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Sotomayor's eminent domain stance: What does it mean for cities?

Supreme Court nominee Sonia Sotomayor is dominating the conversation in Washington as analysts begin  to dig into her past rulings. And while she has yet to weigh in on abortion, the judge has spoken loud and clear on an issue of interest to livable streets advocates: eminent domain.

2009_04_soniasoto.jpgSupreme Court nominee Sonia Sotomayor (Photo: Gothamist)

As a judge on the Second Circuit Court of Appeals, Sotomayor ruled against property owners in Didden v. Village of Port Chester, a case that centered on plans for a CVS drug store in Westchester County.

Lawyer and blogger Ilya Somin, who urged the Supreme Court to consider the Didden case, has a thorough—if undeniably subjective—summary of the case here. In an unsigned judgment, Sotomayor's court ultimately allowed the Westchester developer to condemn the land belonging to plaintiff Didden and build a competing pharmacy, despite the questionable public-use benefit that would result from the taking.

During her confirmation hearing, Sotomayor is likely to get pointed questions on Didden from conservatives who were dismayed when the nation's highest court ruled in favor of eminent domain rights in 2005's Kelo v. New London. But should urbanites, and livable streets advocates in particular, also be concerned by the nominee's stance on takings of private property?

In theory, eminent domain can and should be used for beneficial purposes, such as transit expansion. Yet a recent push along those lines was halted by the Colorado state legislature last year, and proposed curbs on eminent domain are also imperiling the future of light rail in the Houston area.

On the flip side, local governments often take private property for new development projects, claiming that commercial and office buildings justify a standard of "public use"—as was the case in Kelo and in Brooklyn's Atlantic Yards case, which was turned away by the Supreme Court last year. Another eminent domain case heard by Sotomayor's court, Brody v. Village of Port Chester, involved condemnation to build a Stop-'n-Shop supermarket parking lot.

Sotomayor's appeals court handed property owner William Brody a partial victory in 2005, ruling that his due process rights were violated but not requiring Port Chester to reverse the condemnation. In fact, the Brody opinion (available for download here) states that judges should not weigh in on the merits of taking land for "public use":

[T]he role of the courts in enforcing the constitutional limitations on eminent domain is one of patrolling the borders. That which falls within the boundaries of acceptability is not subject to review.

What do Streetsblog Greater Greater Washington readers think about the Didden and Brody cases, and the role of eminent domain in community development?

Cross-posted from Streetsblog.

Elana Schor is Streetsblog's national reporter, covering federal transportation policy in Washington and nationwide. She has covered Capitol Hill for The Hill, The Guardian, and Talking Points Memo, and lives in Mount Pleasant. 


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I don't mind cross-posting from other blogs. But can you at least have the courtesy to refer to GGW by name, and not another community?

by Rob on May 29, 2009 8:44 pm • linkreport

Don't blame Elana. I copied the post over, and didn't notice and change that.

by David Alpert on May 29, 2009 8:47 pm • linkreport

no problem

by Rob on May 29, 2009 9:39 pm • linkreport

Eminent domain for roads (which includes transit) is constitutionally legitimate, though IMHO the Constitution should have required a greater then market value, to encourage more efficient routings that require less eminent domain. (Just look at the design evolution of the DC freeway system for a good background on this).

Eminent domain for private development though is not.

Paradoxically, Washington, D.C. favors it for the latter and not the former.

by Douglas Willinger on May 29, 2009 10:07 pm • linkreport

I learn more information from this site

by Hyderabad Pearls on May 30, 2009 12:45 am • linkreport

Using the power of the state for the benefit of the few is tyranny. Kelo was probably the worst single decision of the past century.

by Boots on May 30, 2009 9:21 am • linkreport


While I certainly disagree with Kelo I wouldn't go nearly that far.

by Steve on May 30, 2009 10:17 am • linkreport


Really? Don't forget that Locke's three inalienable rights were life, liberty and property. Property rights are one of the foundations of limited government.

by MPC on May 30, 2009 2:39 pm • linkreport

@ MPC: Yeah, and a lot of eminent domain suits have nothing to do with Constitutional rights, but with selfish NIMBY attitudes.

The problem is that many governments abuse eminent domain for cheap tax purposes by giving property to developers. On the other hand, many citizens abuse eminent domain for short-sighted selfish NIMBY reasons. In both cases the law is horribly abused and used against the sense in which it was meant. Unfortunately, the judiciary isn't very good in separating right from wrong.

by Jasper on May 30, 2009 8:23 pm • linkreport


Not sure what you are getting at. It's true not all eminent domain cases have anything to do with constitutional rights, but when the government takes private property for commercial development, that is always wrong. I'd agree that Kelo was one of the most horrifying decisions of my lifetime, if not the last hundred years.

by Nate on May 31, 2009 3:54 am • linkreport

@ Nate: I am trying to get to the point that eminent domain is only controversial because both the government and the public abuse the law for purposes that it is not intended for. You can hardly expect the judiciary then to behave appropriately either, can you? In a certain sense, they only represent the people indirectly...

by Jasper on May 31, 2009 11:00 am • linkreport

Eh, all the hubbub about Kelo showed a real misunderstanding of exactly what the SCOUTS ruled on. The facts and principles of the case really aren't all that controversial - the essential ruling was that economic development can be construed as having a public purpose under certain conditions, and this therefore is not inherently an unjust taking.

Furthermore, the Court specifically noted that these guidelines represent the broadest limit, and individual states (where the power of eminent domain actually lies) are free to take a more restrictive stance - in fact, many states already had such laws on the books.

The case essentially held up the status quo in terms of law. The political and populist backlash was more of a negative reaction to the circumstances of eminent domain than the actual law or principles therein.

by Alex B. on May 31, 2009 4:31 pm • linkreport


I agree that the eminent domain cases should probably have to pay substantially greater than fair market value.

As far as property rights in general go, I think that one of Heinlein's tax proposals was a beautifully simple way of regulating assets: everybody self-assesses their properties as worth "n" dollars, pays flat taxes on n, and automatically puts their property up for sale for n at the end of every fiscal year, for any taker.

As n is always more (perhaps many times more) than a mutually negotiated selling price, it fully replaces eminent domain, planning, and property taxation in a self-regulating way.

by Squalish on May 31, 2009 8:09 pm • linkreport

Kelo was an absolutely horrifying decision. It allows local officials (think corruptable, like DC Council and agencies) to take property from owners and give it to their favored developers. It also allows county officials to redevelop older black communities to build McMansion developments and strip malls. It was that type of "slum removal" or "economic development" program that turned Urban Renewal into Negro Removal in the eyes of many Americans.

We revolted against one such abomination - the North Central Freeway - and that's the only reason the Dupont Circle neighborhood remains intact today.

Everyone probably understands that eminent domain is necessary, but the potential for abuse is enormous, and it should be strictly regulated.

The right wingers are correct in their hatred of Kelo, and progressives should not cede this issue to them.

by Mike S. on Jun 1, 2009 10:21 am • linkreport

Am I the only one who agrees with the Kelo decision?

First of all, I'm not too keen on property rights. Property is not essential to limited government; in fact, property relies on government. It relies on government to guarantee a property owner that s/he has exclusive domain over the property and that no one else does. Without a strong government, property rights couldn't exist. People would just do what they want with others' property, and there'd be no one to make them stop.

But here's what the question boils down to: is it possible for private development to serve a public good? I think it'd be hard to argue that it can't. Think about it: grocery stores, pharmacies, offices, entertainment ... all of it serves (or at least can serve) the public good.

Now keep in mind that our government is a democracy, of the people, by the people, etc. So it's not like a few people living in a bubble make the decisions about what serves the public good and what doesn't. These people represent, and are accountable to, their constituents. So it would behoove them to make good decisions on such matters.

by Tim on Jun 1, 2009 10:31 am • linkreport

Alex's point is right on. My initial disgust at the Kelo decision was replaced by something a little more nuanced once I learned more about it. It wasn't a huge sea change in federal law — it was really upholding what was essentially the status quo, and allowing states to determine more restrictive standards for eminent domain. The decision was the best thing that happened for the far-right zero-government folks, though, drumming up more support than ever for multiple state and local initiatives that would have taken away the ability to use ED nearly at all. (I think it's a city in Arizona or perhaps statewide that now needs 100% agreement from all residents of a district to declare it a historic district. Basically ending the possibility.)

I would certainly much rather see ED used truly for the public good and not for private interests. Proponents of ED at-all-costs saw what popular opinion could do to restrict what can be a very useful tool following Kelo.

I'm not sure about having to pay more than fair market value, and how that would square with the takings clause of the Constitution. Paying more in ED cases than you would otherwise. But I'm no constitutional scholar. :)

by Steve on Jun 1, 2009 10:32 am • linkreport

"We revolted against one such abomination - the North Central Freeway - and that's the only reason the Dupont Circle neighborhood remains intact today."

Please find me the phantom NCF route that went to/through DuPont Circle.

by Douglas Willinger on Jun 1, 2009 11:48 am • linkreport

"So it's not like a few people living in a bubble make the decisions about what serves the public good and what doesn't. These people represent, and are accountable to, their constituents."


by NAB on Jun 1, 2009 3:22 pm • linkreport

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