started as tough bill, however, quickly was gutted by opponents in the House of Representatives, and its sponsor let it die without reaching a vote. A similar bill was filed this year but didn't even get a committee hearing.

State Rep. Peter Myers, R-Sikeston, was a co-sponsor of the 2004 measure and is encouraged by the governor's call for action to better protect the rights of property owners.

"That gives me a big ray of hope," Myers said. "I believe in using eminent domain but using it wisely."

The case is Susette Kelo, et al., v. City of New London, et al.

mpowers@semissourian.com

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