In June, the United States Supreme Court rendered a decision on the issues of private property rights, eminent domain and the Constitution...



In June, the United States Supreme Court rendered a decision in Kelo v. City of New London, Connecticut1 on the issues of private property rights, eminent domain and the Constitution. Since the decision came down on June 23, 2005, much has been said and written about this case-some good information, some misinformation and some plain bad information. For the benefit of our readers, I will attempt to make some sense out of this decision and what, if anything, it means to surveyors. First, some basic information about the case is necessary before we can analyze the decision in light of any implications it may have for the surveyor.*

Basic Facts

The city of New London, Conn., is, by anyone's definition, an economically distressed community. The city "sits at the junction of the Thames River and the Long Island Sound in southeastern Connecticut. Decades of economic decline led a state agency in 1990 to designate the city a "˜distressed municipality.' In 1996, the federal government closed the Naval Undersea Warfare Center, which had been located in the Fort Trumbull area of the city and had employed over 1,500 people. In 1998, the city's unemployment rate was nearly double that of the state, and its population of just under 24,000 residents was at its lowest since 1920. These conditions prompted state and local officials to target New London, and particularly its Fort Trumbull area, for economic revitalization."2

Pursuant to this goal, the city reactivated the New London Development Corporation (NLDC), a private, nonprofit corporation established some years earlier, to be its agent in implementing and carrying out a revitalization plan of action. The NLDC went to work developing plans, conducting neighborhood meetings, courting private developers and industry, and seeking state input and approvals. These activities took several years. The city eventually asked NLDC to formalize its plans and submit them for city approval. In 2000, the city approved a plan of redevelopment submitted by NLDC. The plan focused on 90 acres within the city that included 115 privately owned parcels.

"The city council approved the plan in January 2000, and designated the NLDC as its development agent in charge of implementation. The city council also authorized the NLDC to purchase property or to acquire property by exercising eminent domain in the city's name. The NLDC successfully negotiated the purchase of most of the real estate in the 90-acre area, but its negotiations with petitioners [Kelo, et al.] failed. As a consequence, in November 2000, the NLDC initiated the condemnation proceedings that gave rise to this case."3 Kelo and the other plaintiffs in the case were private property owners within the 90-acre tract identified by NLDC in its development plan. Kelo, et al., did not want to sell their property, and ultimately became the target of NLDC's eminent domain powers, conferred upon it by the city through the application of state law.

After fighting it out in the lower courts, the parties took their case to the Connecticut Supreme Court for a ruling on the state's eminent domain law and the constitutional question presented: is the application of Connecticut's eminent domain law a violation of the "public use" clause of the federal Constitution? The Connecticut Supreme Court ruled, over one dissent, that:

"¦all of the city's proposed takings were valid. [The Connecticut Supreme Court] began by upholding the lower court's determination that the takings were authorized by chapter 132, the state's municipal development statute. That statute expresses a legislative determination that the taking of land, even developed land, as part of an economic development project is a "public use" and in the "public interest." Next, relying on cases such as Hawaii Housing Authority v. Midkiff (1984) and Berman v. Parker (1954), the court held that such economic development qualified as a valid public use under both the federal and state constitutions. Finally, adhering to its precedents, the court went on to determine, first, whether the takings of the particular properties at issue were "reasonably necessary" to achieving the city's intended public use, and, second, whether the takings were for "reasonably foreseeable needs." The court "¦ agree[d] with the city that the intended use of this land was sufficiently definite and had been given "reasonable attention" during the planning process.4

The case was appealed to the United States Supreme Court, (hereinafter simply referred to as the "Supreme Court," not to be confused with the Connecticut Supreme Court), on the constitutional ground that the taking was a violation the "public use" clause of the Fifth Amendment.

Your Constitutional Right to Own Property

You have no constitutional right to own property. As this case so clearly illustrates, there is no "right" to own property found in our Constitution. Many people seem to be angered at the Supreme Court or even the federal government over this "taking" of private property. The "taking," however, was perpetuated by the state of Connecticut, not the Supreme Court nor the federal government. The only federal issue involved in this case, and the only reason this property case left state court and entered federal court, was the constitutional issue of "public use." The vast majority of all private property rights and the right to own property come from state law, not federal.

If we search the Constitution for our property rights we will only find them in two places and very limited in scope: the Fifth and Fourteenth Amendments. The Fifth Amend-ment states, in part:

No person"¦ shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.5

This is where we find the "public use" clause that is at issue and makes this a federal case. The Fifth Amendment, however, is a prohibition against federal takings, not state. But Justice Kennedy, who delivered the opinion in Kelo v. New London, explained how the Fifth Amendment applies to the states as well: ""˜[N]or shall private property be taken for public use, without just compensation.' U.S. Const., Amdt. 5. That clause is made applicable to the states by the Fourteenth Amendment."6

So what does the Fourteenth Amendment have to say about the states and private property rights?

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.7

As the court stated above, the Fifth Amendment is made applicable to the states by way of the Fourteenth Amendment. Nowhere in either of these amendments, however, nor anywhere else in our Constitution, do we find the right to own property or any of the other various property rights that follow suit. The right to own property and the right to take it away come from the state. If anyone trampled on Kelo's property rights, it was the state that conferred them in the first place. The state giveth and the state taketh away.

State Law vs. Federal Law

This case is also important because it gives us an illustration of the interaction between state and federal law. As did the Connecticut Supreme Court in this case, state courts (with competent jurisdiction) will rule on federal constitutional issues when they are presented in a case involving, primarily, state issues. That was exactly the case with Kelo v. New London. The primary issue was the state's eminent domain law, but the Connecticut Supreme Court also ruled on the federal constitutional issue of "public use." In the vast majority of cases of this type, these federal constitutional issues will be decided in state court applying federal law. The Supreme Court will hear only a small fraction of the massive volume of cases that present a federal issue.

By the same token, when a state case comes to the Supreme Court on some federal issue (e.g., Kelo v. New London and "public use"), the Supreme Court will apply state law on the property issue and federal law on the federal issue. As was done in this case, Connecticut state property law was applied to the eminent domain question by the Supreme Court. The basic ruling of the Court was that the state law did not violate the "public use" clause of the Fifth Amendment. It can't be overemphasized that the state of Connecticut took Kelo's property, not the Supreme Court nor the federal government. The federal judiciary has no power to change state law on this, or almost any other property issue. That power remains with the state and, ultimately, with the people.

What This Means for Surveyors

What this means for private practice surveyors who perform boundary surveys is that your practice, by and large, is governed by state law, not federal. As an example, unless your state has adopted or codified the 1973 BLM Manual of Instructions (the Manual) in some form or another, it has no applicability to the disposition of private property rights or the way you practice (or should practice) in making boundary determinations. Some states have adopted whole sections of the Manual, thereby making it very applicable, but many have not. In either case, there are no federal laws that apply to private property rights, save those discussed above.8 Therefore, if your practice includes the determination of private property boundaries, state law applies, not federal. If, however, your state has adopted sections of the Manual, then those adopted sections have become state law and should be applied in your practice just as they will be applied by a court of competent jurisdiction should your boundary determination be tested against the law and in equity.

As private practice surveyors who have to deal with property rights and their associated issues, it's fundamental to know where those rights come from and how they are enforced and protected. Kelo v. New London helps us to remember that the vast majority of private property rights come from the state and are protected by state law. This is true whether the issue is eminent domain, the Manual, restoration of lost and obliterated corners, subdivision of sections, chain of title, notice, adverse possession, prescription, acquiescence, estoppel, or any and every other right and remedy related to private property. And this excludes those few and itemized issues as found in the Constitution. Specifically, these items include that your property cannot be taken away from you without "due process," the taking has to be for a "public use" and you must receive "just compensation."

If you didn't like the outcome in Kelo v. New London, and I think it's safe to say that many people were quite disturbed by the ruling, don't bother writing Congress or even hanging Supreme Court Justices in effigy. Talk to your state representative. That's where the power over private property rights exists.

*Note: Capitalization has been standardized and internal case citations have been omitted in all quotations.

Neither the author nor POB intends this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar of your jurisdiction.