The State of Eminent Domain in Rhode Island

You’ve probably heard of Kelo v. City of New London. This is the “eminent domain case” where the Supreme Court ruled that a city government can force you out of your home and sell it to someone else -- if the someone else claims that they can increase the tax-revenue generated by the property.

Note the title of the case. It’s Kelo v. City of New London, not Kelo v. State of Connecticut. If a local government can take property, a local government can restrict itself from taking property, right?

Cranston Mayor Steve Laffey thinks so. This past summer, Mayor Laffey introduced a resolution to the city council prohibiting the City of Cranston from engaging in any Kelo-like property seizures. Here is the active part of the resolution…

NOW, THEREFORE, BE IT RESOLVED that the City shall not exercise its power of eminent domain upon private residential property and transfer it to a private developer for the purpose of improving tax revenue or expanding the tax base or for the purpose of economic development.

NOW, BE IT FURTHER RESOLVED that the Mayor and City Council urge that the General Assembly enact legislation that the cities and towns of Rhode Island cannot exercise the power of eminent domain upon private residential property and transfer it to a private developer for the purpose of improving tax revenue or expanding the tax base or for the purpose of economic development.

The Cranston City Council was not 100% sure that Mayor Laffey's resolution was a good idea. Several councilmen thought that eminent domain policy was a state matter, not a local one. And, when addressing the state level, the council weakened the Mayor's proposal. They changed “enact legislation” to “form a study commission and/or enact legislation”. According to the minutes of July’s meeting of the Cranston City Council…

Council Vice-President McFarland stated that she does not support this Resolution for a number of reasons. One being, Representative Charlene Lima for the past two years has tried to pass this type of legislation….

Councilman Livingston stated that he feels there should be a study commission on the State level.

Councilman Lanni stated that this Resolution is a good idea, but it should be done at the State level and this issue needs further study.

On motion by Councilman Fung, seconded by Council Member Fogarty, it was voted to amend this Resolution as follows: last paragraph, second line, after the words “General Assembly”, add “form a study commission and/or”.

The Cranston City Council should clarify exactly what they believe needs study. Are there circumstances where they think eminent domain seizures for the purpose of increasing tax revenue are justified? And what are Councilman McFarland’s other reasons for opposing this measure, beyond saying that somebody else should do it for her?

The City Council minutes add one other interesting tidbit…

In March of this year, Representative Mumford asked for a study for eminent domain and Representative Lima recently introduced another legislation regarding this. There are three legislations currently pending that have not made it through the House of Representative.

If the House of Representatives won’t pass a law banning seizure of people’s homes for the purposes of increasing tax revenue, we may have found another reason why the citizens of Rhode Island need voter initiative as an alternative way to pass laws that are in their own best interests.

Here is the text of the resolution as introduced to the Cranston City Council by Mayor Laffey. I don’t there would be an objection if the citizens of Rhode Island wanted to use this as model for encouraging action in their own cities and towns.

Resolved, That

WHEREAS, the state law grants the City of Cranston the power of eminent domain to condemn property for any public purpose; and

WHEREAS, the Mayor and the City Council believe that the exercise of the City’s power of eminent domain should be balanced with the State and Federal Constitutional protections of private property; and

WHEREAS, on June 23, 2005, the U.S. Supreme Court in its decision in Kelo v. City of New London, found it permissible under the Fifth Amendment of the United States Constitution for a municipality to seize residential property and transfer it to a private developer in order to promote economic development, and

WHEREAS, the Mayor and the City Council respectfully disagree with the United States Supreme Court’s interpretation of “public use” in the Fifth Amendment of the United States Constitution,

NOW, THEREFORE, BE IT RESOLVED that the City shall not exercise its power of eminent domain upon private residential property and transfer it to a private developer for the purpose of improving tax revenue or expanding the tax base or for the purpose of economic development.

NOW, BE IT FURTHER RESOLVED that the Mayor and City Council urge that the General Assembly enact legislation that the cities and towns of Rhode Island cannot exercise the power of eminent domain upon private residential property and transfer it to a private developer for the purpose of improving tax revenue or expanding the tax base or for the purpose of economic development.