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?

  • Red

    Since she would replace Souter, I don’t think her addition to the court makes much of a difference on eminent domain. Despite the potential for eminent domain to be used for good, I think historically it has been terrible for the vibrant, organically grown communities that represent the best of cities.

  • Eminent domain is bad or good to the extent that it protects sprawl or promotes solutions to sprawl. Leaving it to judges to make such distinctions may be asking too much of them. We need a new eminent domain law that would take aim at sprawl and promote transit while protecting historic and/or sustainable downtowns and neighborhoods — like the ones that were destroyed in the misguided urban renewal projects of the ’60s.

  • The Kelo ruling was a horrible decision that has completely ruined whatever trust the public once had that the government would only ever use eminent domain in a constitutional manner. “Public use” now means “anyone who will pay us more taxes”. “Blight” now means “any piece of land that we think isn’t bringing in enough money”. Property rights are pretty much dead.

  • Here in Florida they passed a law saying the government cannot take private property and give it to a developer. Problem solved. We can still take it for transportation use.

  • In the past, we have gone much too far in the direction of eminent domain, taking functioning neighborhoods and giving the land to big developers.

    Now, we are starting to go to far in the opposite direction. We will need eminent domain to build both a smart grid and transportation projects in the next few decades, and parts of the smart grid may be build by private developers. This is is legitimate use of public domain, which is obviously needed to obtain rights of way.

    Giving the way that the pendulum is swinging now, I am not worried about Sotomayor’s position on eminent domain.

  • I’m disinclined to support any ruling that reinforce the Supreme Court’s position in Kelo. These cases are not so much related to public-use projects, but seem to support megaprojects that erase existing community networks and support large corporations by forcing small business owners out and reducing the grain of the city’s buildings. Worse than that, the Kelo project hasn’t been built. Since the ED rulings don’t require an obligation to build anything, there’s not much recourse other than selling it as forclosure – or declaring it blighted and using ED to seize it.

    Even if the developer or business builds good urban form, the businesses likely to move in are chains or large businesses, so the capital doesn’t stay in the city, only taxed income. I don’t know anything about the situation in Colorado, but that sounds more like a specific opposition movement to light rail rather than a fight over justice.

  • Eminent domain is a constitutional right of the US Gov’t, and it’s a powerful tool, but there are many creative ways that it is used in other countries that our government does not.

    For example in Asia eminent domain is used extensively to radically change land-use patterns in favor of denser urban layouts, but repackaging large numbers of land plots to increase their density in a fair manner. This has resulted in some of the largest cities on earth, from what was previously sprawling rural areas.

    Also in Europe and Latin America we have lots of reverse-eminent domaine, where government roads are for example returned to group community private ownership “woonerfs” by a majority street vote, and gov’t land returned to tribal groups in LA.

  • Eminent Domain is often misused — it was one of Robert Moses’ favorite tools — but sometimes it’s a necessary tool for good purposes. Someday soon, ED might be needed to convert semi-abandoned cul-de-sac sprawl subdivisions into dense, walkable neighborhoods — but that doesn’t happened yet.

    Court decisions are a pretty blunt instrument for fighting misuse of eminent domain, since decisions that limit ED tend to limit good uses, too. It makes more sense to elect people who understand urban development, and use ED wisely, and sparingly.

  • JSD

    The difficulty with eminent domain is judging the long term effects in a given case.

    The general public loved Robert Moses’ projects, thanks to a fawning press and a keen ear to the populist buzz words at the time. The man simply knew his way around, and had the power to get it all done. But there is no denying that Moses was helping to provide for America’s explosive middle class. There was a genuine desire to get out of the city on the part of many families in New York. For millions of people, Moses was aquiring badly used land and making it available for use by the government for highways, or developers for suburbs. For middle class New Yorkers, eminent domain made their goals that possible. In hindsight, it all turned out to be a disaster that we are only beginning to recognize.

    Simply put, it’s extremely difficult for us to judge the “good” projects from the bad ones. Most people here are already biased one way or the other, myself included. Something that sounds like a great idea now can have tremendous long term consequences, as Moses’s use of eminent domain shows.

    It’s a very slippery slope. Regardless of who is in charge.

  • Note that, no matter how much we limit eminent domain for private uses, it will still be available for rights of way for public uses – including Robert Moses’ freeways.

    This supports Mitch’s idea that we need to learn to use eminent domain wisely, rather than using the blunt instrument of legal limits.

  • no matter how much we limit eminent domain for private uses, it will still be available for rights of way for public uses – including Robert Moses’ freeways

    Agreed, but that’s a different fight.

  • Omri

    The good thing about new urbanist developments is that they are supposed to fit within their context. Which means you should never need to exercise eminent domain. Just buy options-to-buy on houses in a neighborhood and when you have options on a contiguous critical mass of land, exercise them and develop, discarding the rest.

    Way cheaper than litigating eminent domain, and no moral taint.

  • Eminent domain is important for expanding rail lines, which is why it would benefit transit if the government could restore confidence that it’s not using it to fatten their campaign contributors.

  • Eminent domain for roads (which includes transit) is constitutionally legitimate, though IMHO the Constitution should have required a greater then market value, to encourage more efficient routings that require less eminent domain. (Just look at the design evolution of the DC freeway system for a good background on this, particularly the infamous 1963-64 North Central Freeway engineering study viewable on line that deviated so sharply from the 1962 JFK Administration’s proposal for a multi-model B&O railroad route).

    Eminent domain for private development though is not.

    Paradoxically, Washington, D.C. favors it for the latter and not the former.

    Strangely (IMHO), there appears to be little questioning as to the unfair disadvantage to many railroads insofar that they are private property and hence have to pay an annual property tax.

  • Gov’ts should first try paying for the land. If that doesn’t work, and they the property is truly being used, for example, for a necessary transit expansion or development into a public park, and there is no other viable alternative then eminent domain should be used with caution. Forcing homeowners with eminent domain to move out for a CVS cannot be justified.


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