June 3, 2005

Home Might Not Be Where the Heart Is
by Donald G. Mashburn

Happenings at the U.S. Supreme Court are so distant they often seem to have little to do with life in the real world we live in. That could change if the court approves the attempt by New London, Conn., to take the homes of residents of the Fort Trumbull neighborhood and turn them over to private businesses.

The Court recently heard arguments on the issue of whether municipal governments, such as New London, can take private property and transfer it to commercial owners, justifying the taking on the basis of increased tax revenue. If the high court buys New London’s arguments, and its loose definition of “public use,” homeowners everywhere will be at risk, whether they live in San Francisco, Kalamazoo, or Peoria.

Then the phrase, “Home is where the heart is,” or “Home is where you hang your hat,” won’t have the same ring or meaning. And the Woody Guthrie song, “This Land is Your Land,” might be re-titled, to read, “This Land is Your Land (Till the City Decides It Wants It).” The title will sound out of place, but no more so than the displaced homeowners whose property is taken for private developers.

And all to what purpose? Well, in New London, to the purpose of gaining more tax revenue for the city. Daniel Krisch, an attorney for New London, admitted as much. Part of Krisch’s argument was that by taking the residences of owners unwilling to sell, New London would benefit from more jobs, and city tax revenue would be increased.

Justice Sandra Day O’Connor did not seem completely convinced. When Wesley W. Horton argued New London’s side of the issue, O’Connor asked if a city wanted to turn a “Motel 6 into a Ritz-Carlton, would that be OK?” Lawyer Horton replied, “Yes, your honor it would be.”

And that’s the big rub. If cities can condemn private property so developers can develop businesses that produce more tax revenue, where will it stop?

A corner service station, and neighboring houses and buildings, could be razed to make way for a high sales volume restaurant or discount store.

Private homes could be dozed off for high-rise apartments, office buildings, or any other higher-revenue enterprise yielding more tax dollars. Modest businesses, such as those found in neighborhoods and strip malls could be cleared for anything that promised to make the tax assessor happier.

And if you can imagine the very lowest level of municipal property pinching, even church property could be condemned to make way for high dollar-volume businesses like gambling casinos, or worse.

The Constitution does provide for the taking of private property for “public use,” but only after “due process” and “just compensation.” Increasingly, however, city governments nationwide aggressively take property to benefit private business, justifying their highhandedness with the promise of more jobs and tax revenue.

The Constitution provides little comfort or protection for the average homeowner facing city hall and its battery of tax-paid lawyers. So if the Supreme Court rules against the Fort Trumbull homeowners, Congress should step in with whatever legislative or constitutional remedies are necessary to curb unwarranted taking of private property.

Short of that, abuses will continue, and “public use” will mean whatever judges want it to mean. No doubt the framers of the Constitution had in mind legitimate public use, such as roads, utilities and the like. But condemnation of property to remove “blight” has been commonplace, so much so that blight is used to cover many abuses.

And, oddly, blight often exists where the developers plan the new enterprises that city planners love to approve – usually with enthusiasm.

The Supreme Court has a chance to make a historic ruling that protects the citizen homeowner. If they do, homeowners in Any Town, USA, needn’t worry about answering the door to be told: “I’m from the city, and we want your home. Find a new place to hang your hat, and take your heart with you!”