Commentary—

Will Citizens Get Meaningful Eminent Domain Reform?

By Timothy Sandefur

It’s been almost a year since the Supreme Court decided in Kelo v. New London that bureaucrats may seize homes and businesses through eminent domain and transfer the land to private developers in the name of economic progress. Although the Constitution says government may only condemn land for “public use,” the court held that this term means the same thing as “public purpose” or “public benefit.” Thus whenever a city council thinks it would “benefit the public” to snatch a house or small business and give it to Costco or Home Depot or any other company, they may do so, and courts will not intervene.

Americans reacted with outrage to the decision, and urged state officials to pass laws protecting them from eminent domain. But so far this backlash has achieved mixed results. Of the 16 states that have acted since Kelo was decided, only six — South Dakota, Georgia, Indiana, Pennsylvania, Minnesota, and Florida — have imposed meaningful restraints on government power. Other states have either done nothing, or have enacted laws so riddled with loopholes that they allow government to seize whatever property they consider “blighted.”

Take Alabama, for example. When Governor Bob Riley signed SB 68A into law, he proclaimed his state the leader of a “property rights revolt.” Yet while the law prohibits government from taking property merely for economic development, that restriction does not apply to property that is declared blighted, and “blight” is defined as “buildings...which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals or welfare of the community.” Under such vague standards, virtually any neighborhood can be declared a blight, and any home or business located there can be seized and given to developers.

Compare this with Florida’s new law, signed last week by Governor Jeb Bush. It declares outright that “the prevention or elimination of a slum area or blighted area...and the preservation or enhancement of the tax base are not public uses.” If government wants to clean up bad neighborhoods, it has to do so in other ways — by lowering taxes, for instance, or by making it easier to start new businesses, or by buying the land it wants fair and square.

Redevelopment officials insist that they need to be free to seize property to fix bad neighborhoods, but this just isn’t true. Major developments routinely succeed without eminent domain: Disneyland was built without condemning property. Seattle just redeveloped much of its downtown without eminent domain.

Worse, government routinely causes “blight.” By subsidizing idleness, failing to protect property rights, and stifling job creation through burdensome regulations and taxation, government often chokes economic growth. And its antigrowth policies sometimes make it prohibitively expensive to construct new housing anywhere but on land already owned by someone else. There’s something amiss when developers find it easier to cannibalize existing owners than to build new homes or shops on vacant land.

Voters in California, Michigan, and Florida will soon have the opportunity to vote on ballot initiatives to protect their homes and businesses from eminent domain abuse. These initiatives are carefully crafted, and contain no loopholes for “blighted” property. Alas, legislators in many other states have been more responsive to the lobbying of powerful developers than to the worries of average citizens who simply want their rights respected. This is unsurprising. Eminent domain, after all, is a big industry. But if home and business owners are dedicated enough, they may once again gain control over a government that is currently more interested in directing the economy than in protecting our rights to the things we’ve earned.

(Timothy Sandefur is a staff attorney at the Pacific Legal Foundation. His book, Cornerstone of Liberty: Property Rights in 21st Century America will be published this June by the Cato Institute.)