Out of Bounds


  • Joseph Grundfest
Publish Date:
April 16, 2006
Publication Title:
New York Times, April 16, 2006, p. 14LI 9
Op-Ed or Opinion Piece
  • Joseph A. Grundfest, Out of Bounds, New York Times, April 16, 2006, p. 14LI 9.


IT would be funny if it weren’t so dangerous.

Like a mouse that roared, the tiny but rich Village of North Hills, threatens to set a precedent that can only terrify people who care about the sanctity of property rights under our Constitution.

North Hills is home to Deepdale, one of the nation’s most exclusive and beautiful golf courses. Deepdale’s members pay hefty initiations and annual dues and hail from around the United States and abroad. Only one member lives in North Hills, and village residents have no right to golf at Deepdale because it is private property. There are, however, over 50 courses within 15 miles — of which 11 are public.

The mayor of North Hills, however, proposes to condemn Deepdale through eminent domain. But rather than turn it into housing, a hospital, schools or even a highway cloverleaf, as is usually the case, the mayor wants to keep Deepdale as a golf course and require its new members to own property in the village.

The Fifth Amendment to the Constitution provides that private property shall not “be taken for public use, without just compensation.” In a controversial 5-4 decision handed down last June, the Supreme Court upheld a plan by New London, Conn., to take private property from one private owner and give it to another as part of the creation of an urban redevelopment zone. Officials decided that the redevelopment zone was a reasonable effort to deal with the economic distress that gripped New London after major employers left, in part because it transformed the property’s use.

Applying that precedent to Deepdale would require a careful and constitutionally complicated analysis of whether condemning a golf course owned by outsiders to turn it into a golf course owned by friends and neighbors is a legitimate “public use” and whether the government’s rationale for such a taking is authentic or merely a pretext for an unconstitutional purpose.