WASHINGTON—The U.S. Supreme Court declined to hear Bowers Development, LLC v. Oneida County Industrial Development Agency (OCIDA), a case challenging the infamous 2005 eminent domain decision Kelo v. New London. The property owners contesting the use of eminent domain in Utica, New York, were represented by the Institute for Justice (IJ), which also represented the Kelo homeowners.
“The Court declined this opportunity to restore some basic protections for American property rights, but it will have to confront this question eventually,” said IJ Deputy Litigation Director Robert McNamara. “Eminent domain abuse continues to run rampant in New York and some other states that have refused to change their laws, and it will not stop until federal courts return to enforcing the Constitution.”
While Kelo continues to enable abusive eminent domain, its effects have been limited by the nationwide campaign following the decision that led 47 states to amend their constitutions or pass laws preventing eminent domain from being used for private development.
“We’re deeply disappointed that the Supreme Court will not hear our case,” said Bryan Bowers. “New York property owners live with the constant fear that their homes and businesses can be seized and handed over to more politically connected owners. What happened to us can happen to anyone.”
Utica recently built a new, centrally located hospital. Across the street, the CNY Cardiology group put up a new building for itself and to rent offices. Bryan Bowers and his business partner, Mike Licata, heard that other doctors wanted an alternative to the cardiology building’s high rental rates. So, Bowers Development, LLC purchased 411 Columbia Street, right next door.
The cardiologists were not pleased to have competition cutting into their profits. They asked the Oneida County Industrial Development Agency (OCIDA) to use eminent domain to seize Bowers’ property so that they could use it for a parking lot. OCIDA obliged, claiming that the parking lot would create “improved job opportunities” even though there are multiple surface parking lots and a parking garage within easy walking distance.
The power of eminent domain is found in the Fifth Amendment of the U.S. Constitution, which requires that property can only be taken for “public use” and with “just compensation.” Historically, this power was intended to allow the government to acquire land for essential public projects such as roads, public buildings, and infrastructure. However, in Kelo, the 5-4 majority held that creating jobs and increasing tax revenue was a “public use.” The dissent countered that this broad definition of public use made the power of eminent domain practically unlimited. Writing for four justices, Justice Sandra O’Connor explained that “the government now has license to transfer property from those with fewer resources to those with more.”
The planned development of the Fort Trumbull neighborhood that led to the Kelo case ultimately fell through, as did other plans over the past two decades. Today, the neighborhood where Susette Kelo’s little pink house once stood remains mostly vacant, with a pricy community center under construction (which will pay no taxes, the original justification for the takings) and the city offering millions of dollars in tax incentives in the hopes of finally luring a private developer to the peninsula.
“In the 20 years since Kelo, everyone from the person-on-the-street to legislators to highly respected judges have said it was wrong the day it was decided,” said IJ President and General Counsel Scott Bullock, who argued Kelo at the Supreme Court. “It is high time for the Supreme Court itself to join that chorus, remove this blot on its jurisprudence, and restore constitutional guardrails to the use of eminent domain.”
IJ will continue to fight eminent domain abuse. Currently, IJ is defending small business owners in Missouri from blight designations that would allow their city to take property and give it to private developers. In Mississippi, IJ is defending homeowners from blight designations done in secret and that cannot be challenged under state law. And in Georgia, IJ is trying to stop a private railroad from taking homes that have been in some families for generations.