Our cases have generally identified three categories of takings that comply with the public use requirement, though it is in the nature of things that the boundaries between these categories are not always firm. Two are relatively straightforward and uncontroversial. First, the sovereign may transfer private property to public ownership–such as for a road, a hospital, or a military base. See, e.g., Old Dominion Land Co. v. United States, 269 U.S. 55 (1925); Rindge Co. v. County of Los Angeles, 262 U.S. 700 (1923). Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use–such as with a railroad, a public utility, or a stadium. See, e.g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U.S. 407 (1992); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30 (1916). But “public ownership” and “use-by-the-public” are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have allowed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. See, e.g., Berman v. Parker, 348 U.S. 26 (1954); Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).
You will all be reminded that the current eminent domain issue in Clarksville relates to the development of an access road. As such, we are not talking about the latter category, whereby "the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use." Rather, we are in the former, the transfer of private property to public ownership. This is the manner by which just about every road in our county was built.
This makes Greg Fox's proposed charter amendment (PDF) all the more squirrely. To the extent this amendment would prohibit eminent domain for the purpose of developing roads, I think it is a troublesome piece of legislation that would have repercussions (and significant litigation) far exceeding anything going on in the sleepy hamlet of Clarksville. To the extent roads would remain a permissible public use, as stated by the Supreme Court, Greg's amendment is so much sound and fury signifying nothing.
I agree with Council member Fox's intention in drawing attention to what would appear to be a concerning scuffle between private landowners and the County Executive over the Greenstone development. I also agree with Senator Kittleman that the Council has an easy choice going forward, which should be to cease all steps towards forcing this road. But why the phony amendment? Rather than work with the community and create a new proposal, we are grinding towards a stalemate that will maintain an unsightly patch of grass across from the River Hill Village Center. This community has made itself heard. Development should not come at the expense of Kendall's and Pizza Hut. A fake charter amendment won't stop that. A new plan, one that incorporates the community's interests and provides a pathway for Greenstone to develop, will.