The Eminent Domain Bandwagon

Submitted by jsmuscatello on Fri, 08/05/2005 - 13:47.

It appears Ohio State Senator, Senator Kim Zurz (28th
District) has jumped on the anti-eminent domain bandwagon. She has
started a personal blog called “Private Ownership and Public Good.� ( She ends her opening post by stating:

The use of eminent domain for private development is not new to Ohioans - the examples of Norwood, Ohio and Lakewood, Ohio, though different, demonstrate how little citizens can do in the face of eminent domain.

is common knowledge that the citizens of Lakewood went above and beyond
the call of citizen response. Or has she forgotten that a certain mayor
lost her job over the proposed Westend project.

Why are these politicians wasting our resources on something like this instead of dealing with more important issues in Ohio,
like school funding? Don’t get me wrong, I am not belittling the issue
of takings and eminent domain. People just need to realize that they
still have the ultimate say in whether or not any entity can just come
up to your property, offer you X amount of dollars and follow you out
your door with a bulldozer. That is not going to happen.

Supreme Court only made it clear that Economic Development is a
legitimate, valid “public use� of eminent domain. It does not give any
government or other entity more of a say in what happens to your
property. It is actually upholding the rights of the local government
decided long ago.

Justice Stevens,
author of the opinion states, "The City has carefully formulated an
economic development plan that it believes will provide appreciable
benefits to the community, including — but by no means limited to — new
jobs and increased tax revenue." Stevens
cited that the "comprehensive character of the plan, [and] the thorough
deliberation that preceded its adoption" led the Court to determine
that the "... takings challenged here satisfy the public use
requirement of the Fifth Amendment."

From a press release by the American Planning Association:

APA Executive Director and CEO, Paul Farmer,
AICP stated, "The court's decision reaffirms that cities and planners
have a responsibility to ensure the power of eminent domain is used
thoughtfully and consistently with implementation of a community's
comprehensive development plan. The court's decision not to
second-guess the local government's determinations of 'public use'
ensures that carefully thought-out community plans will not be hindered
by a higher standard of judicial review."

In a response to various media, Farmer stated:

APA has written much on the Kelo case and decision. I won't repeat all those arguments and insights here. There are extensive resources on Kelo and the other Supreme Court cases available on the APA website. I will, however, attempt to set the record straight on some vital facts:

No new powers were created as a result of the decision.
decision simply upheld existing legal precedent dating back 100 years
and reaffirmed many times in the last 50 years. The justices reaffirmed
that economic development qualifies as a "public use" under the Fifth
Amendment. No city in America can do anything after Kelo
that they couldn't do before the ruling. The petitioners were the ones
asking for new powers, namely the ability to have local eminent domain
decisions subject to review by federal judges.

Citizens are not more vulnerable to the use of eminent domain in light of the Kelo decision.
the opposite is true. Cities will be under more scrutiny than ever.
Officials should welcome this spotlight and continue to pursue eminent
domain in only the rarest circumstances.

State laws and constitutions governing eminent domain were not overturned.
In my home state of Illinois, state law would have prevented the situation in Kelo from ever arising. Many states have eminent domain standards stricter than those under review in Kelo.
The decision did nothing to change, amend, or undermine these laws. We
are certainly going to see similar restrictions introduced in other

The Court affirmed that a thorough and engaged planning process protects the values of citizens and their community.
The most important aspect of the decision in Kelo
is the fact that the Court specifically noted that communities are
granted deference in the determination of public use based primarily on
the fact that an open, participatory, and comprehensive planning
process was involved. Planning is the appropriate forum for public
debate and decision-making. Good plans outline the collective vision of
a community. The Court explicitly challenged backroom deals and made it
very clear that the ruling would have been different had the private
entity initiated the project requiring exercise of eminent domain.

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