Abstract
The final clause of the Fifth Amendment to the United States Constitution states “Nor shall private property be taken for public use, without just compensation.” This “Takings Clause” forms the constitutional foundation for eminent domain: “governmental power to take private property for public use” (p. 4). The ability of a government to take private property is one of the most serious exercises of administrative power affecting individuals’ lives, so it is not surprising that eminent domain should be constitutionally restricted in its purpose (“public use”) and manner (“just compensation”).
Eminent domain is intrinsically controversial, because it pits the rights of government (acting for the community as a whole) against those of private property owners. The Takings Clause does not resolve these conflicts, but rather raises more questions. What really is “public use”? What constitutes “just compensation”? What constitutes a “taking”? And who should decide? These questions have increased in significance as governments have taken a growing role in economic development, environmental restrictions on the use of private land, and exploitation of natural resources.
Amanda Olejarski’s short book, Administrative Discretion in Action: A Narrative of Eminent Domain (Lanham, MD: Lexington Books, 2013), focuses on the Supreme Court’s 2005 decision in Kelo v. New London that determined that economic development was a public purpose justifying the exercise of eminent domain, even if a large portion of the private property was acquired for construction by a private company (p. 40). In 1990, the State of Connecticut designated the City of New London as a “distressed municipality,” a situation aggravated 6 years later by the closing of the Naval Undersea Warfare Center. In 1998, the State set up the New London Development Corporation (NLDC) and approved bond funding for it to conduct redevelopment planning and to build a park in the area. As a critical part of the redevelopment effort, the pharmaceutical giant Pfizer agreed to build a US$300 million research and development facility in the Fort Trumbull neighborhood, and there were plans for a variety of other private developments including new residences, a conference hotel, restaurants, and retail services (p. 40). The city granted the NLDC the power of eminent domain, which they used to “take” several private residences in the neighborhood; a homeowner, Susette Kelo, sued and lost the case.
Olejarski does an admirable job of clarifying the constitutional and legal issues of the Kelo case. But as the title of the book denotes, its main focus is on how that decision has affected the practical implementation of eminent domain. Several aspects of the decision were by no means clear-cut, implying considerable room for local officials to exercise administrative discretion, that is, their informal authority or ability to interpret policies, laws and statutes (p. 21).
In contrast to earlier unanimous leading precedents, the Court was divided (pp. 5-4). Justice O’Connor had previously delivered the Court’s unanimous opinion in its landmark ruling in 1984 that upheld “the notion that eminent domain is constitutional even when private property is taken and then transferred to a private benefit” (p. 39). Just over 20 years later, she wrote the dissenting justices’ opinion in Kelo that embraced the idea that after Kelo, any private property was unsafe because it could be taken “simply because the state identified an alternative use that would be more beneficial to the public or a range of parties,” since “nearly all private property could potentially generate some form of public benefit” (p. 42). In her view, Kelo effectively deleted the public use standard from the Takings Clause.
However, the Court also stated that “We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power,” thus handing “decisions regarding the use of eminent domain for economic development right back to the states” (p. 41). Since then, 43 states have enacted new or revised eminent domain legislation. Often these statutes are vague or use conflicting language (p. 5).
Finally, the exercise of eminent domain in the Kelo case itself lacked transparency and accountability. Community members felt that the city council and the NLDC had failed to inform them about the process and thus they had had no real opportunity to contest the substantive issues. The NLDC, as a public–private partnership organization, was neither representative nor responsible to the local community, having been set up by the State and granted authority without provision for public accountability (p. 28).
These three issues—the broad interpretation of public purpose, the deference of the Supreme Court to state laws, and the use of public–private partnerships with blurred if any public accountability—have, in Olejarski’s words, “resulted in fertile ground for the study of administrators actually involved in the interpretation and implementation of eminent domain policies” (p. 5). Because of the vagueness of the policy guidance from legislation and judicial decisions, their discretion may play a key role in government taking of private property. She sees Kelo as a case study to educate interested individuals in an important area of government activity, to explore administrators’ use of discretion, and to facilitate dialogue over a controversial issue between practitioners and community members.
While the first two parts of the book are concerned primarily with the legal cases and problems of eminent domain, the third part (roughly half the book) focuses on people—the perspectives of citizens of New London, and practitioners and elected officials. The research was carried out in 2009 through a combination of a survey of 142 local government officials, 19 extended interviews with public administrators throughout Connecticut, and 7 with community members.
Olejarski’s research presents a wealth of detail and interpretation on the practice of eminent domain, and lack of space prevents more than presentation of only a few of her observations and insights. Most respondents to the survey appeared to be familiar with Kelo and the statutes involved, and generally understood and supported eminent domain and its justification. Nearly three quarters disagreed with its use for private development, but respondents were almost evenly divided on “takings” for economic development (p. 71), implying that this issue is likely to continue to be controversial. But despite the expansion of interpretation of “public use” in Kelo, it appeared that most administrators saw eminent domain as a last resort and tried to avoid it where possible, particularly through pre-condemnation negotiations (p. 105).
As Olejarski continued her interviews, she found that administrators were involved in balancing concerns for bettering the community (responsibility), and political fallout and lack of public support (responsiveness) (p. 77). She found four types of administrators based on their use of discretion in the context of these dimensions, together with their location in urban or rural areas and historical uses of eminent domain (pp. 78-80). Her descriptions provide further insights into the different ways these practitioners tried to balance responsibility and responsiveness in using their discretion (p. 109).
Olejarski asked where practitioners looked for guidance for their decisions. In addition to the usual sources, such as statutes, she found considerable reliance on peers and colleagues (rather than on direct supervisors). Administrators also worked closely with elected officials, and turned to professional organizations and conferences, still a relatively narrow circle. But Kelo had heightened public concern about the potential new power of eminent domain, and, according to several interviewees, was prompting administrators to act proactively to build political and community support for projects, to ensure transparency, and to consult and involve the public (p. 93).
Most practitioners agreed that they would not persist with a project against the political will of the community, and that they would follow the will of the public. But “a handful” maintained that some circumstances would require administrators to act against the public will for the public interest (p. 95). Where negotiations failed, and these administrators were faced with the question of how to get redevelopment to happen without either private or public funding, their answer was “creative use of public–private partnerships,” to bring in private money for development, to gain tangible benefits for the community, as well as increased tax revenues and job growth (pp. 95-96). Olejarski does not discuss eminent domain aspects of public–private partnerships in depth, but does note questions of accountability and transparency (p. 28).
Olejarski concludes that the impact of Kelo, at least in Connecticut, has been mitigated and offset by practitioners’ discretion. Throughout the book, she emphasizes the vital role of administrative discretion in public policy making, and thus the importance of practitioners’ values and ethics, professionalism, responsibility, and responsiveness.
Administrative Discretion in Action is an exceptionally interesting book, written in a clear, informal style. In her focus on a single court case, Professor Olejarski has contributed practical insights, critical analysis and reflection, depth of understanding, and many questions for further case studies. The book’s significance extends beyond eminent domain, as an excellent resource for practitioners, community members, elected officials, and students of public administration.