In cases where the power of eminent domain is used to take private property for economic development, should cities and towns adhere to some type of minimum standard to determine public benefit? That issue seemed to be at the heart of questions posed by Justices of the Supreme Court of the United States last week when they heard arguments in case of Kelo v. City of New London.
While generally voicing support for the use of eminent domain to bolster depressed economic neighborhoods, several of the Justices probed the standards that are used. "Virtually every taking has a public benefit," said Justice David H. Souter. "Why must there be a limit?"
The Kelo case was brought by several property owners who are challenging the use of eminent domain by the city of New London, Conn., to take their property as part of a proposed 90-acre redevelopment area.
For more than 15 years, New London has suffered the loss of more than 1,500 jobs as major industries closed. After years of planning, public hearings and outreach, city officials approved the construction of a waterfront development project near historic Fort Trumbull. The four-phase plan will include retail, residential and commercial space, a waterfront hotel and conference center, marinas and other public amenities. The project is expected to bring up to 2,300 jobs to unemployed New London residents and as much as $1.2 million in tax revenue for improved city services.
The National League of Cities filed a "friend of the court" brief in support of New London, recognizing that any change to the current use of eminent domain could have serious implications for cities, towns and states working to improve economic development and revitalize aging neighborhoods.
Justice Sandra Day O'Connor, acting as presiding judge due to the illness of Chief Justice William H. Rehnquist, asked, "In a city that is suffering from an enormous lack of jobs ... is there not a public use benefit?" When O'Connor asked Scott G. Bullock, lead counsel for the plaintiffs, Susette Kelp and other homeowners, what test he would apply in eminent domain cases, Bullock said, "The test should be that the government shouldn't take private property to give over to another private landowner."
Wesley W. Horton, counsel for the City of New London, refuted this suggestion. "Purely taking from one person to give to another person is not a public use," he said, citing a New Jersey court decision that rejected an effort by developer Donald Trump to use the power to build a parking lot. "But this development is a part of a long-range plan by the city," Horton said, "to be developed in phases with due public processes." …