Last year the Supreme Court of the United States agreed to hear the eminent domain case Kelo v. City of New London. Eminent domain is the power of a governmental entity to take private real estate for public use, with or without the permission of the owner. The Fifth Amendment to the Constitution provides that “private property may not be taken for public use without just compensation.” The Fourteenth Amendment added the requirement of just compensation to state and local government takings. A sharply divided Court held that the city’s taking of private property to sell for private development qualified as a “public use” within the meaning of the takings clause. The city was not taking the land simply to benefit a certain group of private individuals, the Court reasoned, but was following an economic development plan. Such justifications for land takings, the majority contended, should be given deference. The takings at issue in the case qualified as “public use,” despite the fact that the land was not going to be used by the public. The Fifth Amendment did not require “literal” public use, the majority said, but the “broader and more natural interpretation of public use as ‘public purpose.’ “
The Kelo decision involved the taking of real property in an urban area to be redeveloped by private developers for commercial use. Eminent domain has often been used to encourage development in “blighted” areas in the name of urban renewal.
Opponents of eminent domain consider Pennsylvania’s current law terrible. They maintain that it allows condemnation of property because it is economically or socially undesirable. These opponents argue that the current laws allow condemnation of supposedly blighted areas but then has a blight definition that is so loose that it could apply anywhere. A new bill if passed will place unparalleled limits on the government’s ability to take property from one person or entity to then give it to another person or entity.
Many feel that the Kelo decision gives the government too much leeway in the taking of private property. The Pennsylvania legislature is no exception. In response to the Kelo decision the Pennsylvania Senate and House of Representatives have passed versions of the “Property Rights Protection Act.” This bill would prohibit the use of eminent domain for commercial development and considerably tightens the definition of blight (declaring a property “blighted” is a requirement for condemning it and transferring it to another private party). The most recent versions of the bill however exclude existing blight designations in parts of Allegany, Philadelphia and Delaware Counties. The exceptions, which expire after seven years do not apply to new blight designations in those places. Despite the exclusions in this bill, the ability of a governmental agency in Pennsylvania to take property under the doctrine of eminent domain would be among most restrictive in the country.
The U.S. Senate and House have each passed versions of the “Protection of Homes, Small Businesses, and Private Property Act of 2005” to limit the use of eminent domain for economic development. The restrictive language in these bills prohibits the federal government from exercising eminent domain power if the only justifying “public use” is economic development; and imposes the same limit on state and local government exercise of eminent domain power through the use of Federal funds. As most small-scale eminent domain condemnations (including notably those in the Kelocase) are entirely local in both decision and funding, it is unclear how much of an effect the bill would have if it passed into law.
Some legislators and legal experts believe that the newly proposed laws would violate the separation of powersdoctrine and that it would require a constitutional amendment to alter the meaning of the Fifth Amendment as interpreted by Kelo. These individuals reason that when Federal funds are withheld that are otherwise needed to enforce a decision of the Supreme Court, that decision is nullified; thus usurping authority of the Supreme Court.
With the national and state elections pending and with the recent change to the Supreme Court it is likely that there will be much more discussion about eminent domain before this issue is resolved. If you believe you might be affected by the government’s use of eminent domain, it is it is important to seek legal counsel to protect your right.
— J. Ken Butera