Tuesday, March 01, 2005

Eminent case

The property rights movement in the US has been on a tear over the last 20 years, proving with its myriad high-profile court cases that it’s not just about ranchers in the West. The quest has been to prove that regulatory actions in land use are the equivalent of a taking – based on the last clause of the Fifth Amendment to the Us Constitution, which says, “nor shall private property be taken for public use, without just compensation.” The movement seems unlikely to come away with a big victory in Kelo v. City of New London, set for a ruling by the US Supreme Court. In that case the “public use” part is at issue, and the court seems uninterested in revisiting 50 years of judicial deference in the justification of local eminent domain. But even in defeat – if that’s what happens – the case will have an impact. Governments and developers may think twice about using eminent domain, and will undoubtedly strive to make a more solid case for how the public will benefit from redevelopment of a site, a prediction made by Leonard Zax and Rebecca Malcolm in the January issue of Urban Land magazine (http://www.urbanland.uli.org/). One other thing to watch in the aftermath: lingering hard feelings between developers and property rights lawyers, usually hand-in-hand, but on opposite sides for Kelo.


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