Monday, August 15, 2005


Another takings case is pitting landowners against the government and more wealthy landowners. The Supreme Court case "Kelo v. New London" caused quite a stir in the country. Usually hot-button issues like abortion and school prayer garner the most attention from the media and a public that is not quite sure how the Supreme Court works and decides cases. But, issues of property, home ownership and eminent domain are able to be understandable and relatable for everyone. Americans were horrified at the thought of their homes being taken away from them in order for high-rise luxury condos, hotels and casinos to sprout up as gushers of tax revenue.

The latest case comes from Tempe, AZ courtesy of the Arizona Republic...

Tempe this week will try to convince a judge that the city should be allowed to take immediate possession of land from 13 property owners to build a $200 million mall. Developers plan to transform a polluted, rough-and-tumble industrial corridor into a bustling shopping center. But Maricopa County Superior Court Judge Kenneth Fields must decide Tuesday if Tempe can use its eminent domain powers to take the 200-plus acres. The condemnation fight comes just weeks after the U.S. Supreme Court broadened the government's right to take land from private owners.
The mall also could bring Tempe an economic windfall. An estimated $5 million in annual sales tax revenue, and 4,500 jobs hang in the balance, the city says. Meanwhile, it's unclear how the Supreme Court's June decision - which was argued by an affiliate of the Institute for Justice, an Arizona private property rights proponent - could affect the Tempe case. The court ruled that the economic benefits of a private development could outweigh private property rights even if an area isn't blighted.

In order to understand the controversy over the "Takings Clause" of the Fifth Amendment, let's examine the constitutional provision as well as what was said in Justice Stevens majority opinion and Justice O'Connors dissenting opinion...

Fifth Amendment: ... nor shall private property be taken for public use, without just compensation.

Justice Stevens: "We granted certiorari to determine whether a city's decision to take property for the purpose of economic development satisfies the "public use" requirement of the Fifth Amendment..... The disposition of this case therefore turns on the question whether the City's development plan serves a 'public purpose.'"

Justice O'Connor: "Today the Court abandons this long-held, basic limitation on government power..... Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those dissenting citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result."

Note: This case will be heard in Maricopa County Superior Court on Tues., Aug 16. Check back at The Galvin Opinion for developments and updates... The issue is whether or not Tempe, AZ can seize land from 13 property owners in order to hand it over to developers for the purpose of building a $200 million shopping center.

KELO V. NEW LONDON Supreme Court opinion.

Arizona Republic: Eminent domain case heads to court


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