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Supreme Court hears case on government's power to seize property

WASHINGTON—The Supreme Court appeared sympathetic Tuesday toward a group of New London, Conn., homeowners fighting to keep their land, but the justices seemed equally skeptical of their own power to keep the city from seizing the property to create an upscale development.

It's the first major case on eminent domain, the power of the government to condemn property for redevelopment, to reach the high court in years. The justices fired relentless questions at a lawyer representing the New London residents about why he thought the court should be involved in this dispute and how he would have them distinguish between proper and improper property seizures.

But they also questioned the city's position that it could use eminent domain to condemn any property in order to have it developed into something that produces more tax dollars or creates more jobs.

"Say you have a Motel 6, and the city wants to turn it into a Ritz-Carlton," said Justice Sandra Day O'Connor. "Is that sufficient reason?"

Wesley W. Horton, the lawyer representing New London, said it was. As long as the first owner is compensated, and the city determines there's a public benefit in upgrading the use of the land, the Constitution's protections against improper seizures don't apply, he said.

Scott Bullock, a lawyer with the Institute for Justice, which is representing the New London residents, said Horton's standard could threaten all private property owners.

"Every home or church could be replaced by a Costco, a shopping mall or private building that would produce more tax dollars," Bullock said. "This is about limiting eminent domain to public use."

At stake are the limits of eminent domain, which cities across the country use to spur development. The court has essentially given cities carte blanche to condemn blighted slums to clear the way for more desirable development.

But the New London residents say taking property from one private owner and giving it to another who'll pay more taxes isn't covered under the public-use requirement in the Fifth Amendment.

New London, which is backed by many other cities, counters by saying economic development is a legitimate public purpose.

If the court sides with the Connecticut residents, it would cast doubt over projects around the country involving land for waterfront entertainment districts, high-rise office buildings, big-box stores and even baseball stadiums.

Justice Antonin Scalia seemed more moved Tuesday by the sense of impending loss on the other side. Even though the New London residents will be compensated for their property, "what this lady wants is not money," Scalia said of Susette Kelo, who brought the suit against New London. "It's her home." Hers is an "objection in principle," Scalia said, and it's "one that the public-use section of the Constitution seems to address."

But other justices struggled to define how the court could draw lines between what is or isn't for the public benefit, and which kinds of developments could justify property seizures.

Justice Anthony Kennedy wondered whether the distinction between blighted areas and areas in need of economic development was meaningful. "Suppose the argument was that an area in economic need would become blighted if the development didn't take place," he suggested.

Justice Stephen Breyer pondered whether a routine court review of economic development plans could determine whether property seizures were "reasonable" given the revitalization's likely benefit to the community.

And O'Connor admitted that the court's prior decisions on this issue left little room for "second-guessing" the power of eminent domain.

"I guess I'm not sure what role there is for us here," O'Connor said.


(c) 2005, Knight Ridder/Tribune Information Services.

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