Should We Condemn Condemnation?

by Pete Heaven

If the laws of our states require tightening, make the necessary changes and let the cities and counties get back to preserving their economic viability.

The United States Supreme Court recently handed down its decision in Kelo v. City of New London. Hailed as a landmark decision by many, it has produced a firestorm of public and legislative debate. The Court affirmed that condemnation or eminent domain can be used to acquire property for economic development.

Despite the attention, the Kelo case does nothing more than reaffirm what has been the law in Kansas and Missouri for decades. And while it is popular to conjure up notions of displacing families from their homes to accommodate greedy developers, it is difficult to find concrete examples of actual abuses of current laws.

The battle lines are drawn. One camp believes condemnation should be outlawed except when necessary for construction of streets or utilities; the other camp believes that greater safeguards are needed to prevent abuse. Neither appears content with the way the laws have existed for years.

The debate centers around whether economic development serves a “public purpose,” enabling the use of condemnation, in contrast to “public use” or “public ownership,” both of which are easily defined. Condemnation for redevelopment requires sacrifice of individual rights for the greater good and in our society we are called upon daily to make those sacrifices. When writing checks to the IRS, how many of us truly believe that we are getting a one-for-one return of our tax dollar? To the extent we are not, we are making a significant sacrifice for the greater good.

So the issue becomes whether or not we can trust our local officials to thoughtfully, fairly and effectively promote economic development and yet remain sensitive to the rights of property owners.

For example, approximately 105 properties in a Kansas suburb became blighted in the truest sense of the word: crime, streets in disrepair and dilapidated structures. Over 90 of the owners petitioned the city to purchase their properties for redevelopment because they had no hope of realizing their values by other means. A national RFP later, the city located a developer and required relocation allowances and other economic incentives, together with an offer that was at least the fair market value of the property (assuming no blight). All but a handful of the property owners voluntarily agreed to sell, and after numerous public hearings, extensive deliberations and negotiations, the city chose to acquire the hold-out properties by condemnation. None were owner-occupied.

Today, that site is a successful shopping center; the project has provided an opportunity for homeowners to relocate to safer, healthier neighborhoods.

This example obviously will not apply to all projects, nor will the circumstances in other projects be identical; the lesson, however, is that if those circumstances do exist, should we not provide our local governments with the tools to address them? Prohibiting condemnation in all situations may become a classic case of throwing out the baby with the bathwater.

So the mission is simple. If the laws of our states require tightening, make the necessary changes and let the cities and counties get back to preserving their economic viability.

I’m not advocating the use of condemnation nor criticizing those who oppose it. Rather, our legislators and courts need to first determine the extent of the problem before trying to fix it. Otherwise, over reaction will impair local government’s duty to protect its economic health. As the Supreme Court indicated in Kelo, promoting economic development is a long-accepted governmental function and to deny that it serves a public purpose is illogical and not supported by history.

Can we trust our local governments to do what is right on the condemnation issue? Before you answer that question, consider the many aspects of our lives and property with which we have already entrusted them and identify actual examples of condemnation abuses to be addressed.

Pete Heaven is an attorney with Lathrop & Gage. He can be reached by phone at 913.451.5100 or by email at PHeaven@Lathropgage.com.