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Governments can seize private land, high court rules

WASHINGTON—The Supreme Court on Thursday said the Constitution doesn't prohibit local governments from seizing private property for other private uses, so long as it's developed for the public benefit.

The 5-4 ruling clears the way for New London, Conn., to condemn some private homes for a new office and retail complex. It gives other cities and towns more leeway to buy and raze homes, churches and other properties that yield little tax revenue to make way for shopping malls or office buildings, even if they aren't in blighted areas.

"We do not minimize the hardship that condemnation may entail," Justice John Paul Stevens wrote for the court majority. But for constitutional purposes, economic development counts as public use, Stevens said.

The justices were disinclined to "second-guess" New London's determination that the area in question would produce greater public benefit under different private ownership. That's a question for states to answer, through their legislatures and courts, Stevens said.

The decision was described by property rights advocates, including the court's four dissenters, as a serious blow to protections against government power.

"Today nearly all real property is susceptible to condemnation on the court's theory," Justice Sandra Day O'Connor wrote in opposition to the ruling. "Any property may now be taken for the benefit of another private party."

O'Connor said the opinion would result in a shift of property away from poor owners in favor of those with "disproportionate influence and power."

Justice Clarence Thomas went further in his dissent, arguing that the court's decision "regrettably" would exacerbate the harmful effects that urban renewal projects have had on African-American communities.

"Urban renewal projects have long been associated with the displacement of blacks," Thomas wrote, quoting from an article in the Yale Law and Policy Review, which noted that urban renewal was once known as "Negro removal."

The New London case springs from a longtime effort by that city to boost tax revenues from a waterfront neighborhood that was mostly residential. In 1998, pharmaceutical manufacturer Pfizer announced plans to build a research facility near the neighborhood, and the city quickly developed an ambitious plan to redevelop the entire area to complement the new facility.

Susette Kelo, who has lived in the area all her life, and eight other homeowners, refused to sell their properties, saying they wanted to stay in their homes. The city began condemnation proceedings, prompting the homeowners to sue.

At issue in their suit was how to interpret the Constitution's restrictions on the government's right to seize private lands. In general, government can take private land only for public uses such as railroads or utilities. But under certain extraordinary circumstances, private land can be seized simply for public purposes. The court, however, previously had explicitly approved of such seizures only in blighted areas.

The New London case challenged the court to decide whether economic development in non-blighted areas can also be considered a valid public purpose.

In recent years, property rights advocates have made political gains by linking property seizures to other kinds of government intrusions on property rights. Urban and suburban dwellers who face condemnation now have allies in rural landowners who oppose government regulations to preserve wetlands or protect endangered species.

"Before this case, it was an open-ended constitutional question, and most cities, rather than pursue that route, would find other ways to redevelop non-blighted areas," said David Snyder, a lawyer with Fox Rothschild in Philadelphia who specializes in property seizure cases. "And the ruling here is definitive. So long as they dot their i's and cross their t's to prove that the economic development will help, the court is saying there's no problem."

Timothy Dowling, the chief counsel at the Community Rights Counsel, a nonprofit that filed a brief urging the court to support New London's efforts, said Thursday's ruling protects jobs for residents in cities around the country and greater tax revenues for services such as police protection and child welfare.

"With today's decision, no one's property is safe," said Roger Pilon, the director of the Center for Constitutional Studies at the libertarian Cato institute. Cato filed a brief in the case asking that New London's proposed seizures be blocked. "Any time a government official thinks someone else can make better use of your property than you're doing, he can order it condemned and transferred."

Jared Leland, the legal adviser for the Becket Fund for Religious Liberty, said churches could be especially vulnerable after Thursday's ruling.

"Because all houses of worship are tax-exempt, they will continue to be attractive targets for seizure by revenue-hungry local governments," Leland said. "We've already seen attempts to take them in favor of a Costco in California and a condo development in New Jersey."


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

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