Vol. 20 No. 9 (September, 2010) pp.513-516

EVICTED! PROPERTY RIGHTS AND EMINENT DOMAIN IN AMERICA, by David Schultz. Santa Barbara, CA: ABC-CLIO, 2009. 233pp. Hardcover. $44.95/£31.95. ISBN: 9780313353444.  E-book.  (contact publisher)  ISBN: 9780313353451.

Reviewed by Bill Wilkerson, Department of Political Science, SUNY College at Oneonta. Email: wilkerwr [at] oneonta.edu.

Much has been written about the use, and argued abuse, of eminent domain in the United States in the wake of the Supreme Court's 2005 KELO v. NEW LONDON, CONNECTICUT. In KELO, the Court upheld the use of eminent domain to acquire 15 properties and turn them over to a private developer as part of a large-scale multi-use development that included a large corporate research facility. The property owners lost in court, but the Institute for Justice, the libertarian public interest law firm who sponsored and promoted the case managed to turn the dispute into a cause celebre. Editorial writers across the country wrote about the decision in scathing terms. Susette Kelo – the lead plaintiff who along with her little pink house became the symbol of eminent domain abuse – emerged as a minor celebrity and the central actor in a breathless book length treatment of the dispute (Benedict 2009). In the months and years since the issue of economic development takings has remained in the news and over 40 states have revised state laws related to eminent domain. Although the furor has quieted somewhat, the use of eminent domain remains a controversial topic in American politics.

This debate did not emerge out of thin air. Rather conservatives spent a quarter century arguing that the takings clause of the Fifth Amendment. Books such as Richard Epstein’s TAKINGS and Ellen Frankel Paul’s PROPERTY RIGHTS AND EMINENT DOMAIN made a forceful case for stronger constitutional protection of property rights through the takings clause. A series of favorable US Supreme Court decisions beginning in the late-1980s such as NOLLAN v. CALIFORNIA COASTAL COMMISSION and DOLAN v. TIGARD along with WAYNE COUNTY v. HATHCOCK, a prominent 2004 Michigan Supreme Court ruling, encouraged conservative court watchers to believe that KELO would provide a major constitutional breakthrough.

Amidst all of this, in EVICTED! PROPERTY RIGHTS AND EMINENT DOMAIN IN AMERICA David Schultz attempts to broaden the focus beyond the drama of the KELO dispute and to provide an overview of eminent domain for "general readers, property owners, and local government officials" (jacket cover) A political scientist, also trained as a lawyer with experience as a city planner, Schultz is able to write authoritatively and examine eminent domain from a variety of perspectives. After a brief introduction, chapters 2 through 7 provide a series of primers on important issues underlying the current eminent domain debate. Schultz explains complex concepts, sometimes in great detail, and demystifies jargon as he [*514] works his way though these subjects in generally engaging prose.

Chapters 2 and 3 focus on property rights generally. Chapter 2 examines the concept of property, noting the broadness of the concept in law and how definitions of property have differed across time and space. Schultz examines prominent thinkers – Hume, Rousseau, and especially Locke – whose competing ideas influenced what was to become the American notion of property. Property is a broad idea, and with it come rights and privileges, but importantly, examining early American law these rights have limits and have always been limited. For example, harmful uses of property can be prohibited. In addition these limits have changed over time as technology has changed and communities have grown. Chapter 3 looks at the flip side of property rights: government’s ability to regulate, to tax, and to take possession of property through eminent domain. He briefly explains the constitutional underpinning of Congress’ regulatory powers, the police powers of the states, and the power to tax by all levels of government. As property rights predate the Republic, so too does the eminent domain power. In fact, limitations on the use of eminent domain, especially the requirement of public use and compensation for the property taken did not fully emerge until the 18th century.

Chapters 4, 5, and 7 concern federal, and to a lesser extent, state constitutional law in the area of eminent domain throughout the nation's history. In these chapters Schultz examines the court's answers to four questions: 1) what property does the takings clause refer to? 2) what is a taking? 3) what is "public use"? and 4) what is "just compensation"? While detailed answers to each of these answers is beyond the scope of this review, Schultz argues that government has long had broad eminent domain power: it can acquire any property, the government may regulate property extensively without being required to pay compensation, and in most instances the only real justiciable issue is how much the property is worth. In answering the third question, what is public use? – the subject of KELO – Schultz notes two definitions have been put forward. The narrow definition urges that public use means "'used by the public," stipulating that the property must actually be used in a way that the public enjoys it" (p.82). Typical examples of such public enjoyment include schools, roads, and parks. In contrast, a second broader meaning allows that public use means "for the public welfare" or "for the public good," a definition that includes a wider range of activities whose primary benefit may go to the private parties as long as the community as a whole benefits. Economic development is an example. Schultz argues that the latter, broader definition has long dominated:

"While there may be an element of truth that the meaning has expanded over time, it is also clear that even back in the nineteenth century that the use of eminent domain to take property from one private owner and dive it to another for the purposes of economic development was considered a permissible public use. One clear example of this was with the railroads" (p.83).

KELO, then, was not a legal surprise. It fit into the established pattern of Supreme Court decisions for well over a century. More generally, broad [*515] regulatory and eminent domain powers have not emerged recently as conservatives argue, rather these powers are part of the long established constitutional regime.

Chapter 6 entitled "The ABCs of Eminent Domain" provides a detailed explanation of how eminent domain proceeds in practice. Methods of taking property, the process of moving toward condemnation, and how properties are valued are each explained. In particular, Schultz focuses on the importance of comprehensive planning and project planning by government agencies in such actions. Such planning protects government agencies from claims of arbitrariness and make clear to property owners what kinds of uses are allowed.

In a final two chapters, Schultz examines the claims of eminent domain abuse and solutions that might mitigate potential abuses in the future. Schultz discounts the scope of the eminent domain problem claimed by the Institute for Justice and others, but acknowledges that potential for abuse continues to exist despite revisions to eminent domain laws passed by most states. Eminent domain disproportionately impacts the poor and people of color, both property owners and tenants, in support of corporate interests, or what Schultz refers to as "corporate thuggery" (p.188). How to fix the problem? At the large structural level, Schultz notes reordering the political process to limit the power of these corporate interests such as campaign finance reform, legislative redistricting, and tax policy. Short of this, Schultz points out that most state reform efforts may turn out to be largely counterproductive, making litigation more likely, allowing the same overdogs to win, and undermining democracy at the local level. However the solutions that Schultz proposes – better, more inclusive comprehensive planning and more thorough environmental impact statements – are likely to be equally unsuccessful. While open, inclusive, broad-scale planning processes have been shown to work, and well organized community groups can make a difference in comprehensive planning and in development planning, the same corporate and development interests tend to dominate this arena just as they benefit by the use of eminent domain. For example, a 2008 survey of zoning board members found that occupations are disproportionately in the development business (Anderson, Brees and Reninger). Many communities see comprehensive planning as a legal mandate that must be met rather than an opportunity for real planning. And all too often even communities with clear plans cave in to well financed developers who threaten litigation if authorities stand in their way. If Schultz is right about what reforms are needed, the odds of success in limiting eminent domain abuse are long.

In closing, Schultz provides a broad historical, philosophical, legal, and policy overview of the issue of eminent domain. This treatment is accessible to a general audience, including undergraduates, and will be of use to its intended audience as well as academics looking to quickly get up to speed on the foundational and current issues surrounding eminent domain post-Kelo. [*516]

REFERENCES:

Anderson, Jerry L. Aaron E. Brees, and Emily C. Reninger. 2008. “A Study of American Zoning Board Composition and Public Attitudes Toward Zoning Issues.” URBAN LAWYER 40:689-745.

Benedict , Jeff. 2009. LITTLE PINK HOUSE. New York: Grand Central Publishing.

Epstein, Richard. 1985. TAKINGS: PRIVATE PROPOERTY AND THE POWER OF EMINENT DOMAIN. Cambridge: Harvard University Press.

Paul, Ellen Frankel. 1988. PROPERTY RIGHTS AND EMINENT DOMAIN. New Brunswick, NJ: Transaction Publishers.

CASE REFERENCES:

COUNTY OF WAYNE v. HATHCOCK, 471 Mich. 445 (2004).

DOLAN v. TIGARD, 512 U.S. 374 (1994).

KELO v. NEW LONDON, CONNECTICUT, 545 U.S. 469 (2005).

NOLLAN v. CALIFORNIA COASTAL COMMISSION, 483 U.S. 825 (1987).

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© Copyright 2010 by the author, Bill Wilkerson.