Cross-8e: Case Problem with Sample Answer
Chapter 26: Real Property and Land-Use Control
26–6. Question with Sample Answer: Eminent Domain.
The Hope Partnership for Education, a religious organization, proposed to build a private independent middle school in a blighted neighborhood in Philadelphia, Pennsylvania. In 2002, the Hope Partnership asked the Redevelopment Authority of the City of Philadelphia to acquire specific land for the project and sell it to the Hope Partnership for a nominal price. The land included a house at 1839 North Eighth Street owned by Mary Smith, whose daughter Veronica lived there with her family. The Authority offered Smith $12,000 for the house and initiated a taking of the property. Smith filed a suit in a Pennsylvania state court against the Authority, admitting that the house was a “substandard structure in a blighted area,” but arguing that the taking was unconstitutional because its beneficiary was private. The Authority asserted that only the public purpose of the taking should be considered, not the status of the property’s developer. On what basis can a government entity use the power of eminent domain to take property? What are the limits to this power? How should the court rule? Why? [Redevelopment Authority of City of Philadelphia v. New Eastwick Corp., 588 Pa. 789, 906 A.2d 1197 (2006)]
Sample Answer:
Under the U.S. Constitution, the government has the right to acquire possession of real property for public use. The power of eminent domain is limited to the taking of property for public use, though the United States Supreme Court (in the Kelo decision) has allowed the taking of private property to further economic development in blighted, or distressed, areas. The idea is that allowing the government to take private property and give it to private developers benefits the public by revitalizing the community. Since the Kelo case, however, there has been a lot of controversy and backlash over this use of the government’s power of eminent domain. Many people and courts feel that it is unfair for the government to take one person’s property and give it to another. In this case, although Smith admitted that the property was substandard and in a distressed area, the government intended to take the property to be used to develop a private religious school, which is not in the public interest. Moreover, a government taking of private property to support or develop a religious school may be an unconstitutional violation of the Constitution’s establishment clause. Smith therefore has a strong argument that the taking was not for a public purpose at all, and the court should rule in Smith’s favor on the issue.