I think this new U.S. Supreme Court ruling could be construed BADLY with
respect to cemeteries which "lie in the path of progress". See:
http://www.abanet.org/journal/ereport/jn24sct.html
SUPREME COURT REINFORCES TAKINGS POWER
Justices Rule a Municipality May Seize Private Property to Help a Developer's
Project
BY JOHN GIBEAUT
ABA Journal EReport
Susette Kelo lost her tidy waterfront home, and New London, Conn., gained an
upscale residential, retail and commercial development yesterday when the
U.S. Supreme Court narrowly held that the city's plan to seize homes from
Kelo and her neighbors satisfied the public use requirement of the Fifth
Amendment's takings clause.
The 5-4 decision could greatly expand municipalities' use of condemnation
not only to clear away urban blight for economic development, but also to
take well-kept homes and other property in still-viable neighborhoods for
the same purpose. Kelo v. City of New London, No. 04-108.
"I think it's a great victory for the people of New London, who are our
clients," says city lawyer Daniel J. Krisch of Hartford. "Now an economic
development program that has been on hold can go forward. And it's a great
victory for cities across the country."
The city embarked on the project in New London's Fort Trumbull area after
the area's last major employer, the U.S. Naval Undersea Warfare Center,
closed in 1996, eliminating 1,500 jobs. For the Supreme Court majority, the
case boiled down to the greater good against the interests of Kelo and eight
of her neighbors, who had fought the plan for five years.
"Those who govern the city were not confronted with the need to remove
blight in the Fort Trumbull area, but their determination that the area was
sufficiently distressed to justify a program of economic rejuvenation is
entitled to our deference," Justice John Paul Stevens wrote for the
majority.
Joining Stevens were Justices Anthony M. Kennedy, David H. Souter, Ruth
Bader Ginsburg and Stephen G. Breyer. Justice Sandra Day O'Connor led the
dissent, joined by Chief Justice William H. Rehnquist and Justices Antonin
Scalia and Clarence Thomas.
The decision flowed from the court's gradually expanding view of the takings
clause over the last century. It's an expansion that finally has gone way
too far, O'Connor complained in the main dissent, suggesting the decision
signals open season on homeowners.
"Under the banner of economic development, all private property is now
vulnerable to being taken and transferred to another private owner, so long
as it might be upgraded - i.e., given to an owner who will use it in a way
that the legislature deems more beneficial to the public-in the process,"
O'Connor
wrote.
But careful planning and a $10 million bond issue the state floated toward
creation of a park in the area also played significant roles in the outcome.
The development would raze 115 homes and replace them with a waterfront
conference hotel, restaurants, shops, marinas, rows of urban townhouses and
an office park. Pharmaceutical giant Pfizer Inc. also plans a $300 million
research facility on an adjacent site.
"The city has carefully formulated an economic development plan 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.
"As with other exercises in planning and urban development, the city is
endeavoring to coordinate a variety of commercial, residential and
recreational land uses with the hope that they will form a whole greater
than the sum of its parts."
The court also reaffirmed that it intends to continue giving states wide
latitude in justifying public uses for property condemned under the takings
clause. Thus, the next fight looms in state courts, say lawyers for the
Institute for Justice, a Washington, D.C.-based libertarian public interest
law firm that represents the homeowners.
"It's a dark day for American homeowners," Institute senior attorney Dana
Berliner said in a statement. "While most constitutional decisions affect a
small number of people, this decision undermines the right of every
American, except the most politically connected. Every home, small business
or church would produce more taxes as a shopping center or office building.
And according to the court, that's good enough reason for eminent domain."
Kelo and her neighbors, who own 15 of the homes in all, were the lone
holdouts who fought the southeastern Connecticut city's plan through the
state justice system and on to the U.S. Supreme Court.
Kelo and her husband, Tim, bought their pink Victorian in 1997. The Supreme
Court majority noted that she has made extensive improvements to the home,
which is near the point where the Thames River flows into Long Island Sound.
One of Kelo's neighbors, Wilhelmina Dery, was born in her Fort Trumbull home
in 1918 and has lived there all her life.
"There is no allegation that any of these properties is blighted or
otherwise in poor condition; rather, they were condemned only because they
happen to be located in the development area," Stevens wrote.
The majority also eschewed a hard-and-fast rule proposed by the homeowners
that economic development does not qualify as a public use under the takings
clause. That proposal is supported "neither by precedent nor logic," the
court said.
Despite the ominous warnings coming from the Supreme Court dissenters and
the homeowners' lawyers, city lawyer Krisch predicts that dollars and
political sense will act as checks on abuses.
"This is still public money," Krisch says. "Cities don't become
spendthrifts
just because they can use eminent domain. They still have to pay for the
property."