EMINENT DOMAIN 101
What is eminent domain?
There are two kinds of eminent domain you should know about.
1) There is the commonly known use of eminent domain as the power of government to seize private property by force for essential public uses such as schools, fire stations, roads, and to eliminate threats to public health and safety. We accept the necessity that legitimate public uses may occasionally take precedence over our private property rights.
2) There is another use of eminent domain that threatens every person in California and throughout the nation. In California, as in many other states, our homes, businesses and places of worship can be seized by a Redevelopment Agency and turned over to another private entity for their financial gain. Since 1954 the U.S. Supreme Court has allowed expansion of the meaning of public use to include economic development.
What is the Kelo vs. New London Supreme Court Case and why is it important?
This past summer, the Kelo Supreme Court case was the first review of eminent domain powers in over 50 years. The Fifth Amendment prohibits the taking of property by government except for “public use.” The Supreme Court confirmed by a 5-4 decision an interpretation that considers economic development a public use.
Most people thought that eminent domain could only be used for a legitimate public use like a school or fire station. The Kelo decision confirmed a practice of abuse that has been happening all over California and the nation for decades. To understand how public use could become so distorted, we need to look back in time to the federal urban renewal programs that began after World War II. to improve housing in urban slums that had been abandoned by absentee landlords. These programs expanded to focus on modernizing decaying downtown areas and developing municipal facilities. In 1952 California law gave cities the power to create a separate government agency know as a Redevelopment Agency (RDA) to revitalize urban areas. Nearly 400 cities in California now have RDAs and all are legally empowered to use eminent domain. States all over the nation created RDAs and it didn’t take long for good intentions to go awry as developers and large corporations realized vast opportunities to make private profit.
This led to one of the most notorious eminent abuse cases in the nation, the destruction of the working class neighborhood of Poletown in Detroit, Michigan. More than 1,000 homes, 600 businesses, and many churches were seized by redevelopment eminent domain to build a General Motors Plant. In Washington, D.C. another notorious abuse of eminent domain occurred. Entire neighborhoods of predominantly low-income African Americans were displaced for upscale privately owned developments.
In 1999 the City of New London, Connecticut moved to seize 90 acres in the working class neighborhood of Fort Trumbull by eminent domain for a luxury waterfront development of offices, condominiums and a four-star hotel with river views. Nearly 80 mostly elderly property owners gave up their homes, but the remaining seven put up signs “This house not for sale” and fought eminent domain seizures all the way to the Supreme Court. School teacher Suzette Kelo had turned a rundown pink Victorian into her dream home and she is the “Kelo” in the Supreme Court case of Kelo vs. New London.
Although there are no accurate records, the Castle Coalition at the Institute on Justice is compiling a growing nationwide list that documents over 10,000 property seizures for private uses in just the past five years. See their website at www.castle coalition.org The Institute on Justice represented Suzette Kelo and her neighbors in the Supreme Court case.
Can my home or business in California be taken by eminent domain?
Yes. What happened to Suzette Kelo can happen in California. In California property must be declared “blighted” in order for a redevelopment agency to use the power of eminent domain. Section 33030-33039 of the California Health and Safety Code defines conditions that determine redevelopment “blight.” These conditions include small parcel size, multiple ownership of properties, incompatible uses with adjacent or nearby properties, and economic under-utilization. All properties within a redevelopment project area, including new and well-maintained buildings, are blighted by legal definition. In some instances new housing tracts, vital local businesses, and even open space have been declared blighted because they were deemed economically underutilized. What wouldn’t be underutilized compared to a high-rise development?
“Public use” can be almost anything the Redevelopment Directors decide to do. City governments can become the purchasing agent for a large parcel land grab for big business. If a property owner disputes the determination of blight or the so-called “fair market price” offered by the Redevelopment Agency, they must fight a court battle with the city. Less than 1% of eminent domain cases are successfully fought in California courts.
Is it true that cities rarely use eminent domain powers?
The mere threat of eminent domain is like a brandished gun, you don’t have to fire it to coerce. Most abuse of eminent domain power is coercion – people give up and take whatever the city will offer rather than risk a costly court case they can’t afford and are unlikely to win. When cities claim “we’ve only used eminent domain in rare cases,” what they often mean is the threat was enough and they didn’t have to complete a property seizure through the courts. Ask them how many times they have begun the process by threatening the powers of eminent domain.
Isn’t it true that the community decides if they want redevelopment and the powers of eminent domain?
The public never gets to vote on whether a redevelopment project area is formed, expanded, or whether eminent domain is used. In California it usually takes about a year of public meetings before an RDA can be established. Public input is “advisory only,” and it’s common practice for City Council members to appoint themselves to serve in the dual role of Redevelopment Directors. If the public wants to challenge this process, they must do so through the difficult referendum or initiative process to put it on the ballot.
Powerful land developers lobbied in Sacramento to create our redevelopment laws. They use their political and financial clout, including campaign contributions, to oppose reforms. Our redevelopment laws would shock anyone with the time and patience to read through over 800 pages of the Health and Safety Code. You would discover a shocking lack of conflict of interest protections and required public notice. For instance, RDAs do not even have to mail notices to people within a project area if they decide it’s too expensive. Redevelopment Directors can take financial contributions from developers whose projects they review.
Don’t we need eminent domain powers for urban revitalization, new housing and new jobs?
Since the founding of this country, free enterprise has successfully provided economic development through negotiations in the marketplace between willing buyer and willing seller. New jobs and housing are created without the misuse of eminent domain powers. The history of eminent domain abuse in this country has left a trail of failures. Redevelopment in many urban areas, like San Francisco’s Fillmore District, displaced the traditional ethnic community and left urban cores a bulldozed wastelands for decades.
Small locally-owned businesses, which provide the vast majority of jobs, are the main target of eminent domain. They are often displaced by national and international corporate chains that drain profits from the local economy and often do not provide living wages and benefits. Both the homes and livelihoods of Californians equally deserve our protection.
In the California legislature there have been attempts to “divide and conquer” opponents to eminent domain abuse by protecting only single-family, owner-occupied homes. These homeowners are protected, while renters, those who provide rental housing and local businesses are sacrificed.
The Kelo Supreme Court decision shakes us to the very core of our faith in an economic system and government that rewards hard work and playing by the rules. In her scathing dissent, Supreme Court Justice Sandra Day O’Connors says: The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. Revitalization can have a pretty hollow ring in a country that sacrifices the homes and livelihoods of the weak for the benefit of the powerful and well connected. If Suzette Kelo’s house is not safe from this arbitrary seizure for corporate profit, no home , business, or place of worship is safe.
Should this be happening in a democratic society?
Government sanctioned displacement and economic exploitation do not belong in a democratic society. A democracy is based on equal protection under the law, not sacrificing the rights of one group to benefit another group. Public uses such as roads and schools benefit everyone and cannot be compared to some abstract concept of a greater good through increased tax revenue or economic development provided by luxury hotels and condominiums, or corporate office towers that provide profit and benefits to a particular sector of society. Without the freedom to acquire, possess, and defend property, all other guaranteed rights are meaningless. Thomas Jefferson wrote that the true foundation of government “is the equal right of every citizen in his person and property.” Supreme Court Chief Justice John Marshall wrote “the right of acquiring and possessing property and having it protected is one of the natural, inherent and inalienable rights of man.”