Looking To The States To Ride Herd On Kelo

Editor: Please tell our readers about your background.

Witmer: I am a partner at Saul Ewing in both the real estate and litigation departments. My practice centers on zoning and land use matters and litigation relating to real estate, including eminent domain and takings.

I have been with Saul Ewing for nearly 10 years now, having practiced for fifteen years. I started at another firm as a litigator but when I joined Saul Ewing, I joined the real estate department where I learned zoning and land use, incorporating my litigation skills with this practice.

Editor: What is the government right of eminent domain?

Witmer: T he government as the sovereign power may take land for public use, a power that has always resided in the state. In Britain prior to the American Revolution, the king could always take land to use for his own personal pleasure or for the greater use of the public. When our country was formed, it was recognized that from time to time there would be an overriding public need for land. The Constitution provides in the 5th Amendment that land can be taken by the government for public use with just compensation.

Early on, case law evolved allowing the taking of land not just for the use of the general public, but that arguably had a benefit to the public at large, and thus had a public purpose. As the country became more industrialized, cases in the West dealt with the need to run electric lines, railroad tracks and mining equipment across land that would be for the use of one or two companies.

Kelo v. City of New London, is consistent with the evolving history of eminent domain in this country. But the decision is shocking to the average citizen because in this case it was so clear that the land was being taken from one private citizen to be given to another private citizen who would benefit economically. People are used to land being taken to widen roadways or to provide public utilities but the idea that land could be taken because the beneficiary is allowed to enjoy an economic benefit is jarring to people. It is something that people react to viscerally - because as Americans we all believe that if we own our land, we should be able to use it in perpetuity as long as we are not offensive to our neighbors. The thought that the government can put someone in our place because there will be more tax revenue is something that we automatically reject at a very basic level.

Editor: Could you go into some of the facts of the Kelo case?

Witmer: The last big case involving eminent domain was the United States Supreme Court case, Berman v. Parker, involving Washington, DC housing in 1954. In that case it was clear that the area that the government was seeking to acquire to redevelop was blighted. In that opinion the court talked about the burden on the people who lived there who lacked indoor plumbing or utilities. However, in order to redevelop that area, the government needed to acquire the dilapidated housing units and also a department store that was not blighted. The store owner with a thriving business claimed that the store could not be taken because the removal of his store would not remove blight from the area. The United States Supreme Court, nonetheless, allowed the taking of the department store, finding that the government had determined that that land was necessary for the redevelopment scheme.

Kelo is a further extension of that thought. What happened in Kelo is that there was never any argument that the City of New London was blighted, but the government viewed the area as economically depressed. Connecticut has a statute that allows the assemblage of parcels for takeover by the government for redevelopment if there was a plan for economic revival in any given area. There is no doubt that there were some decrepit homes in the area but there were also areas where people took pride in their properties and maintained them. The thing that was different from Berman was that the property in the area was not a burden upon the residents and the public at large, it was not a danger, but was a nice enough area although somewhat depressed. In Kelo, the idea that an improved economic development is a public use had been expanded beyond Berman.

As background for the Kelo case, some people were willing to sell their land and get what benefit they could while others were not willing to do so. The plan itself was at issue because it was not clear what would happen to all the properties, including Mrs. Kelo's, which was in an area designated for public parking or some other uses. Mrs. Kelo was deeply offended because the government was taking her land and could not tell her the exact reason for it.

Editor: What was the ultimate purpose for these takings?

Witmer: In Kelo developers were redeveloping the entire waterfront area as a marina with shops, offices, residences and a hotel - a mixed use development. In the Berman case the entire area was redeveloped with housing around the idea that you would build housing towers for low income people. The ironic thing about Berman is that the land was used for a housing project that was ultimately taken down because it was a bad idea - it was a failed form of urban redevelopment.

Editor: Tell us about the repercussions of the Kelo decision.

Witmer: It has been interesting because these urban redevelopment cases have been occurring throughout the country, and there have been pockets of resistance. For example, there was a case in Michigan called Poletown Neighborhood Council v. Detroit where an entire area was taken for a GM plant. People were irritated because their land was being taken for a factory. There had been pressure building for the Supreme Court to take one of these cases and examine whether pure economic redevelopment met the constitutional test. The Court determined in Kelo that it does. The repercussions from that decision are being seen all over the country. There are now forty states, I believe, which are considering legislation that would limit the governmental authority to seize property solely for economic development. Remember that the Constitution presents the outside limit on the power of eminent domain so the states can limit themselves in terms of what they can take and the purposes for any taking.

In Pennsylvania, where I practice, bills have been passed by both the House and Senate. I expect to see legislation that will limit the power of eminent domain, particularly when the taking is for the benefit of another private party. Pennsylvania has taken the lead among Mid-Atlantic states, having gone the furthest in the legislative process so far, to my knowledge.

Editor: Do you expect any challenges to the Pennsylvania statute?

Witmer: We will have to see what the final statute will say. Much depends on how restrictive the final language is.

Further litigation may come from the area of just compensation. Every state has its own system for determining the procedure to be followed in assessing what just compensation is for the landowner. In Florida the landowner is able to get attorneys' fees refunded. In Pennsylvania landowners get about $500 which is not enough for landowners to mount an effective case if they are really challenging the determination of just compensation by the government. Where you will see the challenges is whether the just compensation procedures provide due process. That question was raised during oral argument in Kelo . The justices talked about the owner's ability to get just compensation for the property, especially when the new landowner who receives the land will make a substantial profit, in which the original landowner will not share. It would not surprise me if there are challenges brought to the Supreme Court, tailored to the question of just compensation.

Editor: What should homeowners know about the decision and where can they find information on their rights?

Witmer: That will vary from state to state. People should become aware of the government action that is proposed in their local area. For most people the Kelo opinion will not have much impact on their day-to-day lives but for people who live in areas where the government has determined that the land could be better developed, they should stay alert. There were extensive hearings in Connecticut before the takings occurred and the homeowners eventually participated in them. The most effective way to prevent a taking is to apply political pressure early and demonstrate why it is a bad idea. That is something that any homeowner can do.

Editor: Where do you see this going as a principle of law?

Witmer: In many states eminent domain power has statutorily been handed over to non-elected groups or individuals, such as development authorities and commissions, whose job is to look for land to redevelop. Citizens in various jurisdictions need to keep an eye on what those boards are doing, what political action is being undertaken. I think that the Kelo case will have a positive impact because there should be increased vigilance and public participation in the governmental decisions that lead to takings, and perhaps some restraint on the wholesale delegation of taking power to boards and commissions who are not elected. The eminent domain power should only be used when there is a dire need to take someone's land. The Supreme Court will not be making that decision, though, so the real action will be at the state and local level.

Editor: Would you tell our readers about a case you are handling?

Witmer: We have a case where we are representing a family who owns a beautiful farm in Pennsylvania. Portions of the farm were taken, supposedly for a public park purpose. When you look at the pieces that were taken, they do not make sense for a park, they are disjointed. Some of them are as much as a half mile away from each other. The public statements made by the board indicate that the county took the land because they believed that they could run it better than the owner and because they simply wanted to stop development which was otherwise permitted. We do not believe that is a valid public use for the taking of the land. Our clients are fighting hard to maintain their livelihood. Their land is being taken so that other people can run their farm. That is not right - it is eminent domain abuse, and a pretext for taking our clients' land.

Editor: What about the possibility of abuse?

Witmer: Justice Sandra Day O'Connor was concerned with that possibility. In her dissent in the Kelo case she questioned the possibility of a city taking a hotel, a "Motel 6" and giving it to the Ritz Carlton. The crux of her fear was that government can make a decision that one owner is better than another. There is a great deal of possibility for abuse in these takings. However, I think that the majority decision in Kelo determined that the Court will not police eminent domain abuses. The states need to restrict the eminent domain power in order to regulate abuses.

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