Think you own your land? Think again.

Would you let the buyer determine the price of your home? Of course not. Yet this is exactly what you are going to be asked to do during the condemnation process. Find out about all the pitfalls and risks from some of San Diego’s top advisors in condemnation law.

Even the best San Diego eminent domain or inverse condemnation lawyer has to work hard to keep up with this fast changing area of law. The best attorneys who specialize in eminent domain and inverse condemnation law know that the issues before them are as fundamental as the Fifth Amendment of the Constitution. Eminent domain abuse is growing as condemnation actions increase when local governments cave in to big money interests. King George may be long dead and buried, but as our article points out, he’s got some new stand-ins sitting on your city council or county supervisors with powerful friends on the Supreme Court.

Most of our families came to this country to escape oppressive governments and to gain freedom and civil rights in the great country known as America. As little as twenty years ago, America diligently fought the forces of communism to protect the ideal of private property and private accomplishments. Today, Americans are laying down their lives overseas in what has been billed as a fight for freedom in the Middle East. A cornerstone of our liberty -- grounded in the Fifth Amendment to our Constitution -- is the right to own property and to limit the government's ability to tamper with that ownership unless the property is needed for a public use. Property owners may be upset when the government takes their land for a road or a school. However, no owner expects to hear that the government intends to condemn their land so that a bigger, wealthier company can use it for profit. This, unfortunately, is the type of condemnation that was just approved by the United States Supreme Court in Kelo v. New London, ___ S.Ct. ___, 2005 WL 1469529 (June 23, 2005). That decision sacrifices very important civil liberties and signals the end of property rights as we have all known them. In the words of Justice Thomas: "The consequences of today's decision are not difficult to predict and promise to be harmful." Id. at *28.

The downward spiral that led to this decision began innocently enough in 1954 when the Supreme Court ruled that a city could condemn property in a very dangerous and poverty-stricken community for the public welfare. See Berman v. Parker, 348 U.S. 26 (1954). Thirty years later, the Court permitted the state of Hawaii to condemn feudal lands so as to provide for more diverse land ownership. See Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). Those decisions have long been debated as to the extent to which they authorize condemnation of private property when the ultimate purpose is private profit. Across the country, landowners have waged war against the oppressive local governments, battling off attempts to condemn the small players so as to make room for the fat cats. Some won, others lost, then, in 2004, when the Supreme Court granted review in Kelo, the small players held their breath, hoping that finally they would be protected. Such protection was not to be.

In an oblique opinion, which opinion provides no guidance as to how it will be implemented by the lower courts, the Supreme Court held both that a sovereign "may not take the property of A for the sole purpose of transferring it to another private party" and that the Court cannot "second-guess the City's determination as to what lands it needs to acquire in order to effectuate the project" at issue. Kelo, 2005 WL 1469529 at *5 and *9.1 Justice Kennedy, in a concurring opinion, attempts to clarify the bewildering majority opinion by indicating that courts should use the rational basis test to determine whether a condemnation was "clearly intended to injure a particular class of private parties, with only incidental or pretextual justification." Id. at *10. The fall-out from Kelo will be disastrous for small private property owners. It will be a windfall for wealthy developers. Kelo is a shameful progeny of Midkiff, which case's purpose was, Robin Hood-like, to prevent feudal land barons from harnessing less fortunate individuals to long-term leases with no hope of land ownership. Following Kelo, we can expect to see the land returned to the feudal barrens as developers demand condemnation of small plots for the purpose of assembling large projects to make for large profits.

The probability of this disgraceful result was well known to the Court and it is acknowledged in both dissenting opinions. Justice O'Connor wrote that "the government now has license to transfer property from those with fewer resources to those with more," reminding us that the Founding Fathers never intended for this to be so: "'That alone is a just government,' wrote James Madison, 'which impartially secures to every man, whatever is his own.'" Kelo, 2005 WL 1469529 at*19. Justice Thomas wrote that "extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities." Id. at *28. He further pointed out that historically, redevelopment has disproportionately impacted minority and low income people. Id. at *28. Not since Plessy v. Ferguson, 163 U.S. 537 (1896) has the Supreme Court laid waste to such a broad range of civil rights with one decision. It took over fifty years to right the Plessy wrongs. For the sake of property owners across the country, we can only hope that Kelo is overturned more quickly, either by state statutes or by the Court. The only certainty is that until such a time, none of us truly own our land, we merely possess it until such a time as some governmental agency or authorized company decides that something else would be more aesthetically pleasing or profitable on it. This just cannot be the American dream we all came here to find.

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Thorsnes Bartolotta McGuire
2550 Fifth Ave., 11th Floor, San Diego, CA 92103, 619-236-9363