US Supreme Court upholds takings

One of the big political issues in Washington state for 2006 will surely be an Oregon style “takings” initiative, that requires state and local governments to compensate property owners for potential value lost due to land-use restrictions. On a somewhat related topic, today a divided US Supreme Court broadly reaffirmed the Fifth Amendment power of eminent domain.

In a closely watched decision the court ruled 5-4 that local governments have the right to seize private property for private development in the interest of the common good. The court said that local officials, not federal judges, are best capable of determining whether a development project benefits the community.

“The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including


  1. 3

    windie spews:

    The Tri-met urban planning thing was beautiful, and the ‘takings’ initative was a narrow-sighted greed-funded piece of legislation based on developers wanting to put huge sprawls in Washington county where there are currently farms.

    ‘S a pity that it was upheld, ’cause the Portland area will likely be alot less livable now.

  2. 4

    fire_one spews:

    Let me get this straight – The freakin’ city can take my house to put up a Walmart!? I can tell you one thing, if this ever happens, I will waiting, armed to the teeth…

  3. 5

    Roger Rabbit spews:

    I would have liked a different decision from the SCOTUS. This case doesn’t involve land use controls. The question is simply whether local government can kick you out of your home if omeone wants to put a store or warehouse there. There is a damned serious weakening of the “your home is your castle” principle, and it is certain to be abused by local politicians who are little more than paid lackeys of business interests. When was the last time you saw a city hall that cared a whit about homeowners? This decision sucks.

  4. 8

    Carl W spews:

    If governments have the right to seize your property so they can put in the new Wal-Mart ÃœberMart, does this mean that governments could, say, seize that Wal-Mart property to put in some mixed-income housing and a nice little park or something actually beneficial to the community? Wouldn’t that be nice.

  5. 9

    DamnageD spews:

    @ 4

    uh, yep! “Any property may now be taken for the benefit of another private party…”” O’Connor wrote. “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”


  6. 10

    DamnageD spews:


    Very cute, careful how loud you laugh…you might be next!


    And will of the dark side it to make dark chocolate!


    Sick of,

    Big brothers been here a while…this is more like sodomy by BB and his friends!

  7. 12

    Mr. X spews:

    This is a truly terrible decision – and a further blurring of the notion of a public purpose (parks, fire stations, housing for the very poor – which I’m sure our Rethugs just love – roads, etc.) with private development projects (stadia, wal-mart, upscale apartments and/or condos). Hell, under this decision, a rendering plant in a residential zone would be a public good if a majority of any elected body said it was so.

    Much as I hate to agree w/Scalia, Rehnquist, and Thomas, they got this one right.

    Yet another reason why Washington needs to stay from tax increment financing and to adhere to our State Constitutional prohibition on lending public credit for private gain.

    Eminent Domain has its place, but not to publicly subsidize private development schemes.

  8. 13

    Janet S spews:

    First the marijuana decision, now this. Different mix of judges, but interesting that Thomas was on the side of individual rights in both.

    Imminent domain should be for public use only. Condemning property so a commercial enterprise can use it is just wrong.

  9. 14

    bluesky spews:

    did you see who the majority opinion was????

    Stevens, Ginzburg, Souter, Breyer, and Kennedy.

    I don’t get it. That is the “liberal” wing of the Court.

  10. 16

    BF spews:

    Carl W @8

    The government was already able to condemn private properties for the construction of roads, parks, and other public uses.

    The difference now is that the government can essentially act as an agent for a big developer and buy private land through condemnation for essentially private uses.

  11. 18

    righton spews:

    Costco and others supported this; key to getting sites in blighted areas.

    Should be one of those issues that unites populists on both sides. I thought the purpose of the takings clause was not only to require compensation, but also limit the use of gov’t takings. I barely understand taking my house for a freeway, let alone for Donald Trumps next office building…

  12. 19

    All tools here, and yet there are still screws loose. spews:

    If someone tries to knock on my door to tell me the state says they can take my land, they will have to take a barrel out of their mouth before they can utter a word.

    I say shoot it down or pay fair(or more than fair) market value for the property that is being re-zoned and seized.

  13. 20

    drool spews:

    Yeah well King county allows virtually unlimited growth on lakeshores becuase that generates piles of tax revenues. Got out to the boonies where there won’t be much tax revenue due to zoning restricitions and King Sims declares half my land to be au natural from here on out. That’t panderin gto his bottom line pure and simple. Same thing that happened back east.

  14. 21

    marks spews:

    bluesky @14, and any other lefties:

    This illustrates in stark relief one of the main ideological divides between left/right thinkers. On the one hand is Goldy’s (and 5 out of 9 SCOTUS Justices) unwaivering faith in elected government to do the right thing, the “necessary balance of public good and individual (property) rights.” On the other, the belief that our home is indeed our castle and our right to it is inviolate.

    What is horribly wrong with the decision is that private enterprise is at its root. Somehow, unblighted neighborhoods can fall prey to an economic interest pushed by a majority of elected officials on your local council. Sure, vote them out if they fuck up, but how do you get your property back after the deal is done and you have been evicted for the good of the community?

    For you left thinkers who find this objectionable, you better start asking your elected representatives how they view property rights before you cast your vote for them.

  15. 22

    righton spews:

    Yeah, but what if we could bulldoze the pinko coffee shops in Fremont for a nice big Wal-Mart? Wouldn’t you gov’t loving lefties come out to protest then?

    Just think of all the fast talking operators (e.g. Joel Horn) that will be working the City council’s of america to condemn some properties for some big mega project in the public interest…

  16. 23

    DamnageD spews:

    Does that “private interest” include Condo developers as well? Considering where I live in Seattle, there’s condo development all around me (literally next door…3 houses raised for an 8 unit pressboard box)! It took a year and a half for anything to be started, and the rest of the main street property owners get hassled weekly to sell. So if the developers include a damn street level store in their plans, I wonder if I should expect “fair market” offers any day now.

    What the fuck does “fair market value” mean anyways? Fair to them, or fair to me? Nothing like leaving the door open for interpretation!

  17. 24

    All tools here, and yet there are still screws loose. spews:

    DamnageD @ 23

    Almost enough to get you to re-think your political leanings isn’t it? I’d be writing your representatives now before it is too late.

  18. 25

    shotsix spews:


    Not that I agree with the decision….. but the thing is, that a Walmart would never be erected in Fremont because THE LOCALLY ELECTED representatives would never go for it. This doesn’t mean that developers can take your land, it just means that more authority has been given to local municipalities. There is definitely room here for individuals to be crapped on…. I just think the court gave deference to local rather than federal needs.

  19. 26

    shotsix spews:

    and, I think Washington State has some strict laws against using eminent domain for economic projects. So, unless the law changes, the New London situation could not happen here.

  20. 27

    All tools here, and yet there are still screws loose. spews:

    shotsix @ 25

    It opens the door for too many possibilities.
    Someone on the local city coucil could say damn I hate Joe Blow down the street his dogs bark at my Jag every time I drive by… Hey look here [insert business name here] is looking to build why not kill two birds with one stone.

  21. 28

    shotsix spews:

    this was not a “shall” or “shall not” decision…. those ones have a much bigger footprint on our individual freedoms…..

  22. 29

    marks spews:

    shotsix @25

    This doesn’t mean that developers can take your land, it just means that more authority has been given to local municipalities.

    No, it means ultimate authority has been given to the majority of bigwigs on your municipality, and you have NO recourse based on the SCOTUS interpretation of the 5th Amendment.

  23. 30

    shotsix spews:

    If nothing else, it should mobilize the local populace to enact laws through politicians or initiative against Hilton tearing down low income housing….and at least in this state, as I said before, we already have those laws.

  24. 31

    GeoCrackr spews:

    So, I understand why everyone’s up in arms over the execrable new eminent domain for private developers decision, but am I to take it that no one’s interested in the compensation for “potential” value lost issue that Goldy originally raised with his post? And how it’s yet another example of how the anti-regulators/”free traders” want to socialize risk while privatizing profits?

  25. 32

    righton spews:

    25; King County or say Sound Transit might easily decide to condemn land in your neighborhood if say Walmart offered to build last 5 miles of Rail or some other community need…

    Its not all Fremont; you can get jammed now by any gov’t agency, and shoot for all you liberals so concerned w/ the common man; they won’t be doing much of this to folks in Broadmoor; its going to be inner city blighted areas or other poor folks (mostly)

  26. 33

    righton spews:

    Goldy; i understand the Supreme court thing; but i can’t make sense of this initiative…can you print more detail

  27. 34

    Steven spews:

    In all honesty, this decision isn’t that surprising nor does it open up new avenues of government power. These types of practices have been going on for years and today’s decision is really only an incremental increase in government authority. In fact, when our beloved President was Managing Partner of the Texas Rangers, the local municipality condemned the land on which Arlington Stadium is built over the objections of the local landowners. See Frankly, the bigger issue is the one that Goldy is talking about…the uncompensated regulation of property and how far can the government go in restricting use to accomplish a public purpose without compensation.

  28. 35

    BF spews:

    GeoCrackr – If it were the free-trade – anti-regulation bunch there would not have been new zoning regulations such as those passed that have had an affect on value.

    For example, say you own a one acre piece of land that is currently zoned R6 so that you could subdivide the property into roughly 6 lots. The 6 potential lots would fetch $30,000 to $40,000 per potential lot if they were put on the market. (This is for the potential only, if the lots were subdivided, they would probably be worth $100,000 to $125,000 each.

    Now, King County comes through and changes the zoning to Rural 5 or Rural 10. Unless you had already divided your property the same one acre parcel, now has only potential to be one lot. Since typically lots are lots are lots, there is not a huge difference in price between the varying sizes. But let’s say for this case, that $150,000 would be fair market value (Buyer and seller agree on price and terms.)

    Let’s compare:

    Estimated value with original zoning:
    6 x 30 = $180,000

    Estimated value after the zoning change:
    1 x $150,000 = $150,000.

    While this is only a $30,000 dollar loss in property, imagine now if you had 5 acres, the potential lots increase to 30. That’s 30 potential lots at $30,000 each or $900,000 total. The individual lot would still only likely get about $150,000 to $180,000 on the open market, but let’s use $200,000.

    So the difference in value under this scenario is $700,000. ($900,000 – $200,000) That’s a lot of money so that someone from the city can come look at farm animals.

    As far as a free market response… The county did allow (and may still) alllow the transfer of development rights. In that, persons living in the more rural areas could sell their potential development rights for developers to use to increase density or increase height restrictions on another site. Once the development rights were sold, the property could not be further divided.

  29. 36

    windie spews:

    one of the main points is to protect things like family farms from development. If your farm gets taxed out from under you, due to the fact that its worth 50x as much subdivided, you’re not too pleased.

    Compensation is simply a sop for developers and land speculators.

  30. 38

    GeoCrackr spews:

    BF @35
    Yes, I understand the math and your objections, but your first sentence sounds like you’re conflating the zoning board with the developers who would be taking advantage of the takings initiative.
    Now let’s turn your example around. Say the zoning board changes the zoning of my acre from Rural 5 or Rural 10 to R6. Since under the initiative in your example I would be able to demand “potential” compensation from the county, in my example would I then be required to pay the county the $30k that I might make? No? THAT’S what I mean by socializing the risk while privitizing the profit.
    Also, who would determine how this so-called “potential” gets calculated?
    Update on he SOTUS decision — NOW on PBS will be covering the decision this Friday in a segment titled “Land Grab”. Enjoy.

  31. 39


    The new law has turned out to be a nightmare for Oregonians.

    DON’T DO IT.

    The new law is one of the few things that Oregon has done right.. it should not only be law here but throughout the nation. If the government wants to restrict property rights then let them buy the land at the market rate.

  32. 40

    All tools here, and yet there are still screws loose. spews:

    RUFUS @ 39

    Well that and get rid of “Au Natural” Sims.

  33. 43

    Outboard spews:

    That is what you get with activist judges. Or should I say liberal judges on the Supreme Court. Personal property rights are nothing to loose. IT has been happening for decades. This area in question is run by Democrats when I lived just north of their. I worked at the Navy base and was not a resident of CT so I could not vote on issues like this. It comes down to not business greed but GOvernment greed for more money. At the time thise was taking place. The Military had moved out a lot of people from that area and over 5000 local jobs were lost. THe government had been increasing spending with declining revenue. Homes in my neighborhood in 87 were worth about 250000 it is the same house I bought for 153,000 5 years later after all the job loses. 8 years later I sold the house for 160,000 Every community was getting desparate to find ways of making more money. It was at the same time that CT changed from a Property tax state to an Income Tax state. At that time they said it was a temporary thing. But property values dropping they had to find some other way to increase revenue. In comes a temporary Income Tax that was very high. I being in the US Navy did not have to pay it. But my income was counted in with my wifes income to figure out the tax bracket and then deduct my income tax to my home state and tax the rest. Very antimilitary in the way a family income was taxed for enlisted families that could not make it on the military pay. Property tax was at about 3000 on my 150000 home when I bought and 8 years later it was around 4500. Plus the income tax that inflated my wifes tax burden from 500 to nearly 1500 dollars.
    THis just gives you an idea of what a democratic run state and CT is democratic. THE Republicans are no different than Democrats when it comes to taxation in that state. They are all liberal with no conservatives running for office.
    So keep demanding more liberal judges and you will see even more rulings that eventually will take away everyones rights. The next big one will be religious freedom. The anti christian atmosphere in this state and around the country could make religious freedom for Christians at the same level as Canada. The Bible is considered HATE Speech. I guess liberals dont want to be shown that there is both good and bad in society. WHo know what will be next. But whenever the Supreme Court finds unwritten items in the constitution and use International law to back their view points you can only ask for trouble. It is better to have a RULE of LAW judge than an PERSONAL OPINION of LAW judge. At least you can point to the constitution as the reason for the ruling not CUBA, FRANCE or CANADA (All three are socialist governments and it the ruling class have all the rights and not the individual)

  34. 44

    David spews:

    shotsix @ 26: Correct. What happened in New London, CT can’t happen in Washington State. Here’s a press release from the AG’s Office:

    OLYMPIA – Attorney General Rob McKenna today issued the following statement on the U.S. Supreme Court decision in Kelo v. New London, Connecticut, in which the Court held that taking for “economic rejuvenation” satisfies the “public benefit” requirement in the Fifth Amendment’s takings clause in the U.S. Constitution.

    “The Washington State Constitution prohibits the use of the power of eminent domain to condemn private property for private use and reserves to the judiciary the role in determining what constitutes a public use.

    The Washington Supreme Court has defined the ‘public benefit’ limitation more narrowly than the definition used by the U.S. Supreme Court in the recently announced Kelo decision. Accordingly, the condemnation of private property for the type of development at issue in the Kelo case would likely be evaluated as a matter of state constitutional law under standards that are potentially more protective of private property rights than those used by the U.S. Supreme Court today.”

  35. 45

    Chuck spews:

    You know the difference between a supreme court justice and the KKK?
    A supreme court justice puts on a black robe and scares the hell out of white men!

  36. 46

    DamnageD spews:

    David @ 43

    Thanks for the quotes from the AG’s office. That makes me feel a tad bit better.

    Chuck @ 44


  37. 47

    zip spews:

    I agree that this is a terrible ruling. The King County CAO is NOT “local” land use planning. Every single thing King County did was mandated top-down fashion by the state via GMA’s requirement that CAO follow “best available science”. That is the opposite of local planning!

    It would seem that the US Supremes would strike down the GMA because it’s not “local” or am I reading this issue wrong?

  38. 48

    DamnageD spews:

    Well just when I thought I was safe (enough), I read this little jem from yesterdays Seattle P.I.

    Nickels’ tilt toward developers irks residents
    Neighborhoods feel ignored by overhaul of land-use rules

    Neighborhood leaders citywide are upset over developer-friendly changes that Mayor Greg Nickels is proposing for neighborhood business districts, where land-use rules haven’t been overhauled in nearly 20 years. City officials say the plan would make commercial areas livelier, reduce vacancies and make shopping hubs work for people, not just for vehicles. Pedestrian-friendly street scapes have been a top priority for many neighborhoods, the officials say.

    Critics, however, say that other changes could hurt local businesses by reducing parking requirements and replacing storefronts with condominiums.

    Many have blasted the plan as a cookie-cutter approach. The Morgan Community Association, for instance, found that more than a third of the proposed changes conflicted with what residents wanted in their neighborhood plan.

    key elements of Mayor Greg Nickels’ proposed changes for neighborhood business districts. For more details, visit:

  39. 49

    zip spews:


    That article points out another repercussion of the GMA: the cities must accomodate the increased density mandated by the state. The developers are the ones who “make it happen” so they get what they want. Especially while Nickels is mayor.

  40. 50

    Liking it spews:


    Please don’t tell me that you sold out. I don’t think you are really in favor of giving developers unlimited rights to condemn your home to build a shopping mall. What has happened to liberalism?

    Not really liking it so much.

  41. 51

    DamnageD spews:

    I suppose anyone with enough money and influence can get what they want. Wait, I think the term was “disproportionate influence and power”…thanks Sandra!

  42. 52

    Mr. X spews:


    Oh how I wish you were right, but something like this already happened in Washington State when the Supreme Court upheld public financing for the Mariners Stadium, and allowed them to declare it a public emergency that precluded a voter referendum on that project.

    In effect, the Wa. Supreme Court has already ruled that an emergency and public necessity are anything an elected body says it is. We still have the language on the constitutional prohibition on lending of public credit, but that decision rendered it a dead letter – just as the SCOTUS rendered the Fifth Amemdment effectively moot.

    The notion that government can take your property to allow some other non-essential private economic development to occur ought to have any sane person – right of left – reaching for their pitchfork.

  43. 53

    GS spews:

    Yup all the Liberals on the supreme court today voted to allow goverment to steal property from the middle class and poor, for the benefit of the rich developers…….All conservative judges voted against this.

    Who is representing you in the Supreme court today?

    Is this what the democratic party of your fathers would have supported?

    Looks like the Demorats have made a switch to benefit only the rich, and they are now eating their own with this and the Washington State 8.5 billion Gas Tax!

    Who’s watching out for the little person now?

  44. 54

    David spews:

    X @ 52: Declaring a project an “emergency” is a separate issue from whether the state can seize land from one person in order to give it to another. The M’s stadium was built on the old Kingdome parking lot, if I recall; I don’t think eminent domain came into it at all.

  45. 55

    Marilyn spews:

    I think this is a very poor decision. Eminent domain should only be used in the public interest, with tightly defined criteria and then defined very narrowly. It should not be used to encourage private development – that can be done with tax incentives and other mechanisms. Public benefit should have to be proven and the benefits should be focused on something more than a given amount of tax dollars coming in, or a given amount of low wage jobs to sell imports from other countries. Every developer, builder, in the world is going to claim that they bring some public benefit. I suppose one could argue, in the case of roads and highways for instance, that the taking of private property for public use, (usually easements) also benefits private developers (of infrastructure), etc. when states mandate that any contracts over a given $ must be given to private companies.

    The status quo was about right – the law did not need broadening. Local communities are now the mercy of outside developers, and the politicians they finance. Frankly, I don’t see this as a liberal decision at all. I see it as a buyout. It is illustraive at just how “liberal” “conservative” people can get when their own pockets benefit. But it should not have been a surprise. The Supreme Court sold out a long time ago, This is soo big money.

    Oh, and while we’re lathered up about this…there is a reverse corollary : Local governments selling off public spaces, that is, public assests, to private developers by delcaring them to be “surplus”; or, declaring park space surplus to save money on maintenance (saving money at the public’s expense). Marilyn

  46. 56

    righton spews:

    I’m calling Sims to see if I can bulldoze some crack/meth homes and put up condos..
    a) I increase his tax base
    b) I get some drug dealers to move out of town

    Seems too easy to make a lot of scenarious sound usefull for a emminent domain argument. Lets take the house of the crazy cat lady, or guy who stores junkers cuz we could put up a condo project..

  47. 57

    Mr. X spews:


    Not quite true – the PSA condemned the nearly 100-year old Filson manufacturing plant. But the core decision was really the same – despite our State Constitutional prohibition on the lending of public credit to a private party, the Wa Supreme Court said public necessity is defined by whatever a local elected body says it is. The SCOTUS decision essentially did the same thing to the 5th Amendment. Bottom line, constitutional protections for individuals against (previously unconstitutional) legislative acts have been gutted.

  48. 58

    righton spews:

    How come a woman has the right to an abortion but I don’t have the right to fully own my house?

  49. 59

    Mr. X spews:

    Because property rights, while they ought to be defended to a reasonable degree (and I think this decision is terrible for most people’s definition of reasonable property rights), are not the same as the right of autonomy over one’s own body.

  50. 60


    this was absolutely the proper decision, if you believe in precedent and jurisdiction. The concept that legislative bodies determine what is proper public use, is a longstanding one. And it’s been at least 100 years since the idea of “public use” meant anything other than “in the public welfare;” 50 years since economic development was specifically considered legitimate as in the interest of the public welfare.

    The majority was absolutely correct on those bases, IMO.

  51. 61

    bf spews:

    Our property rights distinguish us from communist countries.

    If we allow our property rights to disintegrate, we allow the government more control over our lives.

  52. 62

    pbj spews:

    So if WalMart bribes a few local politician’s and is able to convince them that Goldy’s home has a “higher economic purpose” as a WalMart, then you are OK with that?

    This decision was not regarding takings for public use such as roads and bridges. It specifically refers to private interests getting the results of the takings.

    I thought liberals were against rich folks bullying the little guy. Because that is what this ruling is all about. It is about rich developers being able to run roughshod over the property rights of the working man who may own a modest home. Any developer who can bribe enough local politicians (and judging by the Rick’s strip club scandal it doesn’t take much) to convince them that the taking is for a “higher economic ” purpose, is it too bad for the property owner.

  53. 63

    righton spews:

    Just think if we could demolish the crappy little houses in Wallingord; all the republicans we could import from the suburbs into nice big new houses. OK by the supremes..

  54. 64

    BananaLand(aka Iguana) spews:

    Go Oregon!

    There is no balance in a place like King County. That’s why it’s best to force the government to keep its dirty hands off private property.

    The CAO has got to go. And it will.

  55. 65

    PacMan - The Best Game Ever spews:

    It’s the damn liberal SCOTUS judges, who think this land was your land, this land is now my land!

    I think it’s great liberal judges are biting you HAs in the butt.

  56. 66

    pbj spews:


    Joe, it is corporate tools such as yourself that made me leave the Democrat party. You spew hateful rhetoric and fool yourself into beleiving that you are working for the “common man”. Maybe there are some homes in poor areas that people would consider blighted. But those homes are all the people could afford. Now you want to allow a private land developer to bulldoze those homes and put in expensive condos. Some compassionate liberal you are. That’s what always got me about liberals – their actions never matched their rhetoric.

    There has always been the power of eminent domain for public projects. Now they are allowing it for private projects. So all a big rich developer need do is bribe a few local officials and they get the land at fire sale prices. No recourse for the stuggling poor person rtying to keep a roof over their kids heads.

    Yeah. Liberals are real compassionate.

  57. 68

    Steve S. spews:

    If higher tax dollars are the only criteria for a local township to hijack privaye land, then we are in a world of sh-t! We have 21 acres left, out of roughly 200 acres which is the old family homestead. Aprox 180 acres was (seized by the state gov for a new state prison back in the mid 50s. Eminent domain was the method, and Grampa was given fair market value for his fertile farmland and forests.We are left with an old farmhouse, quite modest, in various states of disrepair. With full time work, and a serious back problem, it gets work done on it as I can.With recent development occuring,(ten homes in the last three years),within a four block area in this very rural area, its only a matter of time before some fat cat developer with a fist full of money comes knocking on the local township supervisers doors looking to strike a deal on (that 21 acres that belongs to that poor white trash on the hill over there). My question is, are there any organizations petitioning to change this problem? What can I do?? Wher do people like me turn to? WHAT CAN I DO , what
    what can WE do? Pleare respond Steve S. Jackson Township, Pa.