Eminent domain decision: no shock, and qualified, if you follow history

To hear the major newspapers and farm groups tell it, the world of private property rights collapsed June 23.
That is when the U.S. Supreme Court upheld a lower court ruling that allowed the city of New London, Conn., to use its powers of eminent domain.
The city wanted to condemn homes so that privately-financed luxury apartments, a hotel, conference center and Pfizer’s corporate offices could be built.
The 5-4 decision was “Eminent Disdain,” roared an op-ed headline in the July 9 New York Times.
The American Farm Bureau Federation was “outraged” over the ruling noted federation President Bob Stallman in a blood-red, lily white and saintly blue Fourth of July press release.
The upshot, Farm Bureau Bob surmised, is “Apparently, no one’s home, or farm or ranch land, is safe from government seizure because of this ruling.”
Inconsistent and errant. Let me see if I understand this. The federation is “outraged” with this “apparent” expansion of government power just one month after it was “happy” the Supreme Court categorically stripped farmers and ranchers of their guaranteed First Amendment free speech rights in government checkoff issues?
The inconsistency not only staggers this farm-raised brain, but it is also built on error.
“The (Supreme) Court did not carve out a whole new definition of eminent domain June 23,” said Roger McEowen, associate professor of ag law at Iowa State University.
“Instead, it reaffirmed what it had said in two previous cases; one in 1954 and another in 1984.”
In fact, explains McEowen, anyone who had been following the Connecticut case, as he was, could have predicted the outcome – as he did in print last March.
“There are five decades of precedent in the case, so an affirming opinion was no shock at all,” he said.
“The only thing that surprised or shocked me was that the decision came on a close 5-4 vote, not a wider 6-3 or 7-2 vote.”
Clarifying case. According to the Iowa professor and lawyer, the Court used the controversial eminent domain case to better clarify when government can use its “takings” powers to promote private development through public use: condos versus parks, shopping malls versus highways.
The equation, he explained, is a new balance between public purpose and public use.
“The Court said it is legal to look at a broad number of factors to determine ‘public use’ when invoking eminent domain,” noted McEowen.
In short, invoking eminent domain doesn’t have to result in a road, bridge or park; it can result in privately financed luxury apartments, football stadiums or shopping malls if those private ventures generate public purpose – usually greater local taxes to pay for better libraries, schools or roads.
“And the key to that view, according to the Court,” added McEowen, “is a ‘development plan,’ a road map to show the benefits to the public-at-large.”
Again, none of this is new, said McEowen.
“The legal groundwork for this opinion has been around 50 years. Most farm groups and most of the ag press were wrong in saying this decision was such a shock.”
State and local level. The decision, however, will spur state and local governments to re-examine their use of eminent domain.
Shortly after the June 23 decision was handed down, the Texas and Illinois state legislatures promised action to limit the use of eminent domain for private investment.
Whether you agree with the Court or not, McEowen suggests, the decision will have one vitally important impact: It will spur public discussion and debate over local land use and local zoning.
“That discussion will be good for society in general and agriculture in particular because it brings local people back into decisions over local land use and local zoning. It puts the ball back into the hands of people.”
So “one’s home, or farm or ranch land” cannot be taken arbitrarily by the city, county, state or federal government through eminent domain to build, say, a ski resort or golf course?
“Not unless this is a rational use,” explained the lawyer, “and there is a development plan in place and public purpose equals public use.”
So relax, Bob. This is still America.
Except, of course, when it comes to checkoffs.
(Alan Guebert’s Farm and Food File is published weekly in more than 75 newspapers in North America. He can be contacted at agcomm@sbcglobal.net.)

About the Author

Alan Guebert was raised on an 800-acre, 100-cow southern Illinois dairy farm. After graduation from the University of Illinois in 1980, he served as a writer and editor at Professional Farmers of America, Successful Farming magazine and Farm Journal magazine. His syndicated agricultural column, The Farm and Food File, began in June, 1993, and now appears weekly in more than 70 publications throughout the U.S. and Canada. He and spouse Catherine, a social worker, have two adult children. farmandfoodfile.com More Stories by Alan Guebert

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