Ruling sanctions property seizures
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By MATT OLBERDING / Lincoln Journal Star
Sean Wieting had some sharp criticism for Thursday's U.S. Supreme Court ruling that local governments can seize people's homes and businesses for private development.
"I think it's horrible. I think it's horrible for America and it's horrible for small businesses," said Wieting, who owns Samurai Sam's Teriyaki Grill at 230 N. 17th St.
Wieting came close to experiencing a similar situation earlier this year after hotel developer John Q. Hammons announced a plan to build a 150-room hotel at 17th and Q streets.
The plan would have required several business owners, including Wieting, to move, and the city considered using eminent domain to make that happen. The City Council ultimately denied a request to use the power, and the hotel plan eventually fell through.
Thursday's 5-4 Supreme Court ruling came in a case involving the Connecticut city of New London. The city wanted to use eminent domain to demolish several homes and small businesses for a commercial development the city hoped would bring an economic revival.
At issue was the scope of the Fifth Amendment, which allows governments to take private property through eminent domain if the land is for "public use."
Susette Kelo and several other homeowners in a working-class neighborhood filed suit after city officials announced plans to raze their homes for a riverfront hotel, health club and offices.
Homeowners argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.
Writing for the court's majority, Justice John Paul Stevens said local officials, not federal judges, know best in deciding whether a development project will benefit the community. States are within their rights to pass additional laws restricting condemnations if residents are overly burdened, he said.
"The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including — but by no means limited to —new jobs and increased tax revenue," Stevens wrote in an opinion joined by Justices Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
"It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area," he said.
Justice Sandra Day O'Connor, who has often been a key swing vote on the court, issued a stinging dissent, arguing cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.
"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," she wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."
Wieting agreed with O'Connor's opinion, saying the ruling allows people with "big money" to crowd out the little guy.
Location is everything for a business, Wieting said, and market forces, not government, should determine whether someone gets a location they he or she wants and at what price.
"By this ruling they're taking out the foundation of our capitalist economy," he said.
Lincoln developer Rick Krueger, who is part owner of a private parking lot that was targeted as part of the hotel project, shared Wieting's harsh view of the ruling.
Krueger said it's wrong for governments to take individual property, and he called it a civil rights issue because the Fifth Amendment governs many individual rights.
"Would we give a local government the right to limit our free speech ...?" he asked. "I don't think so."
Mark Whitehead, who owns the U-Stop convenience store in the building at 17th and Q that also houses Samurai Sam's, did not share Wieting's and Krueger's views.
The president of Whitehead Oil said he supports growth in Lincoln and sees some scenarios in which it is OK to use eminent domain, even for private development. However, he said, cities should use the power sparingly and make sure they treat those involved fairly.
"Regardless of the legality of it, they need to exercise caution," he said.
Assistant City Attorney Joel Pedersen said the ruling supported and affirmed the role of local officials in making decisions about land use.
"I think this does reaffirm the idea that where you are coordinating ... land uses under a plan there's support for that," he said.
Pedersen said the ruling would not change the way the city deals with similar situations in the future.
Connecticut residents involved in the lawsuit expressed dismay at the ruling and pledged to keep fighting.
"It's a little shocking to believe you can lose your home in this country," said resident Bill Von Winkle, who said he would refuse to leave his home, even if bulldozers show up. "I won't be going anywhere. Not my house. This is definitely not the last word."
Wieting said it's no longer shocking to him.
After Hammons proposed his hotel and it became clear businesses would have to move to make the plan work, Wieting began to research the issue and said he was surprised to find out how often it occurs.
According to the Institute for Justice, a Washington public interest law firm representing the New London homeowners, more than 10,000 properties were threatened or condemned nationwide in recent years.
"I would hope communities like Lincoln would stand up and say we don't want billionaire hotel developers to kick out small business," Wieting said. "It's just not right."
Reach Matt Olberding at 473-2647 or molberding@journalstar.com. The Associated Press contributed to this story.
To read the ruling
The case is Kelo et. al. v. City of New London, 04-108. See the ruling at http://wid.ap.org/documents/scotus/050623kelo.pdf
How eminent domain works in Nebraska
Eminent domain has been used countless times in Lincoln to build such things as streets, but the city has used it sparingly for redevelopment of blighted areas.
In the late 1970s, Nebraska voters approved a constitutional amendment that allows government to condemn property to remove blight. A blight study must be done before an area can be declared "blighted and substandard" and then become eligible for tax increment financing and condemnation, if necessary.
The city then appraises the property it seeks to redevelop and tries to come up with its fair market value. If negotiations with the owner fail, eminent domain can be used to take the property, with "just compensation."
The process is uniform and governed by state and federal guidelines.
What is eminent domain?
The government's right to take private property for a public use, such as the construction of streets, bridges and railroads, regardless of the owner's willingness to sell. It is granted by the Takings Clause of the Fifth Amendment to the U.S. Constitution.
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