Kelo decision has spurred changes in 42 states

ARLINGTON—It’s been almost three years since a U.S. Supreme Court decision made people realize their American dreams literally could be snatched right out from under them. 

In Kelo et al. v. City of New London, Conn. et al., the Supreme Court ruled that the use of eminent domain—governmental taking of property from a private owner to give to another—is acceptable if the state’s laws allow economic development as permissible “public use” under the Fifth Amendment.

Susette Kelo and eight other private property owners in New London were forced to move out of their homes so the city could sell their 15 lots, along with 100 others, to a commercial developer who promised to redevelop the area. Her house has since been moved to another part of New London and reassembled as a monument to the fight against eminent domain abuse. It will be unveiled June 21 to commemorate the third anniversary of the Supreme Court case.

“Prior to Kelo, people didn’t realize this kind of brazen, carte blanch takings were happening,” said Steven Anderson, director of finance and administration for the Institute for Justice, a civil liberties law firm that represented Kelo and the other homeowners involved in the case. “Once this happened, there has been a much greater awareness.” Anderson also directs the IJ’s Castle Coalition, which represents citizens fighting eminent domain abuse.

The coalition has given Virginia a grade of B+ for eminent domain reform in its 50 State Report Card: Tracking Eminent Domain Reform Legislation Since Kelo report released last summer.

The Kelo decision unleashed a wave of eminent domain takings. In the first year after Kelo, more than 5,700 properties nationwide were threatened by or taken with eminent domain for private development, according to the IJ.

However, Anderson said, after the initial flood, the public began fighting for reforms. “The good news is that (Kelo) unleashed an unprecedented backlash from the public,” he said.

Since the summer of 2005, 42 states have passed laws increasing protections against eminent domain takings, and some states have even passed constitutional amendments protecting private property rights. The Virginia Farm Bureau Federation is working with other organizations to amend Virginia’s constitution.
“Our members believe private property rights need to be constitutionally protected,” said Martha Moore, VFBF director of governmental relations. “Because a farmer’s assets are mostly land-based, they feel constantly under threat from eminent domain.”

Right now Virginia has a law that says the government cannot take private property unless it’s for a specific public use such as utility pipelines or roads. The legislation says that property can be taken only when the public interest dominates the private gain and the primary purpose of taking the property is not for any private financial gain or benefit or an increase in employment.

The current state constitution, however, allows the General Assembly to define public use.

Two constitutional amendments were introduced in this year’s state legislature and carried over to 2009. They would better define public use with regard to eminent domain.

Contact Anderson at 703-682-9320 or Moore at 804-290-1013.

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