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One Year After Kelo Argument National Property Rights Revolt Still Going Strong

43 State Legislatures Work Toward Eminent Domain Reform

Arlington, Va—The little pink house in New London, Conn., that started a nationwide property rights revolt still stands one year after the U.S. Supreme Court heard arguments and then eventually ruled that it could be torn town for private development.

But the future of that home—and of every home, small business, church and farm—remains in question. Will state and local legislatures change their laws to protect private property from eminent domain abuse (where the government’s power of eminent domain is used for private gain in the guise of creating more jobs or increasing taxes), or will lobbyists representing developers and cities block meaningful reform?

On February 22, 2005, the U.S. Supreme Court heard the now-infamous case of Kelo v. City of New London, in which it ruled that the government may take private property from one person only to hand it over to another in the name of “economic development.”

As O’Connor Predicted: Rich & Connected Push Out Poor & Middle Class

In her dissent, Associate Justice Sandra Day O’Connor recognized the inevitable abuse that would follow. She wrote, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” As Justice O’Connor predicted, eminent domain projects for private gain involving thousands of homes and small businesses of the poor and middle class continue to play out nationwide. Among them:

· Senior citizens Carl and Joy Gamble from Norwood, Ohio, stand to lose their home of more than 35 years so developer Jeffrey Anderson can expand his $500,000,000 empire with a new mall.

· More than 20 homeowners in Long Branch, N.J., many of whom have owned their oceanfront homes for generations, may be kicked off of their land for the construction of expensive condominiums.

· In Riviera Beach, Fla., a poor, predominantly black community (and one of the last affordable waterfront neighborhoods in Florida), is threatened by a massive redevelopment plan that may condemn up to 2,000 homes and businesses in favor of more expensive homes, upscale retail, and a yacht club, boat marina and other luxury amenities.

Even Justice Stevens Supports Legislative Limits On Eminent Domain

Since Kelo, 43 state legislatures have passed or will soon consider eminent domain reform in their legislative sessions. Alabama and Texas both enacted laws aimed at preventing exactly what Kelo allowed. Ohio established a one-year eminent domain moratorium as it studies the issue. Michigan, whose own state Supreme Court rejected Kelo-style takings in 2004, referred a measure to its voters to codify the case law and require blight removal projects to proceed by parcel, which will prevent nice homes from being acquired with the bad ones. And the U.S. Congress is poised to restrict federal economic funds from being used by eminent domain abusers.

“What’s been passed so far are good first steps, but they are only first steps and much more needs to be done if small property owners are to be protected,” said Dana Berliner, a senior attorney with the Institute for Justice, which defended the homes of New London, Conn., resident Susette Kelo and her neighbors. “Nearly every state needs not only to restrict the use of eminent domain for private commercial development, but also to reform their blight laws to stop bogus blight declarations. Unless both of those reforms are done, and done in the right way, this abuse will continue.”

“The public should be warned that lobbyists from the National League of Cities, planning associations and developers are out in force and are working overtime to preserve their power,” said Scott Bullock, an IJ senior attorney. “They’ll stop at nothing to make sure even the most sensible reforms will fail.”

Even Associate Justice John Paul Stevens, who wrote the majority opinion in Kelo, made clear that states were free to impose greater limits on condemnation. Justice Stevens said mere months after the decision that he believes eminent domain for economic development is bad policy and hopes that the country would find a political solution. He said, “I would have opposed it if I were a legislator . . . . My own view is that the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials.”

Historic Coalition Aligned Against Abuse

An historic coalition that cuts across the philosophical spectrum has united in calling to reform the nation’s eminent domain laws. Along with the Institute for Justice, the NAACP, League of United Latin American Citizens (LULAC), the Farm Bureau, National Federation of Independent Business, the Mexican American Legal Defense and Education Fund, the National Council of Churches as well as other non-traditionally aligned groups have joined in the legal and legislative fight against eminent domain abuse.

“This unprecedented coalition makes it clear that, when it comes to eminent domain abuse, it is the people versus the profiteers,” said Chip Mellor, IJ’s president and general counsel.

In addition, the Castle Coalition (a nationwide grassroots network of citizens determined to stop the abuse of eminent domain in their communities) launched the most comprehensive website on the issue. CastleCoalition.org provides information and assistance to journalists, legislators, homeowners, students and scholars. CastleCoalition.org features an interactive map (powered by Google Maps) tracking condemnations for private development nationwide, an up-to-date catalog of eminent domain reform legislation at all levels of government, as well as an “Eminent Domain Survival Guide” to help homeowners successfully fight illegitimate land-grabs.

“The CastleCoalition.org website is ‘information central’ on the issue of eminent domain abuse and reform,” said Steven Anderson, Castle Coalition coordinator. “Homeowners need as much information and guidance as possible if they are going to win these very difficult fights. CastleCoalition.org gets them the information they need.”

Pink House Still Stands

One year after the Kelo argument, Susette Kelo and her neighbors remain in their homes.

Shortly after the Kelo decision was handed down, the legislature and Conn. Governor M. Jodi Rell asked for a moratorium on all takings for economic development, including those in New London, while the legislature looked at changing the law. At first, the New London Development Corporation (NLDC), the private body granted eminent domain authority by the City, agreed to abide by this, and then changed its mind and started sending out eviction notices to some of the owners. This caused a firestorm of controversy in New London and throughout the state. Governor Rell ordered the NLDC to rescind the notices, which it reluctantly agreed to do. Shortly thereafter, the long-time head of the NLDC and antagonist of the property owners, David Goebel, resigned. The governor has said she supports keeping the homes in Fort Trumbull if possible and has appointed a mediator (independent of the NLDC) to look at all of the options. This month, the City Council unanimously voted to find a way to save many of the homes in Fort Trumbull.

“I do not plan on moving out of my house,” said Kelo. “It is my dream home, and I will do everything in my power to make sure it stays where it is.”

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