Response to Dennis Byrne's Monday, June 27, 2005, column "There's no such thing as home, sweet home"

Planning key in Kelo decision; Decision does not expand government's power

Clarification is necessary regarding several factual errors in Mr. Byrne's column on Monday. The Kelo v. City of New London case clarifies the government's ability to use eminent domain to acquire private property for public uses while providing just compensation. It continues over 200 years of practice in our republic and relies on over 100 years of precedents. No new tests were enunciated, no new powers given to local governments. It is incorrect to assume that this decision simply means property will be handed over to developers.

As mentioned in the Court's decision, a determining factor was the "comprehensive character of the plan" and the "thorough deliberation that preceded [the plan's] adoption." The Court's decision underscores the importance of a community to have a comprehensive development plan that is formulated through a democratic planning process with meaningful public participation by everyone: residents, businesses, civic leaders, elected officials and planners alike.

The American Planning Association (APA) — not the American Planning Society — filed four amicus "friend of the court" briefs this term (Kelo v. City of New London, Lingle v. Chevron, San Remo Hotel v. City and Country of San Francisco, and City of Rancho Palos Verdes v. Abrams), in which the Justices sided 32-4 in favor of the positions advocated by APA. With three 9-0 decisions, it shows that planning is neither liberal nor conservative.

The brief filed in the Kelo case was in support of the City of New London and emphasized that additional judicial review, as requested by the petitioners and their financial backers, would severely hamper community development and revitalization. APA's amicus brief acknowledged that eminent domain is concededly a harsh power. "The dangers of eminent domain should be addressed by assuring that it remains a second-best alternative to market exchange as a means of acquiring resources, by encouraging careful planning and public participation in decisions to invoke the power of eminent domain, and by building on current legislative requirements that mandate compensation beyond the constitutional minimum for persons displaced from occupied residences or businesses because of government condemnations."

Eminent domain should always be a tool of last resort, when citizens and their elected leaders have no other way to meet the inevitable challenges of change and help ensure their community's economic prosperity.

Mr. Byrne (in addition to misstating our name) also chooses to misstate our beliefs. We do not believe that "government, not the marketplace, should decide where growth occurs ..." In fact, we believe that the entire community should decide in a democratic country with a free market economy.

The best protection from unfair use of eminent domain is a thorough, open and transparent planning process. The Court reaffirmed this at the same time it correctly ruled that the proper place to decide whether eminent domain should be used or not is in the hands of local communities, not federal courts.

Paul Farmer, AICP
Executive Director and CEO
American Planning Association