PLF on Eminent Domain

California Cities Want More Eminent Domain Power

by Timothy Sandefur

The Sacramento Bee's Dan Walters explains how California's legislators are already trying to repeal what few eminent domain reforms were passed recently, and make it easier for the government to take away your home or business and give it to wealthy private developers.

Legislative language being circulated in the Capitol would allow older redevelopment projects to be extended and would loosen the standards for declaring blight. This, in effect, would reopen the door to the kind of wheeling and dealing that had generated demands for reform in the first place.

This may be very arcane, unsexy policy stuff, but the financial consequences for state and local governments and private landowners and developers seeking redevelopment subsidies are immense, easily reaching into the tens of billions of dollars.

(Read the rest...)

A bit on necessity

While the question of public use gets most of the ink, there's another showing that governments must make before they take private property.  State actors seeking to use their eminent domain power must prove that the target property is "necessary" to effect the stated public use. 

Otherwise, of course, the government could find any valid public use and, in theory, condemn every parcel within their jurisdiction by claiming it's part of the project. 

That appears to be the thinking of Broward County, Florida.  Officials there sought to take property to build a drug treatment center.  Unfortunately, they decided to take considerably more property than anybody, including the city involved, thinks is necessary for the project.

Some of this extra property is owned by the Christian Romany Church.  PLF filed an amicus brief supporting the church, arguing broadly that government claims of necessity should be reviewed with the same strict scrutiny that courts use when assessing other issues of fundamental rights, and specifically that the County's actions can't survive that scrutiny.

The church lost at trial, and appealed the decision.  Oral argument was this week.  A PLF press release on the case is available here. 

Eminent Domain Victory in New Jersey

The Entrepreneurial Mind points to an excellent eminent domain success in New Jersey. Congratulations to our friends at the National Federation of Independent Business Legal Foundation.

Richard Epstein to Speak at Cato about New Property Rights Book

Prof. Richard Epstein will speak at the Cato Institute on March 6th at 12 Eastern, about his new book Supreme Neglect: How to Revive Constitutional Protection for Private Property. You can watch the even live online here.

California Eminent Domain Reform is Now Prop. 98

by Timothy Sandefur

The California eminent domain reform initiative, which would give strong protections to California's home and business owners against the violation of their property rights, has been given a number and is now Proposition 98. You can read more about it at this site.

A group of government bureaucrats, however, who oppose eminent domain reform and want to keep Kelo-style takings in place, have also certified an initiative for the ballot. It is Proposition 99. You can see by reading it that it would actually provide no realistic protection to property owners in the state. Instead, it would apply only to "owner-occupied residences," (which are rarely targeted for eminent domain anyway) and not to the owners of small businesses, farms, churches, and apartment buildings that are by far the most common victims of eminent domain. And, as I explained about an earlier version of the same bill, it would allow government to condemn even owner-occupied homes for the creation of shopping centers that included some minor public aspect such as a community center surrounded by private shops.

Second Circuit Upholds Condemnation for Sports Stadium

by Timothy Sandefur

In what I believe is only the second federal appeals court decision to apply the Kelo case, the Second Circuit has upheld the condemnation of private property in the Atlantic Yards case in New York. This is not very surprising—it's very hard to distinguish this case from Kelo, and after that decision, federal courts are almost nonresponsive when it comes to public use.