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Justices to Take on Cities' Seizure of Private Land

The Supreme Court will hear an appeal in a Connecticut case that could test the government's power of eminent domain.

September 29, 2004|David G. Savage | Times Staff Writer

WASHINGTON — The Supreme Court agreed Tuesday to consider reining in the power of cities to seize private homes to make way for business development.

Cities and states, armed with constitutional power to take private property for "public use," traditionally have used it to build roads, schools and airports.

But in recent years, many cities began using their land-use authority to condemn older homes to clear the way for shopping malls, hotels, apartments and business complexes. Officials say these private developments bring public benefits, including jobs and more tax revenue.

The justices voted to hear an appeal brought on behalf of several families in a working-class neighborhood of New London, Conn. Taking homes for private developments, they argue, is not what the Constitution means by public use.

The libertarian Institute for Justice, which represents the homeowners, is urging the Supreme Court to call a halt to what it sees as a dangerous trend.

"If jobs and taxes can be a justification for taking someone's home or business, then no property in America is safe," said Dana Berliner, a lawyer for the group. "Anyone's home can create more jobs if it is replaced by a business, and any small business can generate greater taxes if replaced by a bigger one."

The New London case testing the government's power of eminent domain was one of eight the justices said they would hear in their new term, which officially opens Monday.

The justices met this week for the first time since late June, working through more than 1,200 appeals. Most will be turned down without comment next week.

The property rights dispute is likely to have a broad effect.

Between 1998 and 2002, there were more than 10,000 instances in 41 states where local officials moved to condemn private property so that they could transfer it to other private users, the Institute for Justice's lawyers told the court. Often, these developments require the uprooting of elderly people who have lived in their homes for decades.

Although lower courts have agreed that officials can condemn and raze slums, they are divided over whether city planners can seize private land to make way for private development.

The Constitution says people whose property is taken are entitled to "just compensation." But the New London homeowners say the government is not entitled to take private property in the first place unless it is needed for a public use. The recent trend "raises the specter that eminent domain authority is now being used to favor purely private interests," their lawyers say.

In their response, city officials say New London has been depressed since the closing of the Naval Undersea Warfare Center in 1996.

"New London was a city desperate for economic rejuvenation," they said. When Pfizer Inc., the pharmaceutical firm, opened a research center in 1998, the city announced plans for a 90-acre economic development in the nearby Fort Trumbull section. It envisioned a waterfront hotel and conference center, a retail complex and a new office park.

All that stood in the way were several dozen old homes. Susette Kelo and several other owners sued to keep their homes, saying the Constitution protected their rights to their private property.

This year, the city won a 4-3 ruling from the Connecticut Supreme Court.

"Far from being radical or groundbreaking ... the revitalization of an economically distressed city is a valid reason to condemn private property," city officials argued.

But the Supreme Court said it would have the last word in Kelo vs. City of New London.

In a separate case testing local zoning powers, the justices agreed to decide whether cities could be sued and forced to pay damages for refusing to permit the building of a wireless telephone tower.

Congress encouraged the growth of wireless phone networks in the 1996 Telecommunications Act, saying local officials may not use their zoning power to "prohibit ... the provision of personal wireless services." But the law did not say officials must allow new towers, nor did it say what would happen if a city wrongly refused to permit a needed phone tower.

The justices agreed to hear an appeal filed by the city of Rancho Palos Verdes, which has been involved in a dispute with a homeowner who erected a 75-foot antenna on his property.

Typically, these disputes involve businesses, such as phone companies. But in the Rancho Palos Verdes case, Mark Abrams was denied a permit to use his antenna for commercial broadcasts, and he sued the city.

A federal judge in Los Angeles ruled for Abrams but said he was not entitled to monetary damages.

Last year, the U.S. 9th Circuit Court of Appeals disagreed, ruling that cities that violate the terms of the 1996 law can be forced to pay damages and the plaintiff's lawyer's fees.

In its appeal, the city said that ruling could expose localities to a series of costly verdicts. "Virtually every antenna-siting decision has the potential to become, quite literally, a federal case," said City Atty. Carol Lynch. She says the law allows homeowners or businesses to win a court order, but not monetary damages.

The justices will hear the case of the City of Rancho Palos Verdes vs. Abrams early next year.

The justices also will decide whether foreign-flagged cruise ships that travel to and from U.S. ports must comply with the federal law that protects the rights of disabled persons.

Hotel, restaurants and other "places of public accommodation" must make their facilities accessible to persons who are in wheelchairs or have other disabilities. But the foreign carriers say they are not required to comply.

Lower courts are split on the issue, and the Supreme Court said it would resolve the matter in the case of Spector vs. Norwegian Cruise Lines.

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