Sotomayor’s Eminent Domain Stance: What Does It Mean for Cities?

Supreme Court nominee Sonia Sotomayor is dominating the conversation
in Washington as analysts begin  to dig into her past rulings. And
while she has yet to weigh in on abortion, the judge has spoken loud
and clear on an issue of interest to livable streets advocates: eminent
domain.

2009_04_soniasoto.jpgSupreme Court nominee Sonia Sotomayor (Photo: Gothamist)

As a judge on the Second Circuit Court of Appeals, Sotomayor ruled against property owners in Didden v. Village of Port Chester, a case that centered on plans for a CVS drug store in Westchester County.

Lawyer and blogger Ilya Somin, who urged the Supreme Court to consider the Didden case, has a thorough — if undeniably subjective — summary of the case here.
In an unsigned judgment, Sotomayor’s court ultimately allowed the
Westchester developer to condemn the land belonging to plaintiff Didden
and build a competing pharmacy, despite the questionable public-use
benefit that would result from the taking.

During her confirmation hearing, Sotomayor is likely to get pointed questions on Didden from conservatives who were dismayed when the nation’s highest court ruled in favor of eminent domain rights in 2005’s Kelo v. New London.
But should urbanites, and livable streets advocates in particular, also
be concerned by the nominee’s stance on takings of private property?

In
theory, eminent domain can and should be used for beneficial purposes,
such as transit expansion. Yet a recent push along those lines was halted by the Colorado state legislature last year, and proposed curbs on eminent domain are also imperiling the future of light rail in the Houston area.

On
the flip side, local governments often take private property for new
development projects, claiming that commercial and office buildings
justify a standard of "public use" — as was the case in Kelo and in Brooklyn’s Atlantic Yards case, which was turned away by the Supreme Court last year. Another eminent domain case heard by Sotomayor’s court, Brody v. Village of Port Chester, involved condemnation to build a Stop-‘n-Shop supermarket parking lot.

Sotomayor’s
appeals court handed property owner William Brody a partial victory in
2005, ruling that his due process rights were violated but not
requiring Port Chester to reverse the condemnation. In fact, the Brody opinion (available for download here) states that judges should not weigh in on the merits of taking land for "public use":

[T]he
role of the courts in enforcing the constitutional limitations on
eminent domain is one of patrolling the borders. That which falls
within the boundaries of acceptability is not subject to review.

What do Streetsblog readers think about the Didden and Brody cases, and the role of eminent domain in community development?

  • MrMission

    Eminent domain really should be limited to true public works projects, including things like light rail and high speed rail. Assuming the property owners are fairly compensated (which is not always the case), it is tough to object to that.

    When eminent domain is used to promote private commercial interests, then the process becomes corrupt. As Didden shows, developers and those with political influence will use the process for their own interests. Such tactics can destroy neighborhoods and local businesses all in the name of “redevelopment”. I would really prefer property to be controlled by local property owners rather than outside developers who have the political pull to get the land condemned for them.

  • Timon

    Many of the examples cited in the article (which I understand is cross-posted) do not apply in California, where it is already illegal to condemn housing occupied for 1+ year to transfer to private 3rd parties for economic development. Even before that state constitutional amendment was passed, SF had a policy of not condemning owner-occupied housing for similar purposes.

    Either way, the battle for constitutional rights does not really take place in courts. The 2nd Amendment, for example, is one of the strongest in practice, even though it only appears in court every 70 years or so. Senators fall over themselves introducing amendments to farm bills allowing gun possession on federal strawberry patches. The courts will ratify whatever elite political opinion holds — in the case of eminent domain that consensus is that it is a grand idea to take poor people’s land and hand it over to political elites’ friends. But the actual practice of eminent domain will depend on the people’s self-perception of their rights and interests.

    In the heyday of scientific planning — say 1960 — there was a social belief that large-scale, disinterested bureaucratic planning was possible and desirable. The catastrophic failure of those plans, the sacking and destruction of the urban environment they led to, has eroded support for their methods. Advocates of ambitious planning have much bigger problems than the constitution — their problem is that the people don’t believe them. If we are ever going to convince them, the worst possible thing we can do is kick old ladies out of their houses to build shopping centers and parking lots — the fact that planner types are often seen as justifying or tolerating these abuses is monstrously stupid as we try to build support for the new kinds of cities we need.

  • marcos

    In San Francisco, the planning technocrats as disinterested professionals still rules the day and does so in the service of corrupt political elites and their developer patrons.

    Indeed, the very language of streetsblog has been coopted as justification for this technocratic planning, even though it portends the same kind of displacement as we’d seen in eminent domain.

    Does it really matter whether the government forces someone out with eminent domain pursuant to a plan or if the plan itself contains elements know to displace less powerful political and economic actors?

    -marc

  • tebici

    Just from a design perspective, I personally feel that any project that is not designed with the grain and subtlety to plan around most “hold outs” is probably too big and brutish to be pedestrian friendly and good urbanism. Although there are certain instances where land is condemned because of issues like “unclear title” e.g. land would otherwise sit vacant or in decline for years b/c no one knows who owns it after the owner dies with no will.