Eminent Domain is the supervening power of the Government of a State in the U.S. to acquire private properties by asserting its eminent power for the sake of public use justifying that public use prevails over private rights on properties.
It literally reflects the meaning of the Latin words ‘emiens’, rising high above surrounding objects; and ‘dominium’, domain. The Dutch Jurist Grotius was the first to use this term Eminent Domain for the sovereign right of a state to appropriate private property to public uses. Though in the real sense it is imperious, Dutch Jurists have preferred the term Dominium to Imperium. In English law it is prerogative of the crown to enter upon lands of the subjects or to interfere with their enjoyment for the defense[1] of the realm.
In the U.S. context, the Eminent Domain” ‘appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.
” [2] The power of eminent domain which had been dormant was recognized by the Supreme Court in Kohl v. United States in 1876.[3] Though it is an inherent power, it has been tempered by the Fifth Amendment to the U.S.
Constitution as a check by the stipulation that the properties should not be acquired without ‘just compensation’ to the property owners. The exercise of this eminent domain power should be in furtherance of public interest or precisely public use i.e. primarily public and not primarily of private interest and merely incidentally beneficial to public.
[4] “After the due process clause of the Fifth Amendment there is a clause declaring, “nor shall private property be taken for public use without just compensation.”The Supreme Court has declared “that the power of eminent domain would inhere in the federal government without any express constitutional provision, being a power which belongs to every free government and which is incident to sovereignty, and that this power enables the federal government to take property within the States without their consent. The clause in the Fifth Amendment is not the source of this power, but merely a limitation upon its exercise.”[5] It follows that all kinds of property can be taken subject to the procedure prescribed by different legislatures.
Any deviation from this would amount to breach of the 5th Amendment of Federal constitution according to which no person shall be deprived of property without due process of law. Whether the element of compensation is necessarily involved in the invoking of eminent domain has been answered in the negative according to one school of thought.[6]. Another school of thought [7] supported by civilians says that compensation is an inherent attribute of the power.
Yet another intermediate view of Professor Thayer[8] is that “eminent domain springs from the necessities of government, while obligation to reimburse rests upon natural right of individuals. Thus the right to compensation is not a part of power to take but it arises at the same time and therefore the right cannot exist without the compensation. These views are not of practical importance in view of the 5th amendment to the Federal Constitution which prohibits exercise of the power without just compensation and the most of the States have also imposed similar limitation in their respective constitutions. Judicial decisions are also in favor of this limitation.
Eminent domain law and procedures differ from one Jurisdiction to another. But generally the respective Government attempts to negotiate the purchase of the proposed property for a fair value. If the property owner refuses to sell, the Government pursues court action to invoke its eminent domain power by serving or publishing notice of hearing as required by law. At the hearing, the Government must demonstrate that it was in good faith that it engaged in negotiations and also that taking of the property is for public use as defined by law giving the property owner opportunity to respond to Government’s claims.
In the event of the owner agreeing to sell, proceedings are held to establish fair market value and payment is made to the owner after satisfying the mortgages, liens and encumbrances if any. The title is then passed on to the Government. However, if the property owner does not agree to sell or is not satisfied with the fair market value fixed, either party can approach the court for remedy.The public use is now a concomitant factor in the eminent domain exercise.
The public use is to be understood in the context of public safety, health, interest, or convenience. Common example of a public use is the taking of land to build or expand a public road or highway, build a school or a municipal building, public park, railway line, airway, and last but not the least to redevelop a “blighted” property or neighborhood. It is the interpretation of Public use that has given rise to the present case under study.History of KeloKelos’s Background – Statement of FactsThe City of New London was classified as ‘economically distressed municipality’ in 1990 followed by another crisis of the major local employer U.
S.Undersea warfare center which closed down its operations adding another 1500 jobless people in the area. The prevalent local unemployment rate became double that of the State by 1998. [9]Concerned at these conditions, State and local officials initiated an economic revitalization plan especially for the city’s Fort Trumbull area.
As a result State approved the plan, after it was announced by the State as well as Pfizer (a pharmaceutical company) to invest on the integrated development plan which focused on the 90 acres of the Fort Trumbull area and 95% of investment was to come from Pfizer. In January 2000 the City of New London approved the plan which meant acquiring the properties of the proposed area of development by an NGO called New London Development Corporation (NLDC). By November same year, condemnation proceedings had to be initiated against the property owners who refused to voluntarily sell their land. One of them was Wilhelmina Dery who was born in her Fort Trumbull house in 1918 and has lived her entire life there.
;Kelo’s caseThe individual plaintiffs Susette Kelo et al [10], contested before the Trial Court that (1) the taking of their land was not authorized under chapter 132 of the General Statutes; (2) economic development does not constitute a valid public use under the takings clauses of the state and federal constitutions, and that these takings will not sufficiently benefit the public and bear reasonable assurances of future public use; (3) the delegation of eminent domain power to the development corporation was unconstitutional, (4) the taking of the their land on parcel 3 was not necessary to the development plan; (5) the development corporation, by allowing a private social club, but not the plaintiffs’ properties to remain on parcel 3 violated their federal and state constitutional rights to equal protection of laws. and 6) the parcel 4A properties were also not required for the development plan as the city’s general power to widen and alter roadways did not justify taking of the said parcel properties. The trial court decided in favor of the City except in respect of properties in parcel 4A. Having failed to obtain relief from the trial court, the plaintiffs in the case Susette Kelo et al appealed in the Supreme Court of Connecticut[11].
Though the case was argued on December 2, 2002, judgment was officially released on March 9, 2004.[12] The Connecticut Supreme Court not only confirmed the findings of the Trial court but also reversed its ruling in respect of parcel 4A properties.The crucial issue to be discussed further in this study is whether the action on the part of the City of New London constituted public use, all the grounds having not been agitated by the plaintiffs before the U.S.
Supreme Court. However the decisions of the Trial Court and Connecticut Supreme Court in respect of those issues which the plaintiffs did not take up in their further appeal shall be seen here in brief before dealing with in detail the case of public use.For the plaintiffs’ contention that the NLDC has no authority to condemn the property under chapter 132 of the General Statutes as the relevant clauses § 8-186 et seq.; apply to only “unified land and water areas” and “vacated commercial plants” which would mean an undeveloped land where as the plaintiffs’ land could not be called an undeveloped land, the Connecticut SC held that the term real property which is the subject matter of the Chapter 130 of General Statutes, would include all kinds of lands whether developed or undeveloped and to remove doubts of inconsistency between chapter 132 and 130 as regards the definition of real property, it has been clarified in the bill of Representative Joseph J.
Farricielli[13]. The SC of Connecticut further went on to say § 8-193(a) authorizes the acquisition of real property which does not exclude or include any specific type of real property” leaving us to conclude that power applies to “’real property’” as broadly defined in § 8-187(9).” When the commissioner’s regulations in pursuance of the General Statute provide for payment of relocation expenses, it is implied that relocation of an existing developed sites whether commercial or residential is permissible as observed by this appellate court. To conclude otherwise in agreement of the plaintiffs’ contention is to defeat the declared purpose of the Chapter 132 for economic development as no developer will come forward to take up broken pieces of land which will be unattractive to them.
Another definition which is “probative” in the words of Norcott J is that of a ‘development project’ as per General Statutes § 8-187 (4) it is ‘‘a project conducted by a municipality for the assembly, improvement and disposition of land or buildings or both to be used principally for industrial or business purposes and includes vacated commercial plants . . . .
’’ (Emphasis added.) For the plaintiffs’ contention that legislative intent did not mean to include developed lands and the above definitions and regulation were subsequently added, the appellate court has to conclude that in view of the fact that while enacting Chapter 132 of the General Statutes, the legislature in fact had “ envisioned two different types of economic development plans, one aimed at developing unified land areas, or combinations of multiple parcels of land, and the other intended to revitalize underutilized commercial buildings.”[14]The next ground of the plaintiffs’ appeal against the trial court’s verdict was regarding the public use which is discussed as the last one for the sake of continuity as it is this only ground which has been taken before the Federal Supreme Court.The third ground of appeal questions the constitutionality of the delegation of eminent domain power to the NLDC by relying on the two decisions of 1913[15].
The Connecticut College case involved allotment of land by use of eminent domain power for constructing a college for women. Although the ultimate purpose was for the general benefit of women’s empowerment by education which was none other a public purpose according to the trial court, the eminent domain power used in this was held unconstitutional since the college “did not have a legal obligation to admit to its courses of instruction to all qualified candidates, to the extent of its capacity, without religious, racial, or social distinction”Confirmed by the Supreme Court of Connecticut which pointed out the NLDC though a private entity, it was engaged by the Government for executing a public purpose of economic development of the area in question and that in fact the it is broader than the purpose of Connecticut’s college matter in which the power of eminent domain was used in furtherance of the college’s own interest whereas in the case of NLDC, it was not so. The principle laid down in Connecticut College case was. ‘‘the right of eminent domain cannot constitutionally be delegated to a private person or corporation unless for a use which is governmental in its nature, and unless the public has or can acquire a common right on equal terms to the use or benefit of the property taken; except only that the use, or right of use by the public, may be dispensed with when a public benefit results from the taking, which cannot otherwise be realized, and which continues to exist although the public has no use or benefit of the property taken.
’’ Applying this pricinciple permitting a college by use of eminent domain was not valid since the college did not satisfy the test as stated above.The fourth claim of the plaintiffs was that taking of the four homes on Parcel 3 was not a reasonable necessity to achieve the intended public use or any reasonably foreseeable needs. The plaintiff’s first contention against public use was based on the same appellate court’s reasoning in Pequannock Yacht Club, Inc V. Bridge Port that the City was ordered to reconvey the property taken under eminent domain power because “the defendants acted unreasonably when they failed to consider or even discuss integration of the plaintiff’s property into redevelopment plan and that the defendants had failed to establish that taking of the plaintiff’s property by eminent domain was therefore necessary and essential to the development plan.
” This has been replied by the appellate court by saying that plaintiffs’ reliance is misplaced as the court‘s decision was based on the General Statutes § 8-125 [16] which paves way for the Government to take an unblighted property surrounded by a blighted area if it is essential to complete development provided the Government or its agency makes a reasonable efforts to negotiate with the property owners as stipulated by case law. In that case the agency for redevelopment did not negotiate nor correspond with the Yacht Club even though the club had come forward to being incorporated into the final redevelopment plan. But in the present case the plaintiffs failed to provide any evidence to show that taking was a product of bad faith or abuse of power except for their expert’s testimony that there were alternative sites available. The Appellate court recalled its decision in Gohld Realty Co.
V Hartford and stated that as envisaged under Chapter 132 of the General Statutes the development plan in the present case sought to create economic benefits by creation of additional jobs, increasing tax and other revenues which amounted to public use under state and federal constitutions.The second part of the plaintiffs’ case was Parcel 4A takings were not for reasonable foreseeable needs relying on the Arizona’s Appellate court in Phoenix V. McCullough wherein the city had admitted that it did not have a specific plan for use of the impugned properties within a time frame. As against this, the Connecticut Appellate court has said that reasoning in the McCullough case can not be applied in the present case because of different set of facts of carefully considered predictions of development and market growth in the wake Pfizer’s major facility already in the making and also of the time frame 0f 2010 by which demand for space has been projected in the development plan.
This is quite the opposite of the uncertainty of fifteen to forty six year gap feared in McCullough’s case. Therefore the claim of absence of reasonable necessity and foreseeable need is effectively countered by the Appellate court.Not stopping with this, the appellate court also reversed the trial court’s finding that a Parcel 4A property was not reasonably necessary. Even though the trial court had found that the there was no definite plan with the NLDC for the said parcels, the appellate court’s view of the decision in the trial court abused its discretion by granting permanent injunctive relief in respect of parcel 4A by going beyond the standard of review not applicable to Connecticut.
. The appellate court opined that as long as there was no dispute that taking was in bad faith, unreasonable, or abuse of power a guiding factor for the trial court to factually decides, there can be no reason within its power to grant permanent injunctive relief simply because the development agency had no development plan.;The fifth claim of the plaintiffs was violation of equal protection clauses of Connecticut [17]and Federal[18] Constitutions in view of the fact that Italian Dramatic Club’s property was not taken over although it was located on the same parcels. The actual situation is that while the plaintiffs’ properties were in the interior area as a hindrance to the development plan, the Italian club was in the border and the social activities of the club which is very old was in conjunction with the development plan and would further the economic and social development of the area.
The contention of the plaintiffs that the club was spared only to placate the political bigwigs was not substantiated by any proof by the plaintiffs. Even assuming the plaintiffs and the dramatic club were similarly placed, the application of rational basis test as summarized by the U.S.Supreme Court in Nordlinger v.
Hahn [19] did not infringe upon the fundamental right of the affected group.The appellate court in the present case held that equal protection clause satisfied so long as there is a plausible policy reason for the classification. The plaintiffs’ citation that trial court’s decision was in violation of the ruling in Willowbrook V Oleh by U.S.
Supreme court [20] has been countered by the appellate court stating that the same was in fact discussed by them in another case of City Recycling, Inc V. State [21] in which plaintiff had opposed to the amendment to General Statutes § 22a -208 [22] which prohibited from approving his volume reduction plants for the reason of a child day care centre having been located within 1.25 miles. The appellate court observed in its decision that “‘‘[u]under the principles of our equal protection jurisprudence, we conclude that P.
A. 97-300,§ 2, is unconstitutional as applied, because it is violative of the plaintiff’s equal protection rights. The factual findings of the trial court negate any rational basis ofwhich we can conceive, the most obvious of which is that the expansion of the plaintiff’s facility would have some negative impact on children in the day care center located within one-quarter mile off the facility. The plaintiff’s equal protection claim is particularly compelling in light of the legislative history of P.
A. 97-300, § 2, which demonstrates that the legislation was aimed solely at the plaintiff’s permit application.’’But in the present case the appellate court found that in the records of the plaintiffs’ trail briefs and trail court’s memorandum of decision, the plaintiff have failed to offer arguments in support of their stand that NLDC’s sparing of the Club from the taking lacked any conceivable rational basis except mentioning of preferential treatment. As already stated that in view of the rational basis and plausible reasons adduced by the City and the plaintiff’s failure to show high burden of proof, the appellate court concluded that there was no violation of equal protection of laws between the club’s buildings and that of the plaintiffs.
The principal issue in this case according the appellate court is the plaintiffs’ contention that economic development is not a public use under both the State as well as Federal Constitutions. The plaintiffs contended that (1) economic development envisaged under chapter 132 of the General Statutes did not constitute a public use under article first § 11 of the Connecticut constitution[23] and 5th amendment to the U.S.Constitution.
[24] , (2) that assuming that economic development is public use, it did promote public benefits to justify constitutionality and (3) acquisition of Parcel 3 ; 4A properties did not guarantee public use as private parties would have control over the said parcels’ use. The appellate court of Connecticut said that the language of §8-186 of the General statues [25] did not violate the public use clauses of the respective constitutions. The Connecticut S.C.
confirmed the trial court’s reliance on the decisions in Hawaii Housing Authority V. Midkiff [26] and Berman V parker [27] , Katz V Brandon [28], Gohld Realty Co. v Hartford [29]and Olmstead v. Camp[30] in all of which U.
S.Supreme Court have taken broad and purposive view of the public issue concept and both the S.C.Connecticut and U.
S.Supreme Court have adopted deferential approach to the pronouncements of public use. The plaintiffs had pointed out the decision in South Western Illinois Development Authority V National City Environmental, LLC asserting that economic development projects by themselves do not constitute public use and they also drew the appellate Court’s attention to the fact that courts of Arkansas, Florida, Kentucky, Maine, New Hampshire, South Carolina, and Washington did not also recognize that economic development schemes by themselves could not make out case for public use.[31].
The Connecticut Supreme Court justified its broad view of the public use ever since 1866 in Olmstead case in which even letting a mill owner to flood his neighbor’s land by paying him compensation , as result of making improvement to the water sources of pond and dam which powered the mill owner’s mill leading to economic development of the area.Stating that it laid the foundation of public use with broader perspective as early as in 1866, it justified that public use should mean public usefulness, utility or advantage or what is productive of general benefit. In order to use the power of eminent domain for the greatest advantage for the community, the power of eminent domain needs a ‘degree of elasticity to be capable of meeting new conditions and improvements and the ever increasing necessities of the society.’The next claim within this public use concept was that public would not benefit sufficiently by the takings and there was no also assurance for future public use even if the economic development constituted public use.
The appellate court found that the economic development plan of the NLDC was not to directly benefit the private entity of Pfizer. All that Pfizer had wanted was to improve water facilities in the area, restore the public park and space for staff quarters. On the other hand NLDC saw Pfizer facility as a catalyst for the development of the area and did not want to miss the opportunity of rescuing the distressed city New London by formulating a plan which projected generation thousands of construction jobs, 1000 direct jobs, increase of property tax revenues between $ 680,544 to $ 1,249,843 from its existing level of $325,000 in addition to 2000 jobs that Pfizer would generate. The appellate court however stated that this was not a license for taking private property in the name of public issue.
The plaintiffs’ reliance on the Casino Reinvestment Development Authority V Banin [32] wherein the eminent domain was sought to exercised to acquire area for parks and water facility mainly to benefit a private entity., but in the present case the development plans had sufficient safeguards against such eventualities such as (1) the durational clause providing that ‘‘[t]he development plan and/or any modification hereof shall be in full force and effect for a period of thirty years from the date of first approval of this development plan by the city council of the city’ and (2) other land use restrictions contained therein.[33] according to the appellate court.The judgment of the Connecticut Supreme Court with one Judge dissenting was challenged in the U.
S.Supreme Court by a writ of Certiorari on only one ground of Public issue. The opinion of the Supreme Court delivered on June 23, 2005 has been equally divided with just one majority. The majority opinion concurred with the Connecticut Supreme court ‘s decision stating that the U.
S. Supreme Court has all along been holding for the last nearly 150 years that literal requirement of use for the general public is not necessary to invoke Eminent Domain Power. The Court has held that the public use should be seen in the broader perspective of public purpose as early as in 1896.[34]Thus in a case of a mining company involving a bucket line to pass over a land not owned the mining company, the public use was recognized by the Court.
[35] . The U.S.Supreme Court has observed ever since 1906, narrow view of the terms public use to mean only ‘for general public’ has been done way with.
It’s response now in this casetowards the petitioners’ request to apply bright-line rule[36], has been negative saying that petitioners’ proposal has neither precedent nor logic. To the petitioners’ contention that using of eminent domain for economic development has blurred the boundary between public use and private use, the court has held that benefit to individuals in a public purpose can not be avoided. It cites the case Monsanto [37] wherein the court has already recognized that though data sharing benefits went to subsequent pesticide applicants.it promoted competition in the pesticide market .
However the dissenting O’Connor J., quote Justice Chase after the Bill of Rights was ratified over 200 years ago that “an act of legislature ( he can not call it law) contrary to the great first principles of social compact, cannot be considered a rightful exercise of legislative authority. A law that takes property from A and gives it to B is against all reason and justice for a people to entrust a Legislature with such powers and therefore it cannot be presumed that they have done it. [38] (Emphasis deleted!)” He goes on to say that court has abandoned the long- held basic limitation on Government power.
In the name of economic development all property have become vulnerable to being taken over and given to another who will use it for more beneficial public use. This in effect deletes the distinction between private use and public use according to him. O’Connor, J says that economic development taking is not constitutional backed by two precedents in Berman[39] and Midkiff [40] cases. In Berman it was the problem of 64.
3% of the dwellings which had been blighted so the eminent domain power was justified to take over the area in Toto and sacrificing Mr Berman’s department stores for the common benefit of freeing the area from the harms of blighted neighborhood. In Midkiff, the eminent domain was invoked to circumvent the oligopolistic situation with 47 % of the entire State‘s land in the hands of mere 72 land owners. In both these situations it was taking’s purpose and not its mechanics that passed for scrutiny. He thus comes to the conclusions by expanding the scope of public use to mere secondary benefits of tax revenues or even for ascethetic pleasure, it would in effect remove absolutely any restraint on eminent domain power.
The problem with the taking for economic development is that both private and public are benefited. Private and public benefits are merged and mutually reinforcing. In the present case the, any extraordinary profit for Pfizer or the developer is difficult to distinguish from the promised public gains in taxes and jobs. Even if it is possible to isolate the motives behind the taking, overstretch of the purpose test is theoretically flawed as opined by O,Connor, J.
He adds that the due process clause is made redundant by the generous of interpretation of pubic use. Joining him in the dissent is Thomas. J who introduces in his dissent the two typical terms Public use and general welfare which are different in meaning and have been used by the framers of the constitutions in different contexts and the terms public use should only be used in the negative context of public nuisance, blightedness etc.;The analysis of Connecticut and U.
S. Supreme Court decisions having been briefly seen as above, following are some of the reactions from the Scholars on the subject of eminent domain.Analysis by David L. Kallies calls it a requiem [41] for public use clause.
Even before the present case, there was little left for public use clause at least in the federal court. While some State Supreme court decisions and federal decisions applying state law have found that economic revitalization for public purposes as constitutionally invalid [42] for invoking eminent domain power, equal number of decisions agreed with the Connecticut Supreme Court that this is a valid public use and that dissenting voices of Justices O’Connor and Thomas are overwhelming and difficult to argue against. Though there is no doubt that State and Local Governments would only do good for public welfare and public benefits through economic revitalization programms through the relaxed standards of eminent domain, public use clause is not just a simple policy but a bedrock principle enshrined in the Bill of Rights amendments to the Federal Constitutions as a shield against majoritarian excesses at the cost of miniscule minority like Kelos.It is unfortunate that the Federal Court has not responded to the brief of Amica Jane Jacobs [43] in support of the petitioners praying for at least to require courts to consider social cost of condemnations and to make a binding on the new owners of acquired properties to produce economic benefits to justify condemnations.
There is no plausible response to the amica’s plea that cost of social condemnations far outweighs the economic benefits arising out of condemnations of economic condemnations. The court has chosen to ignore her repeated pointing out of the case of The Poletown takings which have failed to produce any clear net economic benefit for the city. The GM plant for which takings was effected, not only created far fewer jobs than promised but also produced limited economic benefits far less than the economic harm it caused to the city in that public cost of preparing a cite for the General Motors was over $200 million but the GM paid to the city only $ 8 million to acquire the property. Besides the economic damage it inflicted by destruction of about 600 businesses and 1400 residences can not be lost sight of.
The amica’s citing of decision by Michigan in Hathcock‘s case that economic condemnations are not necessary for large scale projects which can succeed without exercise of eminent domain. And that if a project is sound enough that its owners can reasonably expect to make profit, there is usually no reason why they cannot acquire necessary land through voluntary transactions, has not evoked any response from the Federal Court. The Michigan Supreme court in Hathcock [44] overruled its own decision in Poletown case in 1981 in which the dissenting judge Fitzgerald cautioned that“the decision that the prospect of increased employment, tax revenue, and general economic stimulation makes a taking of private property for transfer to another private party sufficiently ‘public’ to authorize the use of the power of eminent domain means that there is virtually no limit to the use of condemnation to aid private businesses.”[45] Unfortunately Hathcock decision was preceded by the Connecticut judgment in Kelo.
But the Federal court could have taken a cue from the Hathcock decision which was in fact pointed out by the Amica.In the wake of the decision in Kelo, a concerned congressional response came in the form of a bill introduced on July 5, 2005 by U.S.Senator John Cornyn entitled ‘The Protection of Homes, Small Businesses, and Private Property Act of 2005” The Act sought prohibit transfer of private property from one private owner to another private owner, without existing owner’s consent, if federal funds were used and the purpose of the transfer was for economic development instead of public use.
The Act can come into play only if federal funds are used whether by Federal Government or by State and local governments. The Congress can not restrict State’s exercise of Eminent Domain Power if it does not use Federal funds.;Prof Rosen [46] on the Constitution Day presented among other issues a brief about the case of Kelo. As future implications and ramifications in respect of security of private property, he states that it remains to be seen whether the presence of many factors as part of comprehensive economic development plan will be recognized by subsequent case law.
He further states “the cases relied on by the Court to illustrate deference to legislative judgments all involved CONGRESS or the STATES. Should constitutional doctrine be less deferential to the judgment of LOCAL GOVERNMENTS, particularly here where the local government delegated considerable authority to a private nonprofit entity whose decisions arguably were but rubber-stamped?”;Thelma Drake [47] wrote on July I, 2005 “”The takeover of one person’s property to give it to another person for [economic purposes] is just plain wrong. Economic development should never be considered a public use.”Quoting the above James A Davids[48] urged the Federal government to act in Virginia beach case to resist the move of Virginia Beach City Council to use eminent domain clause for economic development failing which the Defence Base Realignment and Closure Commission had threatened to move its squadrons to another base to facilitate crash landing of its jets.
“ The justification for this condemnation authority is solely economic. Virginia Beach will not use the condemned land for schools or roads (“public use”). Rather, this land will simply lie fallow, and will only be used to slow down a crashing pilot. The real reason for the condemnation authority is to keep Virginia Beach’s largest employer from relocating.
” In article contributed by Kirkwood in New American [49] , he has stated that the decision in Kelo may embolden revenue-starved state legislatures to amend state constitutions in the lines of New London and more municipalities will also act alike.“The unconstitutional federal subsidies should be axed anyway. Congress must curb the power of federal courts, including the Supreme Court, by pruning their jurisdiction”.Sheldon Richman [50] on July 7, 2005 wrote in Hawaii Reporter that the people were now less secure than they were on Jun 22 when this decision on Kelo was pronounced by the Federal Court.
In her own humble way the Susette Kelo has said in interview that her house is on the water and as she is just a nurse and can not buy another house on the water. Before concluding it is worth going through the relevant portions of the American Constitution. K.Burdick[51] states that due process is complied with if the property is taken by eminent domain for a public use.
The fifth amendment to the constitution end with “nor shall private property be taken for public use without just compensation” But this amendment applies only to the National Government. According to him , all the states have adopted similar constitutional provisions except Kansas, New Hampshire and North Carolina. The Federal Constitution does not expressly prohibit the States from taking of private property without compensation, under their power of eminent domain.;American Planning Association (APA) which is closely monitoring updates regularly information under the title “Eminent Domain Legislation Across America” says few issues have caught the attention of state legislatures in the recent years as a result of U.
S.Supreme Court’s ruling in Kelo v. City of New London. Almost 45 states have considered reforms in eminent domain which range from broad, constitutional prohibitions to procedural changes in the use of eminent domain.
The APA is of the opinion that states are the appropriate forum for redevelopment reform and not the Federal Govt. Reform in the right manner will guarantee fairness and that legislation must be carefully drafted to avoid unintended repercussions that would affect the ability of local citizens to improve their neighborhood and quality of life. It is learnt that on April 4, 2006 Georgia Gov. Sunny Perdue has signed HB 1313 into law and it is expected that a constitutional amendment will appear on November ballot in additional to several changes to usage of Eminent domain in Georgia.
Further New Mexico Gov. Bill Richardson vetoed eminent domain legislation on the grounds of ambiguity in few sections that would cause undue harm. He intends to appoint a commission to make recommendations on the eminent domain reforms. Orange County, California will probably become the first in the country on June 6, 2006 as restrictions on eminent domains for economic development have already qualified for the ballot.
In Minnesota a far-reaching amendment on historic preservation is on the cards though preservation activists are resisting the move. The amendment states that “ any preservation designation or regulation that “reduced the fair market value of real property or interferes with the owner’s use and quiet enjoyment of the property, constitutes a regulatory taking for which the owner must be paid just compensation.”Following information on Eminent Domain measures has been gathered from the updates of American Planning Association.;Enacted Legislation in 2006GeorgiaIdahoIndianaKentuckySouth DakotaUtahWisconsinApproved and Awaiting Governor’s SignatureWest VirginiaBills in ConferenceKansasBills Approved by State House or SenateAlaskaArizonaColoradoIllinoisMinnesotaVermontDefeated or VetoedMississippiNew MexicoVirginiaWashingtonWyomingBallot Measures / Constitutional AmendmentsGeorgia (November 2006)Michigan (November 2006)Orange County, California (June 2006) ConclusionWhat started as small impetus to the growth of Eminent Domain in the case of Berman v.
Parker where in the Department Store owner Berman in Washington D.C. was confronted with the Governmental action to demolish his store to make way for an urban renewal project and was ultimately turned down by the U.S.
Supreme Court under the pretext of Eminent Domain, has now taken serious proportions as to evoke nation wide debate against the decision of the U.S. Supreme court in Kelo V New London as an extreme perversion in the name of Eminent Domain. Indeed it seems to be a blank check to the Powers that be ( politicians) acting behind the scene to dispossess the home owners in favor of their patrons in the business and industry though not explicitly but covertly under the guise of Economic Development and Town Planning etc.
In this particular case arguments seem to have lost sight of why the Naval undersea warfare center was allowed to die in the first place. Why did not the same NLDC or the City Council stop that to prevent loss of jobs? If that was not a catalyst for the economic growth, how any other project will be come a catalyst. Has any study proved that this part of the city had inherent inertia for non development? A noteworthy feature in the judgment is the laser thin majority. Practically it is equally divided which should send feelers that something somewhere is misplaced.
If one can read between the lines, it can be well understood though the Plaintiff was under a weak wicket of burden of proof for the malafides etc on the part of the NLDC or City Council. Should they (Kelo) have not been given the benefit of doubt especially when the Federal court says that it cannot interfere with the legislative intentions ?. [1] A. G.
v. Tomline; 1879; 12 Ch. D. 214[2] Boom Co.
v. Patterson, 98 U.S. 403, 406 (1879).
[3] 91 U.S. 367 (1876).[4] Madisonyule Traction Co.
v. Mining Co., 1904, 196 U.S.
239[5] Kohl v. United States ( 1875) 91 U. S. 367; United States v.
Jones ( 1883) 109 U. S. 513. page 419The Law of the American Constitution: Its Origin and DevelopmentBook by Charles K.
Burdick; G.P.[6] see Lewis, Eminent Domain, s. 10[7] see Randolph, Eminent Domain, 5.
227; Mills, Eminent Domain, s. I[8] Cases on Constitutional Law, vol. 1, 953[9] Kelo v City of New London, No.04-108 slip op.
at 2(2005) (Stevens, J.)[10] Susette Kelo ,Thelma Brelesky, Pasquale Cristofaro, Margherita Cristofaro, Wilhelmina Dery, James Guretsky, Laura Guretsky, Pattaya Construction Limited Partnership and William Van Winkle.[11] Susette Kelo et al. v.
City of New London et al.(SC16742)[12] Sullivan, C.J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.
[13] See 23 H.R. Proc., Pt.
2, 1980 Sess., p. 453, remarksof Representative Joseph J. Farricielli (‘‘This bill wouldattempt to remove confusing language defining landand the real property in Chapter 132 as compared toChapter 130 of the General Statutes.
It would clarifythe meaning of real property as applied to state assistedmunicipal industrial development rights.’’);[14] Norcot, J SUSETTE KELO ET AL. v. CITY OF NEW LONDON ET AL.
(SC 16742)[15] Connectcut College V Calver, 87 Conn. 421, 427, 88A. 633(1913) and Gohld Realty Co. V.
Hartford, supra, 141 Conn. 144-45.[16] General Statutes § 8-125 (b) provides: ‘‘ ‘Redevelopment area’ means anarea within the state which is deteriorated, deteriorating, substandard ordetrimental to the safety, health, morals or welfare of the community. Anarea may consist partly or wholly of vacant or unimproved land or of landwith structures and improvements thereon, and may include structures notin themselves substandard or insanitary which are found to be essentialto complete an adequate unit of development, if the redevelopment areais deteriorated, deteriorating, substandard or detrimental.
An area mayinclude properties not contiguous to each other. An area may include allor part of the territorial limits of any fire district, sewer district, fire andsewer district, lighting district, village, beach or improvement associationor any other district or association, wholly within a town and having thepower to make appropriations or to levy taxes, whether or not such entityis chartered by the General Assembly . . .
.’’ (Emphasis added.)[17] 90 Article first, § 20, of the constitution of Connecticut provides in relevant part: ‘‘No person shall be denied the equal protection of the law . .
. .’’91[18] 91 The fourteenth amendment to the United States constitution, § 1, providesin relevant part: ‘‘No State shall . .
. deny to any person within its jurisdiction the equal protection of the laws.’’ [19] 505 U.S.
1, 8, 112S. Ct. 2326, 120 L. Ed.
2d 1 (1992);[20] 528 U.S. 562,565, 120 S. Ct.
1073, 145 L. Ed. 2d 1060 (2000)[21] City Recycling,Inc. v.
State, 257 Conn. 429, 445–46, 778 A.2d 77 (2001).[22] No.
97-300, § 2, of the 1997 Public Acts (P.A. 97-300)[23] Article first, § 11, of the constitution of Connecticut provides: ‘‘The property of no person shall be taken for public use, without just compensation therefore.”[24] The fifth amendment’s public use clause has been made applicable to the states through the fourteenth amendment to the United States constitution.
See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.
S. 229, 231, 104 S. Ct. 2321, 81 L.
Ed. 2d 186 (1984)[25] ‘‘that the economic welfare of the state depends upon the continued growth of industry and business within the state; that the acquisition and improvement of unified land and water areas and vacated commercial plants to meet the needs of industry and business should be in accordance with local, regional and state planning objectives; that such acquisition and improvement often cannot be accomplished through the ordinary operations of private enterprise at competitive rates of progress and economies of cost; that permitting and assisting municipalities to acquire and improve unified land and water areas and to acquire and improve or demolish vacated commercial plants for industrial and business purposes . . .
are public uses and purposes for which public moneys may be expended; and that the necessity in the public interest for the provisions of this chapter is hereby declared as a matter of legislative determination.’’[26] Hawaii HousingAuthority v. Midkiff, 467 U.S.
229, 239–40, 104 S. Ct.2321, 81 L. Ed.
2d 186 (1984),[27] Berman v. Parker, 348U.S. 26, 31–32, 75 S.
Ct. 98, 99 L. Ed. 27 (1954),[28] Katz v.
Brandon, 156 Conn. 521, 532–34, 245 A.2d 579 (1968),[29] Gohld Realty Co. v.
Hartford, 141 Conn. 135, 141–43,104 A.2d 365 (1954),[30] Olmstead v. Camp, 33 Conn.
532, 546 (1866).[31] The leading treatise on eminent domain states that there are two competingdefinitions of the term ‘‘public use’’—a ‘‘narrow’’ definition and a ‘‘broad’’definition. 2A P. Nichols, Eminent Domain (3d Ed.
Rev. 2003, J. Sackmaned.) § 7.
02[2] through [7], pp. 7-26 through 7-37. The ‘‘broad’’ definitionprovides that ‘‘ ‘public use’ means ‘public advantage.’ Any eminent domainaction which tends to enlarge resources, increase industrial energies, orpromote the productive power of any considerable number of inhabitantsof a state or community manifestly contributes to the general welfare andprosperity of the whole community and thus constitutes a valid public use.
Under this view of ‘public use,’ it has been held that the scope of eminentdomain is both ‘coterminous with the scope of the sovereign’s police powers,’as well as its constitutional taxing authority.’’ Id., § 7.02[3], pp.
7-29 through7-32.In contrast, under the ‘‘narrow’’ definition, ‘‘to make a use public meansthat the property acquired by eminent domain must actually be used by thepublic or that the public must have the opportunity to use the propertytaken.’’ Id., § 7.
02[2], p. 7-26. The treatise states that the ‘‘broad’’ view ofeminent domain generally has gained greater acceptance among the federaland state courts; id., § 7.
02[5], pp. 7-35 through 7-36; but that neither definitioncomprehensively can explain all eminent domain public use holdings;id., § 7.02[6] and [7], pp.
7-36 through 7-37; concluding that ‘‘[f]urther effortsat providing a precise definition of ‘public use’ are doomed to fail, and manycourts have recognized this . . . .
’’ Id., § 7.02[7], p. 7-37.
42 See 2A P. Nichols, Eminent Domain (3d Ed. Rev. 2003, J.
Sackman ed.)§ 7.02[2], pp. 7-26 through 7-29[32] Casino ReinvestmentDevelopment Authority v.
Banin, 320 N.J. Super. 342, 354–58, 727 A.
2d 102 (1998),[33] The development plan provides, in addition to an antidiscriminationclause, that the redeveloper must ‘‘[agree] for itself and its successors andassigns as successors in interest to the parcel, or any part thereof, that thedeed conveying the Parcel shall contain language covenanting on the partof Redeveloper and its successors and assigns that:‘‘The Parcel shall be devoted principally to the uses contemplated by thePlan, and shall not be used or devoted for any other purpose, or contraryto any of the limitations or requirements of said Plan. All improvementsmade pursuant to the Plan and this Agreement shall be used in accordancewith the Plan unless prior written consent is given by the [developmentcorporation] and [department] for a different use;‘‘The Parcel shall not be sold, leased, or otherwise disposed of for thepurposes of speculation.’’[34] See Fallbrook Irrigation District. V Bradley, 164 U.
S. 112, 158-164 (1896)[35] See Strickley V Highland Boy Gold Mining Co., 200 U.S.
527, 531 (1906)[36] bright-line rule = a judicial rule of decision that is simple and straightforward and that avoids or ignore the ambiguities or difficulties of the problems at hand. The phrase dates from the mid-20th century. The metaphor of a bright line is somewhat older than the phrase bright-line rule – e.g.
: “The difficult part of this case comes with regard to … the activity of the Board of Temperance .
…A bright line between that which brings conviction to one person and its influence on the body politic cannot be drawn.
” Girard Trust Co. v. I.R.
C., 122 F.2d 108, 110 (3d Cir. 1941).
/”[T]he McCambridge majority opinion … agrees that the Kirby bright-line-rule is but a mere formalism .
…” J.
G.Trichter, Bright-Lining Away the Right to Counsel, Tex. Law., 6 Nov.
1989, at 26. Cf. hard and fast rule.[37] Monsanto 467 U.
S. 986[38] Calder V Bull, 3 Dall. 386,388(1798)[39] 348 U.S.
at 30[40] 467 U.S., at 244[41] The Benjamin A. Kudo Professor of Law at the William S.
Richardson School of law[42] See, e.g., the decisions in Hathcock, supra n.6; Southwestern Illinois Dev.
Auth. v. Nat’l CityEnvtl., L.
L.C., 768 N.E.
2d 1 (Ill. 2001).[43] The amica is a world-renowned scholar in the field of urban policy and economic development. Her 1961 book, The Death and Life Great American Cities, revolutionized the field of urban studies and showed how the indiscriminate use of coercive large-scale planning and renewal programs often harms the very communities that it is ostensible intended to help.
[44] County of Wayne V. Hathcock, 471 Mich. 445, 684 N.W.
2d 765(2004)[45] Poletown Neighborhood Council V. City of Detroit, 410 Mich 616, , 304 N.W. 2d 455(1981)[46] Professor Mark D.
Rosen, University of Minnesota Law School612-624-7527[47] Rep. Thelma Drake, Norfolk Virginian-Pilot, July 1, 2005, p. B11.)[48] The Washington Times, December 12, 2005, James A.
Davids is assistant dean of the Robertson School of Government at Regent University.[49] R. Cort Kirkwood; The New American, Vol. 21, July 25, 2005[50] Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine.
[51] The Law of the American Constitution: Its Origin and Development. Contributors: Charles K. Burdick – author. Publisher: G.
P. Putnam’s Sons. Place of Publication: New York. Publication Year: 1922.
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