Question

After Kelo, what takings would still be outside the scope of public use?
Consider the following scenario: Citizen A owns a large home in San Mateo County, California, on the ocean south of San Francisco, in which has lived for 15 years.
San Mateo County proposes to condemn A's home and transfer it to Citizen B for the purpose of operating a restaurant and small hotel, both open to the public
Does the taking viloate the Fifth Amendment?
Does the following excerpt from justice Steven’s opinion help?
“ It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot,17 the hypothetical cases posited by petitioners can be confronted if and when they arise.18 They do not warrant the crafting of an artificial restriction on the concept of public use”

how would you distinguish the citizen A hypothetical from kelo?

Answer 1

The Fifth amendment of the USA structure states that the federal government could take private property only for a "public use." despite the structure's plain language, the us Supreme court docket not too long ago declared in Kelo v. New London that the constitution enables neighborhood governments to use the vigour of eminent domain to take property from one man or woman to present it to another. Local governments can now take a individual's property exclusively for fiscal development. In other words, executive is free to take property and provides it to any person who will use it in a manner neighborhood officials deem extra moneymaking or fascinating. Below the Supreme courtroom's interpretation of the structure, no man or woman's home, trade, or farm is trustworthy from government officials or well-related developers who may covet the property.

After effortlessly rewriting the Fifth amendment with the aid of substituting the phrases "public motive" for "public use," the Supreme courtroom introduced that states could furnish extra security for property owners than the restrained defense the united states structure now provides. Many state representatives spoke back by way of proposing state laws and state constitutional amendments. Nevertheless, simplest a constitutional modification appears a believable solution for Virginia.

Legislation falls wanting offering everlasting safety for home owners for 3 reasons. First, what the general meeting ("meeting") offers at present, it might readily take away the following day. Second, the meeting's prior document proves it are not able to be depended on to defend property owners. Third, with regard to eminent domain, Virginia's constitution presently allows the assembly to define the boundaries of its possess vigour. A constitutional amendment supplies enduring security on the grounds that, in contrast to legislation, which the meeting can conveniently alternate, the assembly are not able to exchange a constitutional amendment without the humans's consent. Simplest a majority of the voters can exchange protections placed in Virginia's constitution. In addition, the meeting's prior moves show the assembly has no longer included home owners. The final assembly has carelessly handed out powers of eminent area to numerous governmental and non-governmental entities. The assembly has even given mosquito control commissions energy to take property.

Equally worrying is the breadth of energy the assembly gives these entities. For instance, the assembly gave cities the vigor to take property for the purposes listed in each metropolis's constitution. The meeting above all accredited a charter that enables the city of Norfolk to take property "for any purposes of the city." Norfolk's charter even allows the town to promote or switch, with out restrict, property it has taken.

With the aid of broadly delegating the energy of eminent area, the overall meeting effectively rid itself of all accountability. Even cities have caught on to this novel inspiration, as city council members inspire the construction of recent layers of government, corresponding to redevelopment authorities, that do the unpopular work of taking persons's property to look after these in public administrative center who have got to face elections. The assembly's careless delegations of vigour and its huge definition of public use, as discussed beneath, discipline house owners to the whim of unelected, unaccountable bureaucrats wielding significant powers of eminent area.

The meeting's actions will not be stunning considering the fact that that Virginia's constitution at this time enables the meeting to repair the bounds of its power of eminent area. Article I, § 11 of Virginia's constitution purports to location a restriction on the meeting by prohibiting it from taking property for motives as opposed to "public makes use of." The structure then instantly removes this limit by way of authorizing the assembly to outline "public makes use of." Virginia's constitution for that reason locations no actual limits on the scope of the assembly's vigour of eminent domain. As a substitute, the constitution depends on the assembly to restrict itself.

The assembly's gift definition of "public uses" supplies another illustration why a constitutional amendment is integral. The assembly defines "public makes use of" as "all uses which can be vital for public functions." This expansive definition is much like the definition the Supreme courtroom used to help its determination in Kelo. "Public uses" and "public functions" aren't synonymous. "Public use" approach the government owns or the general public has a correct to make use of the property taken. "Public reason" manner making a public benefit, akin to growing jobs or producing extra tax revenue. Below this normal, government can take property for public or confidential makes use of, similar to takings for enterprises or builders, so long as it creates a perceived public improvement.

A constitutional modification presents the only lasting safety for property owners. Mere laws won't sufficiently preclude the assembly's powers. The silver lining in the cloud of the Kelo selection is that it has raised public cognizance of eminent domain and the chance it poses to all home owners. Virginians need to act now to restore and make sure any meaningful protection of their property rights. Within the words of Virginia's possess Thomas Jefferson, Virginians have got to bind the meeting down "by way of the chains of the constitution." until the people demand a constitutional amendment, the assembly will probably be bound by means of nothing greater than its possess judgment of right and wrong and ambition, two things no Virginian should trust.