Kelo Backlash Could Lead to Restoration of Property Rights

Kelo Backlash Could Lead to Restoration of Property Rights Lost to Smart Growth and Eminent Domain Abuses by Ronald D. Utt, Ph.D.

Supreme Court Justice Sandra Day O’Connor was right when she wrote in her dissent to Kelo vs. City of New London that now “the specter of condemnation hangs over all property.”[1] She was also quite correct to note that the decision undermines an important Constitutional protection that all Americans had taken for granted over the past two centuries.

When the 13 states voted to adopt the Constitution in 1791, they appended to the original document ten amendments guaranteeing certain basic rights to protect ordinary citizens from the depredations of an overreaching government. Among those rights was the Fifth Amendment protection of private property from unlawful seizure by government. Known as the “takings clause,” Americans’ property rights have been secured, until recently, by the phrase “nor shall private property be taken for public use without just compensation.”

Though this is viewed as one of the most important protections underpinning both our freedom and economic vitality, there was nothing particularly novel or innovative about the Founding Fathers’ including the takings clause in the Constitution. Property rights and protections had long been a foundation of English common law and were taken for granted as fundamental. Typical was the robust declaration of such rights made by William Pitt, Earl of Chatham, in a 1763 speech to the House of Lords in regard to the Excise Bill then before that body:

The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

But that was then and this is now. On June 23, 2005, Justice John Paul Stevens wrote for the majority of the U.S. Supreme Court that private property can be taken by government for the purpose of economic development. Where Kings of England were once forbidden, the threshold is now open for a mere director of economic development to come crashing through, evict the poorest man, seize his cottage, rip it down, and sell what’s left to corporations and wealthy home buyers.

Although many of the subsequent expressions of concern have rightfully focused on the broadened powers of eminent domain and the ease with which private property can now be seized by government, the decision’s collateral damage will extend in many directions. There is a chance that the decision will adversely influence the increasingly severe land use restrictions that many states and communities have been imposing on property owners over the past decade in the name of “smart growth.” This is unfortunate because voters in several communities have had some notable recent successes in thwarting and reversing these regulatory efforts to restrict property rights and limit development. The prospect for more gains was promising, as opportunities emerged to unify contending sides of the growth debate around a more liberal interpretation of property rights.[2]

Reflecting this trend, the Property and Environment Research Center in Bozeman, Montana, published an important report, “Whatever Happened to Smart Growth,” in June 2005. The report describes and discusses several of the notable legal and electoral setbacks that advocates of the more extreme and coercive forms of smart growth and new urbanism have recently suffered in several parts of the country where they had once reigned unchallenged. Authored by Jane Shaw and Ken Orski, the paper reviews the most recent legal developments in states and communities once viewed as paragons of smart growth virtue—Maryland and Oregon, and Loudoun County, Virginia—but where concerned citizens used the ballot box to overturn or substantially modify harsh restrictions on private property.

In each of these places, laws and directives that had been established to limit or discourage population growth and development were either altered or simply ignored in order to allow for more growth and building than would otherwise have taken place. As significant as these losses were to the growth control movement, the more moderate wings of the smart growth and new urbanist movements have suffered even worse recent defeats at the hands of zoning boards across the country as a consequence of the imposition of increasingly onerous land use regulations that often make it impossible, if not illegal, to build communities based upon smart growth concepts.

Advocates of smart growth and new urbanist practices encourage developments with higher population density (more people and houses per acre), less reliance on cars and more on walking and transit, and greater proximity of houses to jobs and shopping. But like any broad movement, there are important differences that divide smart growth advocates. At one end are more extreme elements that believe smart growth solutions should be imposed on people and the typical suburban development be prohibited. The moderate wing, however, believes that smart growth communities should be offered as a choice and should compete on an even playing field with traditional suburban developments.

Such differences in approach often spill over into land-use restrictions. While Oregon’s growth boundary forced development into increasingly crowded urban areas, Maryland’s vague policies achieved little measurable change. Loudoun County’s plan actually encouraged sprawl by establishing minimum lot sizes of 5, 10, and 25 acres depending upon the plot’s location in the county. Thanks to Loudoun’s harsh regulations, suburban development in Washington, D.C., has since leapfrogged into West Virginia.

In a rational world, counties in West Virginia would not be suburbanizing—they are simply too far away from employment centers. Yet they are growing rapidly as middle-income households are forced to seek affordable housing farther away from the regional core because of land-use restrictions in closer in communities. Workers in these distant communities confront 4-hour daily commutes, which add to transportation expenses.

Referred to as “downzoning,” Loudoun’s approach to growth control substantially reduced density and, with it, the number of potential residents. But since such growth controls do nothing to deter overall population growth and, thus, the demand for new housing, these restrictive regulations mean that more raw land must be used to house a given population. If a community’s zoning laws allow no more than one house per five acres—as Loudoun’s did in its western half—a square mile of land can accommodate only 128 households, or about 333 people. These severe restrictions on the supply of land for development caused median home prices in Loudoun and other Virginia suburbs to increase by more that 80 percent in the past four years, and homes in once affordable Loudoun now have a median price of $420,000.

But very few people want (or can afford) to live on five acres or more. According to the U.S. Bureau of the Census, nationwide less than 8 percent of American households live on lots of five acres or more, and many of those lots are probably farms. The average lot size for single family homes in the U.S. (excluding apartments) is about one-third of an acre, not the three to five acre mandatory minimum becoming common in suburbs.

While the recent election results in Maryland, Oregon, and Loudoun County marked a setback for the most primitive kinds of growth control, the more significant losses to the moderate wing of the smart growth/new urbanist movement are occurring in the zoning boards and planning commissions where proposals to construct higher-density “smart growth” communities are routinely rejected.

Typical of this trend are a string of recent rejections in Virginia, where 7 of the Nation’s 100 fastest growing counties are located and where sprawl and growth control are hot political issues. In just one month in late Spring 2005, three of four new urbanist-style developments proposed for the Washington, D.C., suburbs were rejected by public officials, and the fourth—more appropriately characterized as a market-based, transit-oriented development—is under attack from the community and an influential member of Congress

In sum, high-density developments are almost universally rejected by those who would have to live near them, and regulations give that rejection force of law. Conversely, in a free market where consumer choice is encouraged and capitalistic acts between consenting adults are permitted, developers would be allowed to provide the homes that families want to buy. But instead, the law prohibits much high-demand development, and the developer could be subject to ruinous fines and court-ordered coercion if he attempted to satisfy that demand.

As a consequence, ironically, the moderate wing of the smart growth/new urbanist movement can be counted among the major losers from the diminution of property rights. Some within the movement believe that a restoration of those rights would lead to more new urbanist communities than the present system allows. Indeed, in reaction to Kelo, John Norquist, President of the Congress of New Urbanism, endorsed Justice O’Connor’s harsh assessment: “I think that’s the potential. It’s shocking, really. The founders of the country put the word ‘public use’ in the Fifth Amendment for a reason, because they wanted property rights to be part of our democracy.” Unfortunately not all New Urbanists agree with Norquist. Leading New Urbanist architect Andres Duany, for example, admitted on the same day as the decision that he would use any means available—including eminent domain and government regulation—to achieve the desired result of more New Urbanist communities.

There may be a silver lining in all of this: Kelo is not merely a bad decision, but one so utterly repellent that it has flamed a firestorm of anger and rebellion across the nation. Concerned citizens now know that, thanks to Justice Stevens and his colleagues, when the wealthy and powerful covet their property, they are without any protection, stripped of their basic Constitutional rights. Distilled to its essence, Justice Stevens’s ruling has not just entitled the rich to prey upon the poor, but it also supports a process that encourages them to do so and thereby grants planners the resources and violence of the state to facilitate their acquisitive interests. Perhaps not since Dred Scott have the weak been so abused by the nation’s highest court.

So what to do? To his credit Senator John Cornyn (R-TX) has lit the match of rebellion with the introduction of the “Protection of Homes, Small Businesses, and Private Property Act of 2005” to prohibit the transfer of private property without the owners’ consent if the transfer is for economic development rather than public use. And House Judiciary Chairman James Sensenbrenner (R-WI) will introduce the “Private Property Rights Protection Act,” which is intended “to restore the property rights of all Americans the Supreme Court took away on June 23.” But more needs to be done, and the Court has handed President Bush an extraordinary opportunity to stand tall in defense of the ordinary people who have stood with him throughout his presidency.

To your side, Mr. President, summon some of the hundreds and thousands of Americans from around the country who have been dispossessed of their homes and businesses by the powerful businesses in search of a better location to sell their soap and socks.. Tell these people that you share and embrace their hopes and aspirations to fulfill the American Dream, and promise that you will stand by them and guarantee them equal protection under the law.

Include with theses dispossessed homeowners Susette Kelo, who has struggled for 7 years against all odds to preserve her home in New London, Connecticut. Invite Senator Joe Lieberman (D-CT) to join you on behalf of his constituent, and tell the world that this shall not stand. Tell them, too, that you are asking the U.S. Congress to enact emergency legislation to stay the Court’s destructive ruling and allow her to stay in her home. And once her home is secured, work with Congress to enact a comprehensive package of legislation to restore to the American people the property rights they once enjoyed under the protection of the Constitution. You should also urge Congress to extend similar protections from the increasing abusive land use restrictions—imposed under the guise of smart growth principles—that are making homeownership unaffordable for moderate-income families.

Set the fire, Mr. President, and let the American people have their Tea Party against corporate privilege.

Ronald D. Utt, Ph.D., is Herbert and Joyce Morgan Senior Research Fellow in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.

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[1] Kelo was brought by homeowners in New London, Connecticut. In the name of economic development, officials there sought to tear down a neighborhood to make way for a private office complex, which the town planners considered to be a higher use of the land. See “Eminent Domain Without Limits? U.S. Supreme Court Asked to Curb Nationwide Abuses,” Institute for Justice Litigation Backgrounder, at http://www.ij.org/private_property/ connecticut/con_property_backgrounder.html.

[2] See Ronald D. Utt, Ph.D., “Can Both Sides of the Sprawl Debate Find Common Ground on Property Rights?,” Heritage Foundation Webmemo No. 730, April 25, 2005, at http://www.heritage.org/Research/ SmartGrowth/wm730.cfm.

The RNC may not be all for it (Representative DeLay, for instance, has spoken out strongly against Kelo), but they have been conspicuously silent.

Here are the RNC's press releases since Kelo:

#   July 1, 2005 :
Declaraciones del Presidente del RNC, Ken Mehlman, sobre la 
Jubilación de la Jueza Sandra Day O'Connor
# July 1, 2005 :
RNC Chairman Ken Mehlman Statement On The Retirement Of 
Justice Sandra Day O'Connor
# June 28, 2005 :
Declaraciones de la Secretaria de Prensa de RNC Tracey 
Schmitt sobre el Aviso Más Reciente de MoveOn.org
# June 28, 2005 :
Statement By RNC Press Secretary Tracey Schmitt On The 
Latest Ad From MoveOn.org
# June 23, 2005 :
Declaraciones del Presidente del RNC Ken Mehlman sobre las 
Críticas por los Demócratas de Karl Rove
# June 23, 2005 :
Declaraciones de Hoy del Presidente del RNC, Ken Mehlman, en 
la Conferencia de la Asociación Nacional de Gobernantes 
Latinos
# June 23, 2005 :
RNC Chairman Ken Mehlman Statement On The Democrat Attacks 
Of Karl Rove
# June 23, 2005 :
RNC Chairman Ken Mehlman's Remarks Today At The National 
Association Of Latino Elected Officials (NALEO) Conference
# June 22, 2005 :
RNC Saca Nuevo Aviso de Internet que Destaca la Descabellada 
Retórica de los Demócratas
# June 22, 2005 :
RNC Releases New Web Ad Highlighting Democrats’ Wild 
Rhetoric
# June 22, 2005 :
Declaraciones del Presidente del RNC, Ken Mehlman, en 
Respuesta al Informe de los Demócratas sobre las Elecciones 
en Ohio
# June 22, 2005 :
Statement By RNC Chairman Ken Mehlman In Response To 
Democrats’ Ohio Election Report

Also, it annoys me to see so much Spanish going up on the RNC website.

hmm... we need an explanation from the RNC.

Yes. I have been trying for a week now, and it appears that the RNC approves of Kelo, at least from what response I am getting ("we will tell the management of your concerns").

The house res passed with only 18 dems voting against (I think, could be a little off).

Yes, the House vote on the resolution condemning Kelo was very good. Pretty much only the loony left voted predictably against the resolution, although I was kind of disappointed in the number who abstained.

Also, I noticed that in my previous post that I implied that Representative DeLay is formally associated with the RNC. I don't believe that is the case; sorry for any confusion that might have engendered.

In 1906, a case called C.B. & Q Railway v. Drainage Comm'rs., 200 U.S. 561 began the journey of expanding the police powers to encompass the "public welfare." http://www.freerepublic.com/focus/f-news/1434825/posts

The police powers are the power of government to regulate the use of private property to protect substantial injury to the general public health, safety (and morals.) For private property, stretching from English law way back into Roman law, this was the extent of government's regulatory powers not requiring just compensation.

There was also something called a "public franchise." This included bridges, public houses (taverns), sometimes community silos, public transportation - boats, taxis, etc.
Because they were generally licensed and were broadly and communally used by the public in a quasi-monopoly situation, they were burdened with additional government regulatory powers for the "general welfare" or "public benefit."

The case cited above was a Railroad case (public franchise.) It became the foundation of precident cited and applied in subsequent cases concerning private property. The subtleties of "private" and "public franchise" were apparently lost to the court. Now we end up compleletly losing the distinction between private property and that clothed with a public interest that can be taken or regulated to promote the general welfare.

He can do alot but his style is to do nothing.

But more needs to be done, and the Court has handed President Bush an extraordinary opportunity to stand tall in defense of the ordinary people who have stood with him throughout his presidency.

If he were to follow this advice I would gladly eat the words I've expressed in the last week about him.

I think most conservatives would agree with me that Bush has the 'potential' to rise to the stature of Ronald Reagan. But so far on domestic issues, he's no Reagan. He's more like his father, nice man, good military leader but poor as American leader.

But he's better than anything democrats have to offer execept maybe Zell Miller.

It's not just Washington. I once interviewed for a job at New Jersey Institute of Technology. I withdrew my name from consideration when I found that I'd have to live in Pennsylvania. Prices new Newark were just out of sight.

In case folks want to encourage the Weare, N.H., selectmen who have the power to take Judge Souter's house by eminent domain so that it can be replaced by a higher-tax-paying hotel, here are the Selectmen's addresses.

Board of Selectmen in general: office@weare.nh.gov

The Chair is Laura Buono: lbuono@weare.nh.gov

Vice-Chair is Leon Methot: lmethot@weare.nh.gov

Heleen Kurk: hkurk@weare.nh.gov

Joseph Fiala: jfiala@weare.nh.gov

Donna Osborne: dosborne@weare.nh.gov

Thanks fo your post. Bump.

It is great to see Americans so aware of, & energized in defense of, private property rights by addressing threats, this terrible precedent (Kelo v. New London), and becoming aware of the downside of activist Judges. I have been concerned with both of these related issues for about a decade. I even had brief, separate, conversational encounters with two of the "good" Justices (Scalia & Thomas) in the Kelo case about 6 or 7 years ago re: "The Takings Clause" of the 5th Amendment designed to protect private property from arbitrary seizures, but providing for Eminent Domain for certain "public use" (NOT "public purpose") . It was clear they were anxious to see some good cases walk toward them. I doubt if they would have predicted the bizarre outcome in Kelo, though.

For those of us who are deeply concerned with protection of Private Property from improper application of Eminent Domain in contravention of the Original Intent of the Founders in the 5th Amendment's Takings Clause, I am registering a warning or a concern:

I think AG (& potential USSC Nominee) Alberto Gonzales is very weak on Private Property Rights and lacks an understanding of orignainl intent of the 5th Amendment's Takings Clause (Eminent Domain) based both upon some cases when he ws at the texas Supreme Ct. (e.g., FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000))

and, more recently and significantly, upon his NOT having joined in the Kelo case on the side of property owner. My understanding ws that he had sided with the League of Cities against Kelo while WH Counsel.

As some have frequently observed, he certainly believes in a "Living Constitution" and is NOT a strict constructionist or an Originalist, but rather tends toward the Activist side, per National Review Online and others.

He has been sharply critical of Priscilla Owen in some Texas Supreme Ct. decisions when they were both on that Ct. as Justices, and he has been quoted as being sharply criticial fo Janice Rogers Brown, including being quoted by People for the American Way in their ultra-leftist propaganda.

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