It is somewhat rare that I find myself in personal agreement with the conservative element of the Supreme Court, but this is one of those times. Recently, the Court upheld a Connecticut court decision (Kelo et al v. City of New London, 04-108) over the taking of a number of private residences to amass the land necessary for a new commercial development.
Traditionally, governments have only been empowered to exercise eminent domain under the Fifth Amendment in support of some "public use" such as a road, bridge, school, etc. This decision extends the definition of "public use" to anyone and anything that might provide a greater economic benefit - and the definition of the economic benefit is in the hands of the government and the acquirer of the property, not the current owners. I guess that this means that no one really owns property, they just have a limited license to use it until someone decides they can find a better use for it and can convince a city or county government that they are right.
Justice Sandra Day O'Connor, in her dissent, noted that this decision abandoned the traditional definitions and principles of individual property rights and enhanced the influence and power of the wealthy and well-connected at the expense of the individual land-owner. I am sure going to miss her voice of reason and moderation on the Court.
In our industry, we frequently deal with similar claims that community associations deprive owners of their property rights. I, however, see a big difference in the circumstances.
Individuals buying a home in a community association enter into a contract which spells out the specific relationships, requirements, and limitations they are agreeing to. They are, or certainly have the opportunity to be, informed before they buy. An eminent domain taking on the other hand can occur at any time, for any purpose, based on this Supreme Court decision. The individual owner has no expectations, limited warning, and now, apparently, very little recourse. Perhaps this was the correct legal decision, but I am not sure it was the equitable one.
Of course that is just my opinion.
