The Post-Kelo World
By podcasts@redstate.com (Redstate Network) on Law
It's a very bleak world indeed (read on):
"The city of Burien, Wash., recently decided that a piece of property owned by the seven Strobel sisters that had long housed a popular diner-style restaurant was not upscale enough for the city's ambitious "Town Square" development, which will feature condos, shops, restaurants and offices. Rather than condemn the property for a private developer and risk a lawsuit, Burien came up with a plan--it would put a road through the property, and the city manager told his staff to "make damn sure" it did. When a subsequent survey revealed that the road would not affect the building itself, but only sideswipe a small corner of the property, the staff developed yet another site plan that put the road directly through the building. A trial court concluded that the city's actions might be "oppressive" and "an abuse of power"--but allowed the condemnation anyway. The Washington Court of Appeals affirmed, and the Washington Supreme Court refused to hear the case.
Welcome to the post-Kelo world. The U.S. Supreme Court's 2005 decision made clear that the federal courts would not stop local governments across the country from condemning private property for economic development. While the court noted that states were free to provide greater protections for homes and small businesses if they chose, Washington state stands as evidence that a strong state constitution means little if the courts do not enforce it and local governments disregard it.
When Kelo came out, local governments and their lobbyists eagerly explained that ours was not a "Kelo state," and that the legislative efforts to restrict eminent-domain abuse in other states were unnecessary here. The Washington Constitution explicitly provides that "private property shall not be taken for private use" (except in very limited circumstances). "It can't happen here" became the oft-repeated message used to placate home and small business owners seeking legislative protections for their property.
When it comes to governmental abuse, "it can't happen here" really means "it is happening right now." Local governments are busily using mechanisms in state law to threaten neighborhoods and abuse property owners, and the state Supreme Court has repeatedly let them get away with it.
For all of the coverage that the Kelo decision has received in the popular media, it remains, amazingly, a sleeper issue of sorts. The simple fact is that not enough people among the voting public know about the Kelo decision and its consequences.
Maybe it is time that changed. And wouldn't it be nice if Republicans--in an effort to recapture their small-government and at least quasi-libertarian roots in the wake of the recent midterm elections--led the way in rolling back the kind of eminent domain abuse that Kelo has come to symbolize? As we recall, thus far, the pushback against Kelo on the legislative front has been quite disappointing. Intensifying that pushback and engaging the electorate is certainly good politics. Even better, it would lead to good policy as well. redstate.com |
