by Virginia McCullough


The United States Supreme Court issued a ruling on June 23, 2005 that declared war on every legitimate home and land owner in this great country.  Private property owners rights were stripped away by Justice J. Stevens who delivered the opinion of the court joined by Justices Kennedy, Souter, Ginsburg and Breyer.  The 5 to 4 decision is the case of Kelo et al. v. City of New London et al.  Justice Sandra Day O'Connor filed a dissenting opinion joined by Justices Rehnquist, Scalia and Thomas.  The closely split court and the odd alliances of the Justices reflect the very divisive nature of this "taking" issue.  In this horrific decision the nation's highest court ruled that local governments may seize people's homes and businesses and turn them over to private development without the owner's consent.

The specific case of Kelo et al. v. City of New London et al. began when decades of economic decline led a Connecticut state agency to designate the City a "distressed municipality" in 1990.  The distressed economic condition of the city led by an unemployment rate nearly double that of the State prompted both state and local officials to target New London, and particularly its Fort Trumbull area, for economic revitalization.  The New London Development Corporation (NLDC), a private nonprofit entity, was reactivated.  In January 1998, the State authorized a $5.35 million bond issue to support the NLDC's planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park.  Following this enormous outlay of public funds, one month later in February 1998 the world's largest pharmaceutical company Pfizer Inc. announced it would build a $300 million research facility on a site immediately adjacent to Fort Trumbull.

Pfizer, Inc's slogan is "We dedicate ourselves to humanity's quest for longer, healthier, happier lives through innovation in pharmaceutical, consumer and animal health products."  This giant company now stands to gain from the investment of $15.35 million in public bonds that will assist it in securing the land to build a minimum 90,000 square foot research center that, according to the public relations generated by the City fathers, will act as a catalyst to draw other businesses to the new business park.  The development plan encompasses seven parcels that will combine a variety of public and private use which attempts to justify the taking of private homes and property from homeowners unwilling to sell including Susette Kelo who is the primary petitioner in the Supreme Court decision that has greatly expanded the government's power to seize private property.

The public response to this abhorrent Supreme Court decision has been unparalleled.

One man's opinion appeared in the editorial section of The Valley Times. Scott Morgan, a resident of Walnut Creek wrote the following commentary under the title Eminent domain, the American Way.

The recent ruling by the Supreme Court detailed in The Times that private property (homes and businesses) may be taken from the owners against their will, for either public or private economic development should come as no surprise.

This has been the American way since the colonization of North America. When the settlers wanted some land that the Native Americans had, they just took it under the term "expropriation."

The only difference was that there was no real attempt to offer fair compensation.  The course of our economic growth has been built upon the right of our government to take property so that the "greater good" of the public could be served.

For example, when the Trans-Continental railroad was being built in the 1800's, a large portion of the land was taken under the auspices of eminent domain.

What was changed by this recent ruling is that private property may be taken so that another private party may benefit, if in the process the "public" gains some economic benefit.

This is a very broad interpretation of the Fifth Amendment.  Now, the public does not have to necessarily get a direct benefit from the seizure such as road or school.  As long as there is some sort of economic benefit, such as property tax revenues for the city, then it is OK.

While most cities use their eminent powers as a course of last resort, the temptation now when some developer who wants to build some high end condos or maybe a health spa may be overwhelming to the local politicians, even if it means disenfranchising the local population.  We seem to be allowing the large corporations and well-connected to determine what is best for the community, not the people of the community itself.

Before, the burden of proof that controlled the use of this power was set so that the government had to show a direct benefit to the "general" public.

It has now been lowered to a level that conceivably only a few "well-heeled" persons (i.e. wealthy) have to give enough money to the local government so that they will benefit and they can get what they want wherever they want. Ah yes.....the American way.

Mr. Morgan explained the repercussions of the Supreme Court decision on the Kelo case very clearly.  By citing historical examples of both the use and abuse of eminent domain he put the dispute in perspective.  He also pointed out that this decision has created a giant chasm between local governments and their citizens.

Local governments, both city and county, have long pondered and salivated over the methods they could use to increase their tax base.  Of course, since most local government positions controlled by or dependent upon elected officials, that presents an interesting quandary.  Elected officials must fund re-election bids on a regular basis.  The contributions of private citizens to political campaigns pale in comparison to those of developers and businesses.  The "buy officials" philosophy will only increase following the Kelo decision.

An excellent example of "local government officials as the enemy of private home and business owners" is the City of Newark, New Jersey.  Newark city planners wanted to level 14 downtown acres in the Mulberry Street area so that they could build 2,000 luxury condo units and its supporting retail centers. In 2003 the City Council voted against the plan.  However, eight months later after developers donated thousands of dollars to the city father's re-election campaigns, the City Council reversed its decision.  The Associated Press reported that city officials said that the Mulberry Street project could have been killed if the U.S. Supreme Court had ruled in favor of the homeowners in the Kelo case.

Local officials have formed institutions or very exclusive clubs which seek to preserve the power of the elected entities whose very existence depends upon MONEY.  One example is the League of California Cities whose executive director, Chris McKenzie, recently spoke out against any action by the California legislature that would circumvent the repercussions that will follow the Supreme Court Kelo decision.  McKenzie spoke against a state constitutional amendment (S.C.A. No. 15) introduced by State Senators Tom McClintock (R-Thousand Oaks) and Dean Florez (D-Shafter) that would prohibit governments from seizing private property for anything other than public use. ( Click. to read S.C.A. No. 15 )  Other local government groups and associations have also stated that the proposed legislation is extreme and unnecessary.  But all of the negative response to an amendment that would protect California citizens' constitutional right to private property really reflects badly on the elected officials who belong to the organizations fighting to preserve the power of their membership.

The fight to protect private property rights from greedy public officials will ultimately have to be fought on a city by city, county by county, state by state basis.  If America's citizens want to preserve this very basic right that is the foundation of our constitution they will have to fight the very officials they put in office until or unless those individuals placed in a position of public trust can prove they can be trusted.

In the midst of the turmoil following the Kelo decision one individual stood up for the citizens of his California coastal town.  The City of Encinitas is situated along six miles of rugged coastline, 25 miles north of San Diego, 95 miles south of Los Angeles.  The City of Encinitas web page states that it "was founded over 100 years ago and is now made up of communities that take pride in their own distinct personalities.  Historic Encinitas is on the Highway 101 Corridor that parallels the beautiful beaches and ocean.  Encinitas centers on El Camino Real ("The Kings Highway" founded by the missionaries from Spain).  "Cardiff -by-the-Sea" is made up of quaint homes dotting hillsides overlooking the sea.  "Leucadia" is famous for its giant eucalyptus trees that line the main thoroughfare on the Coast highway.  "Olivenhain" (which means grove in German) boast plenty of open horse country, pastures, and a rural way of life".  The delightful mix of old and new, coast and meadows, the blend of nationalities and the picturesque views might describe many communities in California.  The beauty, the unique way of life, the variety of people and history might well describe many California cities.  It is also just exactly what makes the City prime pickings for developers and businesses seeking to maximize their profits by blending the dividing line between public acquisition of private land and private theft for profit of private land.

Luckily for the citizens of Encinitas they elected a city councilman five years ago who recognized the danger of the Kelo decision and acted to protect his constituents.  Jerome Stocks, city councilman, wrote two letters to his fellow council members.  The first letter he issued was dated March 28, 2005 and clearly stated his moral position.  It read in part, "We cannot allow decisions in our city to be dictated solely by how many dollars it will pour into the city treasury.... Our city government exists for the benefit of our citizens. Not the other way around".  On June 29, 2005 Jerome Stocks wrote the following to his fellow council members:

The United States Supreme Court has recently ruled that a city can condemn one person's private property and sell it to another for private development that promises to generate greater tax revenue for the local government agency.

In my five years as a Mayor and Council Member, no other issue has generated as much discussion and concern as this recent Supreme Court decision.  Our city government exists for the benefit of our citizens, not the other way around!  We cannot allow future land use decisions in our city to be dictated solely by how many dollars will pour into the city treasury.

And that is why, I believe, along with the honorable Sandra Day O'Connor who wrote the dissenting opinion for the Supreme Court, that this is an outrageous assault on our property rights as guaranteed by the 5th amendment to the United States constitution.

Furthermore, as a result of this deeply flawed Supreme Court decision, it is incumbent upon us to find a way to protect ourselves from our own local governments.  And I believe we can.

I will be calling on my fellow Council Members to be the first city in the nation to adopt an ordinance which will be called the "Encinitas Private Property Rights Act of 2005".  The simple language could read:

"The owner of a property in the City of Encinitas has the sole right to determine if that property shall be sold, conveyed, leased, rented, transferred, or exchanged.  The City of Encinitas shall not take or condemn that privately owned property for the benefit of any other private owner or private project by power of eminent domain without first placing the matter to a public vote on a regularly scheduled election, and receiving greater than 2/3 majority vote in the affirmative."

By taking this action, the Encinitas City Council will show that they recognize the value of protecting the private property rights of our citizens from the threat of confiscation by their own government.  I call upon all my fellow Mayors and City Council Members statewide and nationwide to do the same.

Stocks' fellow council members proved to be as honorable as the man that drafted the proposal and on Wednesday, July 13, 2005 they voted unanimously to restrict the City's power to take private property.  The council formed a subcommittee consisting of Jerome Stocks and Christy Guerin to draft the ordinance and report back to the council.

Jerome Stocks and the City of Encinitas have clearly demonstrated that local governments can take a moral position to protect their citizens.  Greed and back door deals are not always the hallmark of local politicians. After all, when local officials protect their constituents rights in this manner, they end up protecting their own rights as well.  Now that they have lit the way, it will be illuminating to see if other local governments follow the light.

by Virginia McCullough © 7/15/05