Timothy B. Lee

The Post has an update on one of the most outrageous abuses of eminent domain in recent years: the blighting of a block of prosperous businesses in downtown Clayton:

On Jan. 19, St. Louis County Circuit Judge James R. Hartenbach agreed to allow Centene to use condemnation to acquire the properties. The owners say their properties are not blighted and should not be condemned. In a nonbinding referendum, Clayton voters expressed opposition to the use of eminent domain to benefit a private development.

Robert J. Schenk, a spokesman for Centene, said, "The properties that are the subject of litigation are still a critical part of the overall project. Without those properties, the project will not occur."

Schenk said, "The developers are busy working to ensure that the project can move forward as quickly as possible as soon as the litigation question has been addressed."

The properties in question are just a couple of blocks from our offices, and I've walked by them numerous time over the last two years. If they're "blighted," then every neighborhood in the state is blighted. Even more outrageous, these properties aren't even essential to Centene's new headquarters, they're slated to be used for upscale retail establishments. Apparently Centene simply didn't feel that the businesses currently occupying the space were high-class enough for its employees and clients to patronize, so they asked the city to bring in new, ritzier businesses.

In short, what is happening is precisely what Justice O'Connor predicted in her dissent in Kelo:

The logic of today's decision is that eminent domain may only be used to upgrade?not downgrade?property. At best this makes the Public Use Clause redundant with the Due Process Clause, which already prohibits irrational government action. The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.

But what about last year's eminent domain legislation? Wasn't it supposed to protect property owners? The legislation did substantially increase protection for farmers. But for the rest of us, all it had to offer was modest increases in compensation. The legislation left in place the absurdly lax standards for "blight" that essentially allows municipalities to condemn any property they want.

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