08-22-2007 Council Agenda - Laserfiche WebLink

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Eminent Domain \EVAPd Versletter: Vov. 2006 Stephen Grittman, JD. AICP Law and Planning Committee As most everyone has to be aware, this past year and a half has brought eminent domain into the limelight of public discussion at all kinds of levels. Even your next door neighbor, who — with skepticism - always wondered what a planner does, was suddenly waiting for "the government" to move in and "take" his house. The Constitution So what exactly happened? Perhaps the best place to start is with a brief review of the basics. Eminent domain is an implied power of a sovereign government. That is, the sovereign has the power to take private property for the use of the sovereign — that's part of what being a "sovereign" is all about. The U.S. Constitution addresses this activity only in the negative, by establishing a limitation. This limitation is stated at the end of the Fifth Amendment. It's a good idea to actually read the amendment — it almost makes you wonder how the clause got tacked on in this spot. Apart from requirements for a Grand Jury, exceptions to Grand Jury for military cases, protections against double jeopardy, and testifying against oneself ( "pleading the Fifth "), the Fifth Amendment ends thus: "... nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation." So, eminent domain is an inferred power, but only within a specific set of rules: 1) a person subject to the power gets "due process" — essentially the right to a legal proceeding; 2) eminent domain must be for a "public use "; and 3) the private property owner is entitled to "just compensation ". Supremes Unleash Kelo Decision On Unsuspecting Public! Last year, the U.S. Supreme Court handed down its decision in Kelo v. City of New London, 125 S.Ct. 2655 (June 23, 2005). In Kelo, the issue was whether the City's economic development plans constituted a valid public use. The Court decided that the City's use of eminent domain was supported by the existing statutory and case law, and confirmed the idea that economic development was, in fact, a legitimate public use, in compliance with the second requirement noted above. Although the debate over eminent domain since the ruling has been full of public relations hyperbole, the Court's decision was essentially to change nothing. For local government, the outcome of the Kelo decision ratifies the idea that comprehensive and thoroughly developed planning activities and the plans that result are 6