The Kelo v. City of New London Supreme Court decision has brought the abuse of eminent domain to the forefront of the public’s awareness.  In Florida, private-sector developers and their allies in municipal-planning and economic-development departments are moving ahead on a number of projects that will force hundreds of retired mobile-home dwellers, and residents in modest homes and businesses, out onto the street.  Humble abodes are being razed to make way for upscale developments.  Local governments are making use of their eminent-domain powers, which are based on the Fifth Amendment to the U.S. Constitution.  This amendment initially prevented the federal government from depriving persons of their property “without due process of law,” and, when private property was to be taken for “public use,” just compensation was required.  In 1925, the U.S. Supreme Court endorsed the Incorporation Doctrine, applying the Bill of Rights via the 14th Amendment to the states.

The definitions of “due process,” “public use,” and “just compensation” vary somewhat among the states.  Each state sets up a system where projects are proposed to local governments, and then meetings and hearings are held, sometime in public.  If the appropriate hoops are jumped through, due process is normally considered to have been followed.  Unfortunately, much of this process can fly under the radar of the public until it becomes very difficult to stop the development juggernaut.  In Illinois, for example, developers can come in and talk to a city administration with little or no public notice.  State law permits the council, mayor, and administration to meet in executive session, away from the media and the public, to discuss real-estate transactions.  Frequently, developers demand secrecy under the guise of not wanting to lose any advantage to their erstwhile competition.  It is customary to use code names for these sorts of projects until it is time for formal approval by the legislative wing of the local government.  Opponents of these projects are hampered because they do not really know whom they are fighting.

Where the Kelo decision really opened up private property for eminent-domain abuse is in the expansion of accepted notions of what constitutes public use.  Any developer worthy of the name can conjure up all sorts of reasons why a given proposal leads to the public good, and anyone who opposes his project is guilty of being against Progress.  Initially, eminent domain was used to acquire land for streets, wells, sewer plants, and the like.  In the mid-19th century, a certain well-connected railroad lawyer became president and smoothed the way for his friends in the business to acquire rights of way for new tracks.  Later, these powers were also given to public utilities to gain easements for power lines and gas mains.  Now “public use” is so broadly construed as to cover just about any use of private property.  No wonder the public is alarmed.  Our domestic castles are being surrounded by well-financed and formidable artillery.

Illinois legislators are feeling the heat from the public.  The Castle Coalition claims that there is relatively little likelihood of a Kelo-type situation occurring in Illinois.  Yet municipalities such as Machesney Park, near Rockford, are busily condemning property in order to combine the parcels and make them more suitable for retail development.

State Sen. Susan Garrett (D-Lake Forest) recently introduced SB3086 to counter this trend.  Her bill is intended to rein in abuse of eminent domain by tightening state laws governing condemnation and the legal definitions of what constitutes blight and dilapidation.  The bill also has provisions for payment of relocation costs under some conditions.  It mandates some remuneration for legal costs if a court awards compensation greater than that initially offered by the condemning government or if the court finds that the taking is not warranted.

Many opponents of eminent domain want to eliminate any use of it against the owners of blighted properties.  They would rob local governments of a necessary tool to force slumlords to keep up their properties and to condemn and demolish dangerous buildings.  Without eminent domain, it would be much harder to redevelop brownfield sites in many of our older towns; without such redevelopment, there is more suburban sprawl and a further deterioration of older urban centers, even in rural areas.

Like gardeners, municipalities need to pull weeds and perform necessary pruning.  The difficult part of reforming eminent domain lies in the need to achieve the delicate balance of protecting property owners against expropriation, on the one hand, yet allowing for removal of blighted or dilapidated buildings, on the other.  Though it is being vigorously opposed by such interest groups as the Illinois Municipal League, Senator Garrett’s bill appears to be well structured to achieve this balance.