Threat in a condo court ruling

By Paul Guppy

A little over two years ago, the Supreme Court handed down one of the most far-reaching decisions in a generation. In June 2005, five of the nine justices ruled in Kelo v. City of New London that an elderly citizen, Suzzette Kelo, had to sell her home of 55 years to the city, which in turn handed it over to a private developer to build shopping malls and upscale condominiums. New London officials said taking the home by force was justified because they would receive higher tax revenues, and the community would benefit from expected new jobs and economic development. Whether Suzzette Kelo would benefit was not considered.

Kelo represents an important change in constitutional law. Previously, the Fifth Amendment's limit on government power, "...nor shall private property be taken for public use without just compensation," was understood to mean people's land could only be taken for something that would be used by the public: a park, a road, a library, a school. With Kelo, the Court changed "public use" to mean "public purpose." Now municipal officials can use Kelo to stretch any vaguely public goal, like boosting taxes, creating jobs or ending so-called blight, into a reason for taking land away from private citizens.

Older people are particularly at risk, because their homes have often increased greatly in value over time, and are therefore prime targets for the redevelopment schemes of tax-hungry mayors and town councils.

Local officials in Washington are making creative use of Kelo and existing economic development laws to leverage new projects, boost tax revenue and increase their own power. Even homes in middle-class neighborhoods have been declared "blighted" and subjected to eminent domain takings. In Renton, Mayor Kathy Koelker said she envisioned "the next generation's new single-family housing," and attempted to take away the homes of working class families. Public outcry ended the scheme, for now.

Another tactic is to devote a few square feet of a person's property to public use, like an off ramp or a bus stop, which is enough for local planners to seize the whole parcel. In Burien, the city council greedily eyed a popular family restaurant owned by the Strobel sisters for an ambitious Town Square development of luxury condos, high-end shops and private offices. To get the land, city planners were instructed to "make damn sure" a new access road ran through the Strobel's building. The courts backed the city, and the sisters lost their business.

The bottom line: Kelo lets municipal officials become real estate speculators, with little or no risk to themselves.

We are naturally upset when we hear about someone losing a home or business, but the threat posed by Kelo goes much deeper than that. Private property is the ultimate civil right, because it is the only thing that gives people the resources to defend all their other rights. In the days of the Soviet Union, the first thing communist leaders did was eliminate the right to property ownership. That made it easier to impose the rest of their program. The United States is a long way from becoming a dictatorship, but the principle remains consistent. Each time the civil right to own property is weakened, citizens lose a little bit of their ability to resist pressure from local governments.

There is a joke that people are sharply divided over the Kelo decision - 80 percent don't like it, and 20 percent hate it. That is only a slight exaggeration; polls show that up to 90 percent of Americans disagree with government seizing land and giving it to private developers, and public opposition is as strong today as it was two years ago.

As happened in the years following the Dred Scott and Roe v. Wade decisions, the five justices in the majority are shocked the public has not quietly accepted their final word on a fundamental civil right. Americans may not know much about the obscure intricacies of Supreme Court proceedings, but we do know when our basic rights are being eroded. Somehow, the peremptory phrase printed at the end of the majority's Kelo ruling, "It is so ordered," just isn't convincing in this case.

Kelo does allow state legislatures to curb the eminent domain power of local officials, and bills will be introduced in the next session in Olympia to do just that. Until then, your home is your castle, unless local officials decide they need it to fulfill their grand vision for economic development.

Paul Guppy is the vice president of research at Washington Policy Center, a non-profit, non-partisan research and education organization and can be contacted at www.washingtonpolicy.org or by calling 937-9691.