Thoughts on the Use of Eminent Domain

I have been doing some research on all the questions I have been getting about eminent domain and the recent Kelo case decided by the Supreme Court. The following seems to be a very balanced and fair look at the issues from all sides of the case with an Illinois focus. I am not advocating one way or the other, but I think this article fairly represents the issues.

What the U.S. Supreme Court ruling in Kelo does not do.

• The Court did not expand the use or powers of eminent domain in the Kelo decision, but simply reaffirmed numerous existing decisions made by the Court over many years; that economic development qualifies as a "“public use" under the Takings Clause of the U.S. Constitution.
• Rather than expanding the use, the Court placed new limits on the use of eminent domain for economic development purposes, emphasizing the importance of a "“carefully considered development plan"” for the area based upon "thorough deliberation," that was not adopted to "“benefit a particular class of identifiable individuals."” Contrary to what some critics have said, the Court noted that it would not necessarily uphold "“a one-to-one transfer of property, executed outside the confines of an integrated development plan."”
• The effect of the Court'’s decision is even more limited in Illinois. The decision will have little effect in Illinois and the seven other states that prohibit the use of eminent domain for economic development except to eliminate blight. This "“blighting"” requirement did not exist in Connecticut state law. The Illinois Supreme Court'’s decision in the SWIDA case placed further restrictions on the use of eminent domain for economic development.
• The use of eminent domain is additionally constrained in Illinois under code provisions related to specific economic development programs. For example, both the Commercial Renewal and Redevelopment Areas Act and the Tax Increment Allocation Redevelopment Act require a redevelopment plan, the declaration of blight, and provision that property owners receive just compensation.
• The law of eminent domain is still particular to each state. The Supreme Court'’s ruling does not supersede state laws and constitutions that govern the local application of eminent domain. It did not overturn the laws of any states, such as Illinois, that currently have restrictions.
• The U.S. Supreme Court also did not foreclose a stricter review of future takings cases that challenge certain applications as truly a "“public use."
• The ruling in Kelo is simply consistent with seven previous rulings in the United States Supreme Court, reaffirming that where the public use by a government is legitimate, the courts will not stand in the way of the use of eminent domain.
• The rumors of the death of property rights are greatly exaggerated; in fact, the Kelo decision may have the opposite effect. Cities are now under an additional spotlight when it comes to eminent domain.

There are clear checks on the misuse of eminent domain by cities.

• Appropriate checks and balances exist through the Illinois statutes and the public hearings municipalities must conduct, providing both transparency and due process.
• The use of eminent domain by cities is further checked by the fact that the legislative bodies of cities must act for eminent domain to be used. This is not necessarily the case at the State or Federal levels.
• Elected officials very carefully balance the needs of the public good with the consequences on individuals. Nothing in local government attracts more scrutiny and criticism than the use of eminent domain, and local officials do not make these decisions lightly or arbitrarily.
• The Federal and State Constitutions'’ Just Compensation requirement ensures the just treatment of property owners, as do State laws that govern the use and limits of eminent domain.
• The media spotlight demands accountability, and public scrutiny is intense concerning these sensitive issues.
• As to compensation, a jury of their peers determines the value of property, after a lengthy proceeding, weighing each party'’s arguments.
• Since the eminent domain process is time consuming and expensive, it is the last resort pursued during a land assembly process. Many local authorities rarely exercise their power of eminent domain, and when it is used it is because efforts to reach a negotiated settlement have failed.

The use of eminent domain for economic development is appropriate for cities.

• Eminent domain is indispensable and is most often used only as a last resort for revitalizing local economies, creating much-needed jobs, and generating revenue that enables cities to provide essential services.
• The authority must be used prudently, in the sunshine of public scrutiny, with public comment and in full recognition that the resulting action will achieve a greater public good that benefits the entire community.
• The options for assembling parcels for broader economic purposes pose a serious challenge for many cities.
• Cities and towns in mature and older communities do not often have sufficient areas of developable tracts. Eminent domain helps cities assemble parcels into developable tracts.
• Often the alternative is to use undeveloped land on the fringes of cities, which is often cheaper and easier to develop, but contributes to sprawl, increased infrastructure costs that must be absorbed by the larger community, and traffic congestion.
• With cities and towns facing ever-shrinking resources, cities need all the help they can get to redevelop neighborhoods and provide jobs for citizens. Eminent domain provides a tool to do so and must be used wisely, with ample citizen input and involvement.

Eminent domain for economic development purposes does constitute a "“public use"”.

• Eminent domain used prudently is a tool to help local governments respond to the needs in their communities. Those needs are varied and include direct public benefits like roads and schools, and other benefits like economic development in blighted sections of cities. This supports a strong urban economy necessary to sustain good jobs and help improve the quality of life.
• Municipal governments are best suited to assess local needs and develop the strategies and plans necessary to meet those needs.