HOAs and "taking" your home for economic development

The Supreme Court continues in its activist reconstruction of the US Constitution with its 5 - 4 decision in Kelo v. City of New London, 04-108. In this eminent domain case, the court ruled that the taking of your home for a public purpose and giving the property over for private economic development is permitted. In reading excerpts from the opinion and dissent, you will see the slippery slope arguments with respect to the reconstruction of the Constitution, and a "where does it all end" concern by the dissenting Justices.

In regard to HOAs, we have already been subject to judicial activism when the courts allowed and refused to challlenge the provisions of these CC&Rs that take your private property rights away. These rulings have allowed HOAs to take your property rights for the benefit of a private, restricted group, the HOA, not for public use, but somehow for the public purpose of increased taxation as a result of alleged property value increases.

Excerpts from The Kelo opinion --

Held: The city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause. Pp. 6–20.

(a) Though the city could not take petitioners’ land simply to confer a private benefit on a particular private party, see, e.g., Midkiff, 467 U.S., at 245, the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted “to benefit a particular class of identifiable individuals,” ibid. Moreover, while the city is not planning to open the condemned land—at least not in its entirety—to use by the general public, this “Court long ago rejected any literal requirement that condemned property be put into use for the . . . public.” Id., at 244. Rather, it has embraced the broader and more natural interpretation of public use as “public purpose.” Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power. Berman, 348 U. S. 26; Midkiff, 467 U. S. 229; Ruckelshaus v. Monsanto Co., 467 U. S. 986. Pp. 6–13.

[the remainder of the decison}

(b) The city’s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue. . . . Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment. P. 13.

(c) . . . Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized. See, e.g., Berman, 348 U. S., at 24. . . . The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan. Berman, 348 U. S., at 26. Pp. 13–20.

268 Conn. 1, 843 A. 2d 500, affirmed.


JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join, dissenting.

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

“An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority . . . . A few instances will suffice to explain what I mean. . . . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner whowill use it in a way that the legislature deems more beneficial to the public—in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property—and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.

The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that “private property [shall not] be taken for public use, without just compensation.” When interpreting theConstitution, we begin with the unremarkable presumption that every word in the document has independentmeaning, “that no word was unnecessarily used, or needlessly added.” Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment’s language to impose two distinct conditions on the exercise of eminent domain: “the taking must be for a ‘public use’ and ‘just compensation’ must be paid to the owner.” Brown v. Legal Foundation of Wash., 538 U. S. 216, 231–232 (2003).

Accordingly I respectfully dissent.

From Justice Thomas' dissent:

The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages “those citizens with disproportionate
influence and power in the political pro- cess, including large corporations and development firms” to victimize the weak. Ante, at 11 (O’CONNOR, J., dissenting).

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View the opinion. View the oral arguments.