Property rights: not a given for churches

The Fifth Amendment to the US Constitution does allow governments to take property for public use - traditionally roads, schools, and parks. A half century ago, the use of eminent domain was expanded to include condemning blighted areas for redevelopment purposes. In recent decades, many citizens are decrying municipal actions to take property for economic development that might yield higher tax revenues than current uses.

In its brief in the Kelo case, the National League of Cities says that eminent domain is "often indispensable for revitalizing local economies, creating much-needed jobs, and generating revenue that enables cities to provide essential services."

For many public officials, that sounds exactly like a public use, even if direct benefit goes to private developers. It is a fundamental economic development tool for the long-term benefit of the community that must be protected, officials say.

As for potential abuses, "there are several checks on the indiscriminate use of eminent domain," says David Parkhurst, NLC's legislative counsel. "If the community doesn't like a certain decision, they can make that known at the ballot box. State law can prohibit its use beyond certain limits. And the media provide a spotlight and public scrutiny when such cases bubble up."

In Cypress, Calif., the Cottonwood Christian Center needed space for a burgeoning congregation and new ministries. In the 1990s, it spent five years assembling land parcels for an 18-acre site to build a large church complex. Cottonwood then went through a three-year process seeking permits to build on the purchased land. But church leaders learned the city had begun seeking a retailer - a large discount store - to locate on their land.

In 2002, when Cypress Redevelopment Agency moved to take the property by eminent domain and make it available to Costco, the church filed a lawsuit, citing violations of US and state constitutions and the 2000 federal law on religious land use. "This is something we hoped would not be necessary, but the city's actions left us no choice," said Pastor Bayless Conley.

Cottonwood's story has a happier ending than St. Luke's, however. A US district court judge granted an injunction preventing the city from seizing the property, saying there was strong evidence its actions "specifically aimed at discriminating against Cottonwood's religious uses." The judge also doubted that turning the land over to Costco was a public use.

"If revenue generation were a compelling state interest, municipalities could exclude all religious institutions from their cities," the judge wrote.

The city then worked out an agreement with Cottonwood amounting to a land swap; the church sold its property to the city and bought 28 acres of a neighboring golf course.

The question is which direction the court will go in Kelo and what impact it might have on such cases. Some expect new limits on government power. A landmark ruling on eminent domain at the state level - used for 20 years as precedent in many cases, including by the state court in Kelo - was reversed by the Michigan Supreme Court just six months ago.

In the 1983 decision in Poletown v. City of Detroit, the Michigan court approved the taking of 500 acres to sell to General Motors for a plant. Hundreds of homes and businesses and six churches were condemned. In July 2004, the court called the Poletown decision "a radical departure from constitutional principles" and overturned it in County of Wayne v. Hathcock.

"[I]f one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, mega-store or the like," the court said.

The US Supreme Court accepted the Kelo case shortly after the Michigan court rendered that decision.

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