Eminent Domain Issue Hits Home, Literally

The 5th Amendment to the Constitution ends with "nor shall private property be taken for public use, without just compensation." The question for the Supreme Court was "what does 'public use' mean?" In the case of the condemnation of a working-class neighborhood in New London CT for the purpose of private economic development, the Supreme Court decided, 5-4, that 'public use' means any 'public purpose', like increased tax revenues for the city. A key restriction, however, is that any use of this power of 'eminent domain' must be part of a comprehensive plan for redevelopment of the area in question. (Supreme Court: Kelo v. New London)

Traditionally, the power of eminent domain has been used predominantly for such infrastructure projects as power lines and highways. The land owner who had this property before these power lines were installed claims he was first ’notified’ that his property was being taken when a construction crew tore down his fence, letting his horses run loose. (Photo by Ray Feliciano)

The decision, handed down on June 24th has created a populist political backlash from both the left and the right, with the left fearing the power of corporate interests, the right fearing the power of government, and urban dwellers fearing displacement by both.

Legislators have been quick to respond. A resolution in the House of Representatives condemning the decision passed 365-33. The House then amended an appropriations bill to prevent federal funds from being used in the next year for any project that uses eminent domain for private economic development. This passed on a somewhat bipartisan vote (231-189), with a substantial minority of Democrats voting with most of the Republicans. The Democratic leadership, however, disagreed; the Minority Leader, Nancy Pelosi, called the bill an attempt to nullify the Court’s action, saying “this is in violation of the respect of separation of powers in our Constitution.” Local congressmen Sweeney (R) and McNulty (D) both voted in favor of the restrictions. A bill to make that law permanent has 126 sponsors, mostly Republicans, but also several of the most liberal Democratic Representatives.

Alabama and Delaware have already passed laws to limit the impact of the Court's decision. In Connecticut, a similar bill was defeated on a straight party line vote, Democrats defeating Republicans. Bills are in the works in at least a dozen other states. Most states expect to deal with the issue in their next legislative sessions.

The decision was greeted with mixed feelings in some parts of Albany, as it supports the city's urban renewal program for Park South, a 9-block, 26-acre area south of Washington Park, with more than 1800 inhabitants - a plus for the city government. Many neighborhood residents, however, fear that they will be forced to sell their homes, and small business owners also fear being forced out. Although city officials say they want to avoid using their power of eminent domain, the city has the option to force the sale of homes and small businesses in order to create its desired mix of new offices, shops, apartments, single homes, and student housing. There were fears in the adjacent and much larger Pine Hills neighborhood that they might be similarly impacted by a revitalization plan for the “Education District”.

The issue, however, may be moot. The Pine Hills project is not an urban renewal program; the Common Council hasn't voted on it. So, as yet, it involves no eminent domain power. As for Park South, the city has chosen a developer from Boston, Winn Development, which has never invoked the power of eminent domain in any of its projects. Their assurances have led to a quieter wait-and-see attitude by some of the local leadership, who has had conflicting feelings; they want neighborhood improvements but fear being uprooted.

Andrew Harvey, president of the Park South Neighborhood Association, for example, describes the Supreme Court decision as “nuanced”, saying, “not all property owners are equal.” Although he shudders at the image of eminent domain forcing out a homeowner, Harvey says “in Park South, I look very differently at a homeowner from a real estate speculator or absentee owner or slumlord. Those people shouldn’t be able to hold hostage a reasonable development plan.” His view echoed that of the Albany Times-Union which editorialized in favor of defining public use as that which benefits the public as a whole, saying that it is only a problem if local officials are corrupted by bribes or political pressures to go along with powerful economic interests. The TU’s view is the common one among those who support the decision: “why should a few property owners have the power to block development that community officials and a vast majority of community residents want?” (On the TU’s facing op-ed page, however, conservative columnist George Will noted was of the opinion that the corporate "battalions" will always have more political power than "society's little platoons"; no overt bribery is required for the interests of the powerful to prevail.)

The way the Albany situation stands now, Winn Development must reach a final contract with the city's Local Development Corporation by August 17th. After that, their final proposal has to be approved by Albany's Common Council. If the Council doesn't approve a plan by September 2006, the urban renewal program for Park South will expire.

The Pine Hills program, as a private-public partnership, doesn’t require Common Council approval and began its first inventory-taking phase on August 1st.

Bill Peltz is a retired anthropologist, teacher, photographer, printer, and stock broker. His last job was Coordinator of the Capital District Labor-Religion Coalition and is former Chair of the Albany County Greens.