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Sapere aude - dare to be wise
Friday, February 25, 2005
This Land Was You Land
Posted 12:59 PM by Brian D.
Seven justices of the Supreme Court held oral arguments yesterday in the Kelo v. New London case, possibly the most significant eminent domain case since Poletown. Seven families in an economically depressed working-class Victorian neighborhood are fighting the city of New London's plan to use eminent domain against them for private redevelopment. The Fifth Amendment requires that owners are given "just compensation" and that the land in question go to a "public use." Traditionally eminent domain was used to build public works such as roads, bridges, railroads, and convention centers.
But in a 1954 case, Berman v. Parker, the Supreme Court found that "public use"
could include condemning blighted neighborhoods to build better ones. Fort
Trumbull isn't blighted, but since the Michigan Supreme Court decided its famous Poletown case in 1981—razing hundreds of homes to build
a GM plant—many jurisdictions have insisted that increased tax revenues and
the prospect of new jobs was "public use" enough to justify nabbing land that
subsequently became Costcos, shopping malls, and fancy office buildings.

To demonstrate how far this concept can go the homeowners' attorney stated, ""Every home, church, and corner store would produce more tax revenue if it was turned into a shopping mall[.]" . . . There can be no limit to what the state can condemn if the only requirement is that the proposed project improve the tax base." The attorney asked the court "to implement two requirements in eminent domain cases: some proof that the proposed future use is truly likely to happen, and his backup test—that there be "minimum standards" showing actual benefits to taxpayers."

City of New London attorney, Wesley Horton, when answering questions about this nearly unlimited use of eminent domain had this exchange with the Justices.
[Justice O'Connor asking,] What if there's a Motel 6 but the city thinks a Ritz-Carlton will generate more taxes? Is that OK?
Yes, says Horton.
"So you can always take from A and give to B if B pays more taxes?" asks Scalia.
"If they are significantly more taxes," says Horton
"But that will always happen. Unless it's a firehouse or a school," protests Kennedy.

In my Property class I thought Poletown was wrongly decided. It was bad enough a working class neighborhood was demolished for the benefit of General Motors. Ironically enough a neighborhood that had several GM employees working at it. The fact the neighborhood became a asphalt parking lot for the plant added insult to the injury. The article writer, Dahlia Lithwick, believes that, "It doesn't look like the good folks of Fort Trumbull will garner many votes today at all—save for that of Justice Scalia, who channels the many libertarian amici in this case when he repeats that you can constitutionally condemn land and give it to a private entity—a railroad or public utility. "But you can't give it to a private corporation just because it might increase taxes.""

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