• "Kelo" Backlash Ripples Through Civics of U.S.
  • February 27, 2006 | Author: Michael Berger
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • Just when you thought it might be slowing down. Just when you thought that the near-universal concern about the way that government agencies use the eminent domain power (launched into orbit by the U.S. Supreme Court's decision last spring in Kelo v. City of New London, 125 S. Ct. 2655 [2005]) may have been chased from the public consciousness by such things as developments in the Middle East or the impending Enron trial, there it was again. In the Los Angeles Times. On the front page. Above the fold: "Land Seized for Animal Shelter May Be Sold to Developer-Donor. "(Los Angeles Times, Jan. 14, 2006, p. A1.)

    True, this is a different set of facts than those underlying Kelo. Where Kelo dealt with the condemnation of sound, middle-class housing to make way for the kind of development that could potentially produce jobs and higher tax revenue for the city as a whole, this one dealt with a change in plans. The City of Los Angeles initially condemned a parcel of industrial land for a new animal shelter, with the city council solemnly adopting a resolution that this particular property was necessary for that specific purpose.

    At the time, the owner was a most unwilling seller. The property was occupied by a company that was doing well and wanted to continue expanding its business. Invoking the power of eminent domain, however, the city compelled the sale.

    Since then, the city has apparently changed its mind. It has decided to put the animal shelter somewhere else and sell the land to a private company for private development. To do that, the city will have to declare that it no longer needs this land (for which it paid $5.8 million) for any public use.

    Whether that action is legal or not is largely irrelevant. Whether it is in the city's overall best interest is likewise irrelevant, as is the question of the morality or propriety of its actions. The one clear thing that this shift in plans will accomplish (aside from a delay in constructing the new animal shelter at probably increased cost on a different site) is to add fuel to the anti-Kelo fire. And that is something that is frankly not in the city's interest.

    The mood around the country remains hostile to Kelo. Although the adverse reaction was certainly not expected by the Supreme Court, it came fast and furious. In fact, it took no time at all. One day after Kelo was filed, for example, the U.S. House of Representatives adopted House Resolution 340 (June 24, 2005) "[e]xpressing the grave disapproval of the House of Representatives regarding the majority opinion of the Supreme Court in the case of Kelo et al. v. City of New London et al. . . ." The vote was 365 to 33.

    Although the House Resolution was not binding law, Congress did not rest. Five months later, the President signed into law P.L. 109-115 (Nov. 30, 2005), which had been adopted by a similar overwhelming vote. That was a 2006 appropriations law governing funds for agencies like the U.S. Departments of Transportation and Housing & Urban Development. It prohibits the use of any federal funds in projects involving the power of eminent domain where the project includes "economic development that primarily benefits private entities."

    And Congress isn't through. P.L. 109-115 is merely a one-year appropriations law. Legislation now working its way through the process would make the law substantive and longer-lasting. H.R. 4128 has already passed the House and is being considered in the Senate. If enacted, it would bar state and local governments from using eminent domain to support economic development projects. The link is the receipt of federal funds, but the prohibition is not tied to any specific year's appropriation. The penalty for violation is a denial of federal funds for the next two years. Presumably that two-year period would continue to roll forward if there were additional violations.

    Congress, of course, is not alone. Legislation has been introduced in most states -- including California -- that would radically restrict the use of eminent domain. Constitutional amendments are also being considered, and initiative petitions (since Californians like to govern this state in the manner of a New England town meeting) are being circulated. From the governmental standpoint, the worst-case scenario of all this pending legislation would be the end of urban redevelopment programs as we know them. Those programs depend on title being acquired by public entities and then transferred to private developers who will build the projects. Virtually all proposed legislation would forbid that.

    Although some cheer the prospect of no more forced redevelopment projects, there are many who believe that much necessary land clearance and reconstruction will not occur if market forces alone are left in control. Whoever is right, the result will surely be dramatic.

    At the heart of all this is a distrust of government. In Kelo, people saw the city abusing its power by pushing around some little people who owned modest, inoffensive homes just so that a more powerful commercial enterprise could be established in their waterfront neighborhood. People rallied to Justice Sandra Day O'Connor's alarum that "The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." Great bumper sticker.

    "Property rights," long believed to be merely a right wing rallying cry, obviously is a concept that is buried quite deeply within the human psyche. The Congressional response noted above was sponsored by the likes of Tom DeLay and Maxine Waters, uniting the disparate ends of the political spectrum -- probably the first time those two have agreed on anything. (It isn't even limited to Americans. Another recent newspaper headline announced that "Chinese Premier Says Seizing Peasants' Land Provokes Unrest," The New York Times, Jan. 21, 2006.) The "my home is my castle" genie has been unleashed and it seems in no mood to be restrained any time soon.

    Government agencies at all levels ought to hunker down a bit. Some municipalities -- in an effort to deflect constituent anger -- have gone so far as to formally resolve that they will not use the power of eminent domain in order to simply turn property over to private parties for some different type of development. There seems, however, no need to adopt such an extreme "deer in the headlights" pose. (Any effort by existing city councils to bar future city councils from exercising their powers is of questionable legality in any event.)

    More pertinent is to focus on the Kelo rationale. The Kelo majority stressed the importance of good, professional city planning in determining how and when (and even whether) to invoke the power of eminent domain. It is certainly not a cure-all, but government agencies are well-advised to carefully root their actions in the planning process, and to allow the impetus for eminent domain to come from the planners, rather than outside influences. That may help to allay the public concerns that government invokes this awesome power simply because it can, not because it really needs to.

    And as for that animal shelter, sometimes it's best to let sleeping dogs lie.