Eminent domain power challenged

U.S. Supreme Court to consider government's right to take private property

The U.S. Supreme Court is weighing a case that could rein in the powers of Kansas government to take private property.

And Lois Marriott, one of many people who lost a Wyandotte County home so a racetrack could be built, is in favor of that happening.

“There’s plenty of land around,” said Marriott, one of 165 property owners who got the boot in the late 1990s when the Kansas Speedway was built. “You don’t have to take people’s homes.”

Kansas is one of a handful of states that uses the power of eminent domain — the taking of public property by government — for economic development purposes.

In the case before the Supreme Court, Susette Kelo and several other homeowners in a working-class neighborhood in New London, Conn., filed a lawsuit after city officials announced plans to bulldoze their homes to clear the way for a riverfront hotel, health club and offices. The residents refused to budge, arguing it was an unjustified taking of their property.

For ‘public use’

The neighborhood included Victorian-era houses and small businesses that in some instances had been owned by several generations of families. New London, a town of fewer than 26,000 people, had been losing residents and jobs when it planned the land takeover, city leaders said.

The Fifth Amendment allows governments to take private property for “public use.” The seven states that allow condemnations for private business development alone are Kansas, Connecticut, Maryland, Michigan, Minnesota, New York and North Dakota.

The appeal turns on whether “public use” involves seizures not to revitalize slums or build new roads or schools, but to raze unblighted homes and businesses to bring in more money for a town.

Nationwide, more than 10,000 properties were threatened or condemned between 1998 and 2002, according to the Institute for Justice, a nonprofit law firm in Washington that litigates civil liberties cases.

The condemnation of homes in Wyandotte County for the Kansas Speedway development was one of the more controversial uses of eminent domain power in Kansas.

Reinvigorated economy

“Eminent domain was a very bitter pill to swallow for everybody, including us,” said Don Denny, a Wyandotte County spokesman. “But it was a necessity to get this project moving forward that has transformed the community.”

County officials say the speedway and “Village West” — the adjoining 400-acre development that includes Cabela’s and Nebraska Furniture Mart — have reinvigorated the local economy, created thousands of new jobs and poured millions of new tax dollars into local coffers.

They say that never could have happened if Wyandotte County hadn’t had the power to seize private properties to make way for projects that produce more tax revenue.

Officials in Kansas point to the speedway and a new Target Distribution Center in Topeka as successful examples of the use of eminent domain for economic development.

“They bring large numbers of jobs and tax dollars to the state,” said Kim Gulley, a spokeswoman for the League of Kansas Municipalities. League members are expected to approve their support for eminent domain at a statewide meeting Tuesday.

Critics, however, say the government powers trample on private property rights. A Kansas Senate bill to limit those powers was defeated in March.

“Our founding fathers understood and stated that our individual freedom rests with protecting individual property rights,” Sen. Robert Tyson, R-Parker, said at the time.

Power of last resort

An interim legislative committee will take a closer look at the issue during a meeting Wednesday. But committee chairman Rep. Mike O’Neal, a Hutchinson Republican, said the Supreme Court’s decision to hear a case on the issue makes him cautious.

“I’m an attorney,” he said. “If something’s pending before the Supreme Court, I like to wait so we can do it right the first time.”

No mater what the high court or the Legislature decides, though, it’s too late for Marriott to get her home back.

“We’d only lived there two, two-and-a-half years. Some people had lived there a long time,” she said. “What could you do? A lot of people got lawyers, they fought it and all. It was a terrible year.”

Despite that experience, Marriott says she is not opposed to some uses of eminent domain.

“For highways they should (have the power) — but just to put a racetrack in or to put a Costco in, I don’t think that should be,” she said.

Denny said eminent domain should be a power of last resort for local governments.

“You need to analyze a project on a case-by-case basis — what’s the bottom line?” he said. “Is the community going to benefit, or is it just going to be a business?”

And he expressed sympathy for the property owners pushed out to build the speedway.

“They sustained some negativity from that,” Denny said. “Hopefully they’ve regrouped their lives.”

— Journal-World wire services contributed to this report.