EDITORIAL: Taking back property rights

Kelo decision needs to be plowed under

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Congress is taking steps to reverse a Supreme Court decision that turned a thriving middle-class community into a waterfront wasteland. It’s about time Kelo was knocked off-kilter.

On Tuesday, the House passed a bill aimed at mitigating the impact of the controversial 2005 Supreme Court ruling in Kelo v. City of New London. The bipartisan measure was co-sponsored by political polar opposites Rep. F. James Sensenbrenner Jr., Wisconsin Republican, and Rep. Maxine Waters, California Democrat. It would withhold federal development aid to states or municipalities that seize private property solely for economic-development programs. It would bar federal takings for the same purpose and give property owners under threat of such takings the right to sue in federal court. This follows a 2006 executive order that restricted land grabs “for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.”

In Kelo, the high court sided 5-4 with New London, Conn., on the question of whether the city could use the eminent-domain power to seize 91 acres of privately owned waterfront property to hand over to a private developer. The takings clause of the Fifth Amendment states that private property shall not “be taken for public use, without just compensation.” The city argued that this taking would lead to 3,169 new jobs and $1.2 million a year in tax revenues and thus fell under constitutionally approved “public use.” The Kelo case differed from other sequestration cases in that the property to be condemned, a neighborhood called Fort Trumbull, was a well-maintained middle-class community rather than a depressed slum. The “public use” was not a highway or a bridge but a redevelopment scheme the city government had decided would spruce up the town. The court determined that the mere assertion that the acquisition would benefit the city was good enough to pass muster. Fort Trumbull’s residents were bought out, and the neighborhood was leveled.

Property is a pre-eminent American civil right. It should be violated only when a clear and compelling public interest is involved. It should never be cast aside based on unsupported notions that a given piece of property might be better used in some other way, particularly when the government is acting as the agent for a real estate developer. As Justice Clarence Thomas noted in his dissent, the impact of the decision “will fall disproportionately on poor communities [that are] the least politically powerful.” Kelo essentially legalized gambling with municipal money and the lives of homeowners. There is no better illustration of the court’s flawed logic than the fate of Fort Trumbull. The promised benefits never materialized. The developer was unable to finance the promised new construction, and the area was left an overgrown waste. In the summer of 2011, following Hurricane Irene, the city designated it as a dump.

The House bill is a useful measure to mitigate the impact of Kelo. If the Senate follows suit and President Obama signs the bill into law, it would dissuade states and municipalities from attempting to plow under more neighborhoods and disrupt more lives. Dispossession should never be justified based on the promises of self-interested real estate speculators. This bill would give property owners a fighting chance while waiting for the Supreme Court to come to its senses.

The Washington Times

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