NCPA - National Center for Policy Analysis


January 11, 2007

Regardless of strong constitutional protections for private property, in the post-Kelo world, governments and courts now view eminent domain as an area where few if any restrictions exist, says William R. Maurer, director of the Institute for Justice, Washington chapter. 


  • The city of Burien, Wash., recently put a road through private property it decided was not upscale enough for the city's ambitious "Town Square" development.
  • The Washington Supreme Court allowed the Seattle Monorail to permanently condemn a piece of property it needed only temporarily for a construction staging area.

What's more, while Kelo gave the motivation, the tools available for trampling constitutional rights have been in place for some time, says Maurer:

  • Since the Kelo decision, municipalities have rediscovered Washington's Community Renewal Act, the local incarnation of statutes used to destroy working-class (and often minority) neighborhoods across the country in the 1950s and '60s.
  • The government, under the act, can condemn an entire neighborhood and transfer the property to a private developer so long as the government finds that at least some property in the neighborhood is "blighted."
  • Unfortunately, this statute is so broadly worded that practically every neighborhood in Washington meets the definition of "blight" -- things like "obsolete platting" and "diversity of ownership" constitute "blight."

Unfortunately, the problem is not limited to Washington, says Maurer.  In one appalling example:

  • The U.S. Court of Appeals for the Second Circuit let stand a condemnation in which a developer in the Port Chester, N.Y., demanded that a private property owner give him either $800,000 or a 50 percent share in the property, which was slated to be a CVS pharmacy.
  • If refused, the developer threatened to have the village condemn it; the next day, the village condemned the property to hand it over to the developer to construct a Walgreens.

Source: William R. Maurer, "Let There Be 'Blight,'" Wall Street Journal, January 11, 2007.

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