NEW ORLEANS – The Louisiana Supreme Court is currently addressing a case that is questioning whether the Louisiana Constitution forbids the taking of private property through eminent domain for the purpose of economic development.
Pacific Legal Foundation’s (PLF) recent brief argues that the Louisiana Constitution’s “Public Purpose Clause” should be construed narrowly and should forbid the use of eminent domain for economic development.
In a blog from PLF published on July 8, Raymond Nhan argued that despite overwhelming support for the 2005 decision of Kelo v. City of New London, it has not stopped state and local governments from seeking to take private property for private gain.
In the case of Kelo v. City of New London, residential properties in certain areas of New London, Connecticut were condemned to make way for a new Pfizer plant that was supposed to increase economic growth. There was no allegation that residential properties were blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.
Petitioners, who were homeowners of “condemned” properties, claimed, among other things, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment.
Nhan explained that Louisiana is now facing similar issues.
“In Louisiana, the St. Bernard Port, Harbor, and Terminal District is trying to condemn the property of Violet Dock Port, a business that operates an industrial port facility, so that the district can transfer the property to Associated Terminals, another private company,” he said.
Nhan explained, however, that the district approved the taking because Associated Terminals claimed that it will improve some of the facilities that are on Violet Dock Port’s property.
Regardless of its promises, Nhan argues that it looks like the “Kelo style taking that drew the ire of the public in 2005.”
Nhan also explained that the PLF brief stresses how lax eminent domain standards benefit special interest groups at the expense of poor and minority communities. Furthermore, broad eminent domain powers provide special interest groups an incentive to engage in rent seeking at the expense of the public interest.
“Historical and contemporary events show that eminent domain use disproportionately burdens poor and minority communities,” the brief said. “Allowing eminent domain to be used for mere economic development in any circumstance would eviscerate the limitations on government power inherent in the public purpose clause.”
PLF also argues that redevelopment plans regularly destroy communities rather than revitalize them and governments regularly oversell their promises with no real results.
“Property owners should not be vulnerable to eminent domain abuse just because they are not wealthy or well-connected,” Nhan said. “Hopefully, the Louisiana Fourth Circuit Court of Appeal agrees with this principle and holds that the district’s taking violates its Public Purpose Clause.”
By construing the Public Purpose Clause narrowly, PLF said, it will minimize the negative consequences of eminent domain use. Such a lax reading of the Public Purpose Clause is problematic because there is no guarantee that a taking will lead to any future development or the alleged claimed economic benefits.
PLF’s brief concluded that the court should construe the Public Purpose Clause narrowly in order to minimize the harm to the settled expectation of land owners and to avoid collateral harms caused by an expansive application of the power of eminent domain.
“At a minimum, the court should hold that St. Bernard’s expropriation of VDP’s property for the benefit of Associated Terminals violates the Public Use Clause because it is an A to B transfer,” PLF said. “Accordingly, the district court should be reversed.”