A Private Property Setback


The Supreme Court voted 5-4 today that the government can take an individual’s home and transfer it to a corporation or other entity to undertake commercial development. The court ruled that the “public use” requirement did not have to be taken literally. The public will, after all, benefit from the increased tax revenue once the homeowners are tossed and their private property is taken and given over to a developer.

The interesting dynamic is the vote. Stevens, Souter, Ginsberg, Breyer, and Kennedy voted in favor of taking private property and giving it over to the state to transfer to another private entity.

O’Connor, Rehnquist, Scalia, and Thomas voted for the minority proposition that the “public takings” clause actually meant that the government can only take the property for public use, not to pass it off to another private entity.

Writing for the court, Justice John Paul Stevens said local officials, not federal judges, know best in deciding whether a development project will benefit the community. States are within their rights to pass additional laws restricting condemnations if residents are overly burdened, he said.

“The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including _ but by no means limited to _ new jobs and increased tax revenue,” Stevens wrote in an opinion joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

“It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area,” he said.

Justice Sandra Day O’Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.


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Erick Erickson

1 comment

  • I’m not a lawyer and I’m certainly no expert on real estate but I always thought that private property rights were kind of a foundation of our economic system. If a city takes an older neighborhood of property-tax-paying residents and turns it over to a developer who builds a strip mall that (like many in Macon) can’t keep tenants and it turns into an eyesore and a magnet for criminals then you can’t claim the public has benefited in any way.

Erick Erickson

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