Give Peace . . . I Mean Kelo a Chance: A Conservative Defense of a Conservative Decision

The following article is the winning entry in the 2006 Legal Writing Contest for the Real Property Section of the Virginia State Bar. While entertaining and thought provoking, it certainly invites the opportunity for comment from you, the reader, as to the future of local government eminent domain powers in the Commonwealth. As stated in the inside jacket of this publication, and even the author's first footnote, the views expressed in this article are solely those of the author; however, perhaps this article will inspire some commentary from its readership. You are encouraged to share your views on the subject matter with letters to the editors.

- Lawrence Schonberger, Chair, Legal Writing Contest Committee

GIVE PEACE . . . I MEAN KELO A CHANCE:
A CONSERVATIVE DEFENSE OF A CONSERVATIVE DECISION

by Alan Smith^*

This piece was originally conceived as a eulogy for local government condemnation authority and a plea for legislative restraint in the future. However, the General Assembly was miraculously unable to come to an agreement this session on eminent domain "reform." Unlike the current transportation "crisis," this failure to compromise was quite likely the best outcome the Commonwealth could have hoped for.1 The members of the General Assembly and the citizenry of the Commonwealth would do well to use this opportunity to examine the decision and its implications and engage in a real, robust debate regarding the role local governments should play in the future. I only hope that if and when the General Assembly does finally act, localities, as we currently know them, will still exist. As we near the one-year anniversary of the opinion formally known as "Kelo," it seems appropriate to revisit the decision, its effect on the nation and Virginia, and offer a defense for this "infamous" decision.2

THE LATEST REDHEADED STEPCHILD
OF SUPREME COURT JURISPRUDENCE

Few Supreme Court cases in history, let alone recent memory, have been as vilified, despised, or just plain disliked as much as Kelo.3 The hatred that Justice Steven's opinion has engendered, on both the political right and left, is so visceral as to be palpable.4 Kelo is likely to be (meaning "almost certainly is") the only United States Supreme Court case, other than Roe v. Wade, that the average American can actually name. (This assumption, of course, excludes attorneys who are rarely accused of being average, or even American, for that matter.) People who did not know that there was a court system outside of traffic court and "Judge Judy," let alone a "Supreme" Court, are suddenly waxing poetic about "government takings" and the sanctity of the home as "a man's castle."

The debate (or lack thereof in some cases) over Kelo has raged back and forth across the country. The reaction has ranged from reserved judgment and careful study, to knee jerk reaction and personal retribution.5 The House of Representatives waited only a matter of days before expressing its "grave disapproval" of the Supreme Court's decision by an astounding 365 to 33 vote.6 (The House can rarely agree on anything to such a degree.) However, the fact that it involved criticizing the Supreme Court may have had something to do with it; for those versed in zoning-speak, it might be called "a thing decided."7

The states have also joined the fray. Some have sought to completely (or very nearly) eradicate local government's ability to condemn property for any purpose.8 The Virginia General Assembly entertained a whole host of bills this term, from both sides of the aisle; some were constructive, others less so.9 While some of the proposed bills sought to merely "tweak" the law, others used the proverbial sledgehammer to swat the fly.10

VIRGINIA IS FOR (DILLON) LOVERS

I spent a great deal of time over the past year helping to prepare my boss for various land use panels and presentations around the Commonwealth. Unsurprisingly, the first topic (and in some cases the one and only topic) was none other than everyone's new best friend . . . Kelo. And after painstaking study, careful reading, and thoughtful analysis, I have a come to a startling conclusion: the Commonwealth of Virginia is not located in the state of Connecticut.

Virginia has not, and probably never will, at least not now, give localities the type of broad authority the City of New London possessed and exercised to condemn Mrs. Kelo's property. Virginia localities certainly possess a great deal of eminent domain authority, which may be exercised for various reasons.11 But Virginia, for better or worse, is a Dillon Rule state.12 Localities cannot exercise any greater authority than the General Assembly sees fit to grant them.13 Often, that is not very much, although I am quite certain that more than a few members of the General Assembly would beg to differ.

Localities, believe it or not, do not have to use the powers they may actually possess. While consistency is important in analyzing the reasonableness of local government actions, there is no reason that localities must use their condemnation power in every situation. Not only does it defy common sense to expect condemnation to be the answer to every public need or desire; the indiscriminate use of condemnation power would be electoral suicide in almost every Virginia jurisdiction.14

PLEASE DON'T SHOOT THE MESSENGER (AT LEAST NOT YET)

Kelo, unlike other infamous Supreme Court decisions, was not conjured out of thin air.15 Whether you agree with the majority or not, Kelo follows the natural progression of the Supreme Court's jurisprudence in Berman v. Parker and Hawaii Housing Authority v. Midkiff.16 Kelo has so fixated the American legal arena that nearly everyone from the mainstream media (unsurprising) to politicians (equally unsurprising) and academics have almost completely ignored two other land use decisions from the same term, San Remo Hotel v. City & County of San Francisco and Lingle v. Chevron.17 These decisions may have as much of an impact as Kelo in the years to come. The only problem is that these cases involve more legally complex issues (i.e., "boring"), and the decisions do not lend themselves to good sound bites or campaign slogans. ("Don't let your rights be preempted, make an English reservation" and "Only YOU can prevent regulatory takings" just don't have quite that same ring.)

While Kelo is certainly not a libertarian decision, it is, at least in some respects, a conservative one.18 Kelo defers to the decisions of state and local governments on quintessentially state and local issues. The federal judiciary will not, and should not, involve itself in second-guessing the economic policy of local governments, no matter how much that interference is desired (for once by conservatives). It is wholly consistent with conservative notions of federalism and the devolution of power, allowing those legislators who are duly elected by the citizens most directly affected by the "taking" to make these very difficult decisions. A broad-based ban unnecessarily impugns the motives of local government officials out of hand and discounts their ability to weigh the equities involved in these types of cases.

According to some, including well-regarded conservative sources, the greatest threat to private property is not the taking itself, but the property valuation process.19 Compensation, in most states, is the real problem and the area most in need of reform. Many states do not provide compensation for the many undisputed inconveniences that condemnation entails. Moving expenses, cost of obtaining a new residence, lost work hours, price differentials, and intangibles such as special attachment to a home are all relevant issues, which are almost invariably inadequately addressed during the valuation portion of the condemnation proceedings, or not at all.20

FOR THOSE WHO HAVE SOLDIERED ON THIS FAR

And no, I am not advocating that every community run out and begin condemning every little old lady's home or the church on the corner to appease the Costco gods at whose feet suburbanites (and their governing bodies) have been known to worship. As every opinion in the decision indicated, there is certainly room for abuse, but that abuse is not protected.21 As Justice Kennedy indicated, while the courts will give deference to the locality's good faith arguments for the necessity of the taking and its expected benefits, if the taking reeks of malfeasance, all bets are off.22 But local governments must be given some benefit of the doubt. Any standard that would force localities to prove that the expected benefit would definitely be realized would be "fatal in fact" to almost every condemnation for economic development.23

I do not advocate, in the immortal words of William F. Buckley, that we "stand athwart history, yelling stop;" I merely urge the General Assembly to undertake a careful examination of existing law and the reasonable alternatives, and encourage a robust debate about the future of this critical local government power. The General Assembly should reevaluate the procedures already in place, promote reasonable and consistent use of the existing local powers, and work to ensure fair and just compensation. Hopefully next term the Assembly will again decide to leave well enough alone or at least reject the emotionally charged rhetoric and enact reasonable, pragmatic changes to localities' existing condemnation authority that strikes the right balance between community needs and private property protections.24

* J.D. 2006, T.C. Williams School of Law, University of Richmond. This article is dedicated to Sharon Pandak for her guidance, wisdom, and friendship. The author thanks the law firm of Sands Anderson Marks & Miller P.C. for its generous support. The opinions expressed in this piece are those of the author alone, and he understands that he may soon have his very own special taxing district all to himself.

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Endnotes:

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(1) Alan Cooper, Eminent domain, indigent defense see little change in Virginia legislative session, VIRGINIA LAWYER'S WEEKLY (Mar. 20, 2006). Reform failed in conference committee when the House and Senate could not reach a compromise between the House bill, largely based on Del. Joannou's proposal, and the Senate bill, largely based on the Virginia Housing Commission's recommendations. Early indications are that "reform" bills will be proposed during the next session. (return)

(2) I must begin with a mea culpa that I have spent the entirety of my short legal career on the locality side of local government work. (return)

(3) Kelo v. City of New London, 125 S. Ct. 2655 (2005). The Court held that government takings for economic development purposes may be constitutional, in certain cases, and provided certain conditions are met (e.g., after successive public hearings and when part of an "integrated development plan"). The Court emphasized that states are always free to provide greater private property protections and state courts are free to interpret "public use" more narrowly than the Supreme Court. (return)

(4) Justice Stevens authored the opinion for the Court, a five to four split. Justice Kennedy joined in the judgment and authored a concurring opinion. Justices O'Connor and Thomas wrote impassioned and well-reasoned dissents. (return)

(5) Matt Labash, Evicting David Souter, THE WEEKLY STANDARD, Feb. 13, 2006. (return)

(6) House Resolution (H. Res.) 340, available at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:HE00340:@@@L&summ2=m& (2005) (Virginia Representatives Eric Cantor, Thelma Drake, Virgil Goode and Frank Wolf co-sponsored. Representatives Tom Davis, Jo Ann Davis, Randy Forbes and Bob Goodlatte all voted in favor of the Resolution.). (return)

(7) There are numerous bills still pending in Congress. None have passed the Senate and only a single bill has passed the House. A lack of recent movement in this legislation may indicate that interest is waning and the momentum has stalled. Proposed legislation includes H.R. 4128 (James Sensenbrenner (R-WI)), H.R. 3405 (Henry Bonilla (R-TX)), H.R. 3315 (Maxine Waters (D-CA)), S. 1704 (Byron Dorgan (D-N.D.)), S.1883 (Orrin Hatch (R-UT)), and S. 1313 (John Cornyn (R-TX)). (return)

(8) Comprehensive lists of the numerous proposals made in the different states and those actually enacted are available at www.castlecoalition.org/legislation/states/index.asp (The Castle Coalition is an outgrowth of the Institute for Justice, which litigated the case on behalf of the Mrs. Kelo and the other landowners) and www.ncsl.org/programs/natres/eminentdomainleg06.hm (the National Conference of State Legislatures). Legislation has been proposed in nearly every state and more than a dozen have enacted some type of reform (e.g., Indiana, Delaware, South Dakota, and Utah) or initiated some type of reform process (e.g., Michigan voters will vote on a constitutional amendment this November that would prohibit takings for economic development). See Elizabeth Mehren, States Acting to Protect Private Property, THE NATION, at A1 (Apr. 16, 2006); David Barron, Eminent Domain Is Dead; Long Live Eminent Domain, THE BOSTON GLOBE, at D1 (Apr. 16, 2006). (return)

(9) Well over forty bills addressing eminent domain were filed during this past General Assembly session. The following is only a partial list of those proposed: H.B. 94 (Del. Suit), H.B. 190 (Del. R. Marshall), H.B. 408 (Del. R. Marshall), H.B. 956 (Del. Joannou), S.B. 336 (Sen. Obenshain), S.B. 394 (Sen. Stolle), S.B. 631 (Sen. Cuccinelli). (return)

(10) Compare Del. Terrie Suit's H.B. 94 with Sen. Ken Cuccinelli's S.B. 631. (return)

(11) Some of the expressly authorized purposes include: public use generally (VA. CODE ANN. § 15.2-1800); construction of water supply dams (id. § 15.-2134); educational purposes (id. § 22.1-126.1); libraries (id. § 42.1-33); jails (id. §§ 53.1-106, 71.1, 95.7); sewage disposal (id. § 15.2-2114); secondary road construction (id. § 33.1-75.3); storm-water control facilities (id. § 15.2-2114). See generally Virginia County Supervisors' Manual 63-74 (7th ed. 2006). (return)

(12) Norton v. City of Danville, 268 Va. 402, 408, 602 S.E.2d 126, 130 (2004) (stating that Virginia localities only exercise "those powers expressly granted by the General Assembly, those necessarily and fairly implied therefrom, and those that are essential and indispensable"). See generally Jesse Richardson, Jr., Sprawl in Virginia: Is Dillon the Villian?, VIRGINIA ISSUES & ANSWERS (Spring 2000). (return)

(13) The following are some of the more important local condemnation cases and are provided for general reference purposes. See generally Ottofaro v. City of Hampton, 265 Va. 26, 574 S.E.2d 235 (2003); City of Charlottesville v. DeHaan, 228 Va. 578, 323 S.E.2d 131 (1984); Phillips v. Foster, 215 Va. 543, 211 S.E.2d 93 (1975); Bristol Redevelopment & Housing Auth. v. Denton, 198 Va. 171, 93 S.E.2d 288 (1956); Hunter v. Norfolk Redevelopment & Housing Auth., 195 Va. 326, 78 S.E.2d 893 (1953). (return)

(14) An example of abuse is Lakewood, Ohio where the City attempted to take numerous homes using a definition of "blight" that was so broad (e.g., lack of air conditioning or two-car garage) it would have included much of the community including the mayor's home. The plan was defeated, as were the mayor and several council members, during the next election. See Lakewood unlikely to defend label; Mayor doubts city will oppose vote, PLAIN DEALER (Cleveland, Ohio), Jan. 27, 2004, at B3; V. David Sartin, Lakewood tallies 'whys' in the wake of primary, PLAIN DEALER (Cleveland, Ohio), Oct. 2, 2003, at B1. (return)

(15) You will not find a single "penumbra," "emanation," or "sweet mystery of life" anywhere in the majority opinion in Kelo. See Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) ("'At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'") (emphasis provided); Roe v. Wade, 410 U.S. 113, 152 (1973) ("In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right [or zones of personal privacy] in the First Amendment; in the Fourth and Fifth Amendments; in the penumbras of the Bill of Rights") (internal citations omitted) (emphasis provided); Griswold v. Connecticut, 381 U.S. 479, 514 (1965) ("The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.") (internal citations omitted) (emphasis provided). (return)

(16) Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1988) (holding that state takings to break up staggering housing oligopoly was a valid "public use" under the Fifth Amendment); Berman v. Parker, 348 U.S. 26 (1984) (holding that a redevelopment project intended to eliminate blight in Washington, D.C. when the project included non-blighted property was a valid "public use" under the Fifth Amendment). (return)

(17) San Remo Hotel v. City & County of San Francisco, 125 S. Ct. 2491 (2005); Lingle v. Chevron, 544 U.S. 528 (2005). I strongly urge all interested persons to read these two very important cases. While I make no claim to be an expert on takings, these opinions may yet have a profound effect on land use law. (return)

(18) This may be the source of some mistaken views about Kelo. Because conservatives and libertarians have journeyed together for so long in the legal wilderness, and have so often seen eye-to-eye (e.g., on economic liberties and federalism cases), many have forgotten that the two groups may still strongly disagree (e.g., homosexual marriage, abortion, and drug legalization). This is not to say that they are mutually exclusive, and there is certainly some overlap in their composition. Nothing herein should be read as belittling or disparaging those with more libertarian views of property rights. (return)

(19) See Testimony of Prof. Thomas Merrill, Charles Keller Beekman Professor, Columbia Law School, September 19, 2005, available at http://judiciary.senate.gov/testimony.cfm?id=1612&wit_id=4661 (last visited Apr. 21, 2006); see also Restraining Eminent Domain Through Just Compensation: Kelo v. City of New London, 29 HARV. J. L & PUB. POL. 759, 764-68 (2006). Professor Thomas Merrill is (at least) affiliated with the Federalist Society (www.fed-soc.org/), and the HARVARD JOURNAL OF LAW & PUBLIC POLICY is the "Official Journal" of the Federalist Society (www.law.harvard.edu/students/orgs/jlpp/). (return)

(20) In Virginia a locality must make the owner(s) a bona fide but ineffectual offer (i.e., good faith and unsuccessful) for the property before beginning condemnation proceedings. During the proceedings a group of commissioners (similar to typical jury) determines the property's value after hearing evidence from all parties regarding the value. (return)

(21) Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002) (involving the City's redevelopment agency taking property (that the Church had spent over a year assembling) for a retail center after the City delayed the Church's permit application, which gave the City the time and opportunity for the taking); 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F. Supp. 2d 1123 (C.D. Cal. 2001) (involving the City's redevelopment agency taking homes and businesses simply to keep Costco within the City limits and maintain the tax base). (return)

(22) Kelo, 125 S. Ct. at 2672. (return)

(23) This point can certainly raise a circular argument: because takings for economic development purposes cannot meet this standard, they should not be allowed at all. This position in turn begs the response that this is not the appropriate standard, and so on and so forth. (return)

(24) "Hopefully, there'll be some dialogue between now and the next session of the General Assembly" because "[i]t's too important legislation to write on the fly." (John G. "Chip" Dicks III, former delegate and current lobbyist for the Virginia Association of Realtors). Alan Cooper, Eminent domain, indigent defense see little change in Virginia legislative session, 20 VIRGINIA LAWYER'S WEEKLY, at 2 (Mar. 20, 2006). (return)

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