Written by Pasquale Cervasio Friday, 29 April 2011 00:00
The concept of private property is in this country a tenet of its very foundational framework.
In the Declaration of Independence; “pursuit of property,” as one of the inalienable rights along with life and liberty, was replaced with “pursuit of happiness” because it increased the emotional motivational power of the revolutionary “slogan” making it more acceptable. The concept of property involved an intellectual understanding of a legal principle hence best left for the writing of the Constitution where in fact, in the 5th Amendment we find the phrase in the original meaning of life, liberty and property.
Knowing that at times government might need private property for the construction of facilities for public use, schools, roads, hospitals etc.; the concept of Eminent Domain was established.
Eminent Domain, from the Latin for “supreme lordship,” was defined by the Dutch Jurist Hugo Grotius: “the property of subjects is under the supreme dominion of the state… but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. However, it is to be added that when this is done the state is bound to make good the loss to those who lose their property.”
This principle has served us well until 1998, when the City of New London, CT decided to force buy the properties of 115 homeowners so that a new commercial district (privately owned ) could be established, 15 owners refused to sell and the case went to the U.S Supreme Court in what it became the landmark case: Kelo vs. New London.
The question before the court was: “Can the government constitutionally claim homes and other private property for “public use,” even if the government itself will not be using the property?”
In 2005, with a 5-4 decision the high court decided in favor of the city, however, Justice Kennedy although voting for the majority, voiced concerns about possible misuse of the ruling and that the same could create favoritism.
Furthermore: “In a scathing dissent, Justice Sandra Day O’Connor condemned the ruling as a fundamental attack on property rights. “To reason,” she wrote, “that ... incidental public benefits ... render economic development takings ‘for public use’ is to wash out any distinction between private and public use of property…”
Since the now “infamous” decision, the misuses and abuses of this ruling have sparked an intense debate nationwide. Close to home, there is the case of the 23 owners in Elmont where the Town of North Hempstead is using it to take their properties to give it to a private developer to build a shopping center. Closer still we have our very own case where I believe the City of Glen Cove under the current administration of Mayor Suozzi abused the rule in taking 1 acre of land and the business operated in it by a private owner so that a 51 acres possible, may be in the future, if ever, private development of the waterfront could become a 52 acres site.
Justice Kennedy was right in his concerns of favoritisms.
The point really is that it can happen to anyone of us, if government can take a residential neighborhood, a strip of stores or a parcel with an operating business; then no one’s property is safe!