Eminent Domain for Private Gain? The Kelo v. City of New London Decision and Aftermath
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Reprinted with permission from Planning & Environmental Law, American Planning Association
copyright 2005 by the American Planning Association Planning & Environmental Law
September 2005 Vol. 57, No. 9 | p.3
Commentary
Eminent Domain for Private Gain?
The Kelo v. City of New London
Decision and Aftermath
Brian W. Blaesser
Situated in southeastern Connecticut on acquire property through eminent domain based on the authorization in
Long Island Sound, the City of New exercised in the city’s name. Connecticut’s municipal development
London had experienced decades of eco- There are seven parcels in the plan. statute2 and, relying on the U.S. Supreme
nomic decline resulting in large part from Parcel 1 will be a waterfront conference Court’s decisions in two principal cases
the federal government’s decision in 1996 hotel. Parcel 2 will contain 80 new resi- (discussed below). The Connecticut
to close the Naval Undersea Warfare dences. Parcel 3 will consist of 90,000 Supreme Court held that such economic
Center located in the Fort Trumbull area— square feet of office space for research and development constituted a valid public
a loss of 1,500 jobs. In 1998, with state development. Parcel 4A (2.4 acres adjacent use under both the federal and state con-
assistance in the form of a $5.35 bond issue to the park) will be devoted to parking or stitutions.3 Three of the justices dis-
to support city economic development retail services for visitors. Parcel 4B will be sented, arguing for a “heightened” stan-
planning for the Trumbull area and a $10 a renovated marina and river walk. Parcels dard of judicial review for takings for
million bond issue to help create the Fort 5, 6, and 7 will be developed for office and economic development. They argued that
Trumbull State Park, the city reactivated a retail space, parking, and water-dependent the city had not presented “clear and
private nonprofit entity, the New London commercial uses. convincing evidence” that the projected
Development Corporation (NLDC), to The city said the plan would create economic benefits would, in fact, occur.4
prepare an economic development plan for 1,000 jobs, increase property tax revenues,
the Fort Trumbull area. When later that and revitalize an economically depressed THE SUPREME COURT DECIDES
same year the pharmaceutical company, area. In November 2000, after negotia- The U.S. Supreme Court granted certio-
Pfizer, announced plans to build a major tions to purchase the properties of nine rari in the case in order to address the
research facility adjacent to Fort Trumbull, landowners in the area failed, the NLDC question of whether the city’s decision to
city planners saw the potential for the facil- commenced condemnation proceedings. take property for the purpose of eco-
ity to draw new businesses to the area and The affected landowners, who alto- nomic development satisfies the “public
to help stimulate economic development gether owned four properties in Parcel 3 use” requirement of the Fifth Amend-
there. and eleven properties in Parcel 4A, ment. In a 5-4 decision written by Justice
After a process of state agency sought to enjoin the takings under the Stevens, the Court affirmed the
reviews and approvals, the NLDC final- “public use” clauses of both the U.S. and Connecticut Supreme Court’s determina-
ized the plan for a 90-acre portion of the Connecticut Constitutions and secured tion that the takings to implement the
Fort Trumbull area, consisting of 115 pri- partial relief at the trial court level. The economic development plan satisfied the
vately owned properties as well as 32 trial court granted a permanent restrain- public use requirement.5
acres formerly owned by the Navy ing order prohibiting the taking of the Relying on the Court’s prior eminent
(Trumbull State Park now occupies 18 of properties located in Parcel 4A, but domain jurisprudence, chiefly its deci-
those 32 acres). In January 2000, the city denied them relief as to Parcel 3. sions in Berman and Midkiff, the majority
council approved the plan and designated Both sides appealed to the first reaffirmed two guiding principles: (1)
the NLDC as its development agent with Connecticut Supreme Court, which held Public use may be equated with public
the power to purchase property or to that the proposed takings were valid1 purpose; and (2) judicial deference to leg-
Brian Blaesser is a partner at the law firm of Robinson & 1. Kelo et al v. City of New Katz, J., concurring in part
Cole LLP and co-chair of the firm’s Land Use Group. He is a London, 843 A.2d 500 (2004). and dissenting in part).
co-author of Federal Land Use Law & Litigation ( T h o m s o n -
2. CONN. GEN. STAT. SEC. 8- 5. Kelo et al v. City of New
West: 2005 ) and Condemnation of Property: Practice and
186 et seq. (2005). London, 125 S. Ct. 2655
Strategies for Winning Just Compensation (Wiley Law
3. Kelo, 843 A.2d at 527. (2005).
Publications: 1994). Mr. Blaesser is a reporter for Planning &
Environmental Law. The opinions expressed herein are those 4. Id., at 587-588 (Zarella, J.,
of the author and do not necessarily re p resent the views of joined by Sullivan, C.J., and
Robinson & Cole or its clients.American Planning Association
Planning & Environmental Law
September 2005 Vol. 57, No. 9 | p.4
The Kelo opinions reflect three distinct positions on the question
of the “public use” requirement under the Fifth Amendment.
islative determinations of public purpose. First, the sovereign may transfer pri- the majority, that the city would be “for-
Applying these two principles, the major- vate property to public ownership— bidden from taking petitioners’ land for
ity found that the city’s economic devel- such as for a road, hospital, or a mili- the purpose of conferring a private benefit
opment plan, in fact, served a public pur- tary base.8 . . . [Second], [t]he on a particular private party, citing Midkiff
pose. The majority based its conclusion sovereign may transfer private prop- (“A purely private taking could not with-
that the city’s economic development erty to private parties, often common stand the scrutiny of the public use
plan served a public purpose on three carriers, who make the property avail- requirement; it would serve no legitimate
principal reasons found in the record able for the public’s use—such as purpose of government and would thus be
below: (a) The plan was an integrated, with a railroad, public utility, or a sta- void”).14 Having articulated that proposi-
comprehensive plan; (b) The plan was dium.9 . . . [Third], we have allowed tion, a “polar” proposition from the propo-
thoroughly deliberated prior to adoption; that, in certain circumstances and to sition of condemnation for future “use by
and (c) The private developers were meet certain exigencies, takings that the public,” the majority noted that when
required by contract to carry out the pro- serve a public purpose also satisfy the the Court began applying the Fifth
visions of the plan.6 Constitution even if the property is Amendment to states at the close of the
10
The K e l o opinions reflect three distinct destined for subsequent private use. 19th century, it “embraced the broader
positions on the question of the “public and more natural interpretation of public
use” requirement under the Fifth The first two categories were irrelevant use as ‘public purpose.’”15
Amendment. Justices Stevens, Souter, to the facts in Kelo, and the majority spent To bolster the conclusion that public
Ginsburg, and Breyer, joined in a concur- little time addressing them except to note use is equivalent to public purpose, the
rence by Justice Kennedy, reflect the that this was not a case in which the city majority cited both Berman v. Parker16 and
majority opinion that economic develop- planned to open the condemned land for Hawaii Housing Authority v. Midkiff17as
ment is, per se, a public use. Justice use by the general public, nor a case in precedent to support its view that the
O’Connor’s dissent, joined by Chief Justice which the private lessees would be court must be deferential to the legisla-
Rehnquist and Justices Scalia and Thomas, required to operate like common carriers tive body’s judgment in the field of emi-
reflects the view that economic develop- making their services available to the pub- nent domain. The Court also cited to
ment takings are unconstitutional. Finally, lic. Citing the Court’s decision in Midkiff, Ruckelshaus v. Monsanto, Co.,18 which it
Justice Thomas, in his dissent, argues that the Court added that it had “long ago described as “another public use case that
the public use clause means exactly what it rejected any literal requirement that con- arose in a purely economic context.”19 In
says; namely, the public must in fact, “use” demned property be put in to use for the that case, the Court held that the Envi-
the property taken pursuant to eminent general public.”11 ronmental Protection Agency could con-
domain.7 The following discussion of the Moreover, said the Court, the “use by sider the data (including trade secrets)
majority’s reasoning weaves in Justice the public” test proved to be difficult to submitted by a prior pesticide applicant
O’Connor’s dissenting view to highlight administer (“e.g., what proportion of the in evaluating a subsequent application so
issues that may come before the high court public need have access to the property? long as that subsequent applicant paid
and lower courts, as well as state legisla- At what price?”). Such a test, according just compensation for the data. Under the
tures and local governments. to the Court, also proved to be “impracti- reasoning of Berman and Midkiff, the
cal given the diverse and always evolving Ruckelshaus Court had upheld the statute
Three Categories of Takings needs of society.”12 under which the EPA had considered
Justice O’Connor’s dissenting opinion The differences between the majority such data noting that Congress believed
provides the most useful framework for and Justice O’Connor were most apparent that sparing the applicants the cost of
understanding the majority’s opinion. In in the discussion about the scope of the time-consuming research eliminated a
her dissent, she noted that the Court’s third category. The majority began its significant barrier to entry in the pesti-
cases have generally identified three cate- analysis by identifying a proposition that cide market and, therefore, enhanced
gories of takings that comply with the was “perfectly clear,” noting that “it had competition.
public use requirement, while quickly long been accepted that the sovereign
noting that it is the boundaries between may not take the property of A for the Federalism and the Evolving Needs
these three categories that are not always sole purpose of transferring it to another of Society
firm. Justice O’Connor described these private party B, even though A is paid just The majority concluded that, when
13
three categories as follows: compensation.” There is no doubt, said viewed as a whole, its jurisprudence has
6. Id. at 2665 and 2666, n.15. acknowledges the private-to- 9. Kelo et al v. City of New U.S. 30 (1916). 12. Kelo, 125 S. Ct. at 2662 18. 467 U.S. 986 (1984).
7. Because Justice Thomas’s private type of eminent London, 125 S. Ct. 2655, 10. For this third category, (2005). 19. Kelo, 125 S. Ct. at 2664.
dissent urges a literal interpre- domain action may be consti- 2673 (2005) (O’Connor, J. dis- Justice O’Connor cited to 13. Id. at 2661.
tation of the public use tutional in certain limited cir- senting), citing to National Berman v. Parker, 348 U.S. 14. Id. citing Midkiff, 467 U.S.
requirement that would prohibit cumstances. Railroad Passenger 20 (1954) and Hawaii Housing at 245.
the use of eminent domain 8. Citing to Old Dominion Corporation v. Boston & Authority v. Midkiff, 467 U.S.
Maine Corp., 503 U.S. 407 15. Id. at 2662.
under the facts of Kelo, this Land Co. v. United States, 269 229 (1984).
article focuses on Justice U.S. 55 (1925), and Rindge (1992), Mt. Vernon-Woodberry 16. 348 U.S. 26 (1954).
11. Hawaii Housing Authority
O’Connor’s dissent, joined by Co. v. County of Los Angeles, Cotton Duck Co. v. Alabama 17. 467 U.S. 229 (1984).
v. Midkiff, 467 U.S. 229, 244
Justice Thomas, in which she 262 U.S. 700 (1923). Interstate Power Co., 240
(1984).American Planning Association
Planning & Environmental Law
September 2005 Vol. 57, No. 9 | p.5
The majority concluded that, when viewed as a whole, its jurispru-
dence has “recognized the needs of society have varied between dif-
ferent parts of the Nation, just as they have evolved over time in
response to changed circumstances.”
“recognized the needs of society have form a whole greater than the sum of If legislative prognostications about
varied between different parts of the its parts. To effectuate this plan, the the secondary public benefits of a
Nation, just as they have evolved over city has invoked a state statute that new use can legitimate a taking, there
time in response to changed circum- specifically authorizes the use of emi- is nothing in the Court’s rule or in
stances.”20 Tied to this is the concept of nent domain to promote economic Justice Kennedy’s gloss on that rule to
federalism—the principle of giving great development. Given the comprehen- prohibit property transfers generated
deference to state legislatures and state sive character of the plan, the thor- with less care, that are less compre-
courts in defining local public needs. ough deliberation that preceded its hensive, that happen to result from a
Specifically, the Court stated: adoption, and the limited scope of our less elaborate process, whose only
review, it is appropriate for us, as it projected advantage is the incidence
For more than a century, our public was in Berm a n, to resolve the chal- of higher taxes, or that hope to trans-
use jurisprudence has widely lenges of the individual owners, not form an already prosperous city into
eschewed rigid formulas and intrusive on a piecemeal basis, but rather in an even prosperous one.26
scrutiny in favor of affording the leg- light of the entire plan. Because that
islatures broad latitude in determin- plan unquestionably serves a public Rejection of Bright-Line Rule and Harm
ing what public needs justify the use purpose, the takings challenged here, Prevention Test
of a takings power.21 satisfy the public use requirement of The majority refused to adopt the
24
the Fifth Amendment. Petitioners’ request to establish a
From this principle, the majority con- bright-line rule that economic develop-
cluded that a program of economic rejuve- The majority’s emphasis on the plan’s ment per se is not a public use. The
nation was entitled to its deference, partic- comprehensiveness and the value of coor- majority reasoned that not only is the
ularly where the city had carefully dinating uses as a whole is an important promotion of economic development a
formulated an economic development plan key to understanding the Court’s holding. traditional and long accepted function of
that it believed would bring “appreciable The fact that the record below evidenced government, but there is no “principled
benefits” to the community, including new the comprehensive character of the eco- way of distinguishing economic devel-
jobs and increased tax revenue. nomic development plan was important opment from the other public purposes
to the Court in answering the Petitioners’ that we have recognized.”27
The Importance of Plan Comprehensiveness argument that without a per se rule Justice O’ Connor’s dissent. In her dis-
As noted above, the majority’s review of rejecting economic development as a sent, it seems to me that Justice
the record indicated that the economic public use, nothing would prevent the O’Connor would also appear to have pro-
development plan was comprehensive in city from transferring citizen A’s property posed a bright-line rule by asking rhetori-
nature, and thoroughly deliberated.22 It is to citizen B solely because citizen B will cally, “Are economic development tak-
not surprising to me that Justice Stevens, put the property to more productive use, ings constitutional? I would hold that
the Justice on the Court with perhaps the thus generating more taxes. The Court they are not.”28
most knowledge of land use and urban said: “Such a one-to-one transfer of prop- Despite the simple principle
planning, analogized the City of New erty, executed outside the confines of an expressed by Justice O’Connor in this
London’s economic development plan- integrated development plan, is not pre- statement, her analysis, in fact, places
ning to the type of urban land use plan- sented in this case.”25 emphasis on finding “harm prevention”
ning and development upheld by the Justice O’Connor’s dissent. Justice as a basis for justifying the use of emi-
Supreme Court in the 1926 case of Village O’Connor criticized the majority’s place- nent domain to take from one private
of Euclid v. Ambler Realty.23 In his majority ment of special emphasis on the facts of party and give it to another private party.
opinion, Justice Stevens stated: the New London case, particularly the In her view, in the Berman case, the
comprehensiveness of the plan and the Court upheld Congress’s decision to elim-
As with other exercises with urban fact that it was the product of a careful, inate “harm” to the public emanating
planning and development [citing to deliberative process that did not involve from the blighted neighborhood, and
E u c l i d], the city is endeavoring to an isolated property transfer. None of Congress’s determination to “treat the
coordinate a variety of commercial, these facts, in her judgment, had “legal neighborhood as a whole rather than lot-
residential, and recreational uses of significance” to limit the effect of the by-lot.”29 In Midkiff, according to Justice
land, with the hope that they will Court’s holding. In her view: O’Connor, the purpose was to eliminate a
20. Id. 27. Id. at 2665.
21. Id. 28. Id. at 2673 (O’Connor, J.,
22. Id. at 2665. dissenting).
23. 272 U.S. 365 (1926). 29. Id. (O’Connor, J., dissent-
ing).
24. Kelo, 125 S. Ct. at 2665.
25. Id. at 2667.
26. Id. at 2676-2677
(O’Connor, J., dissenting).American Planning Association
Planning & Environmental Law
September 2005 Vol. 57, No. 9 | p.6
The majority also found support in its recent decision, Lingle v.
Chevron U.S.A. Inc. , in which it explained why similar practical con-
cerns led it to decide to eliminate the “substantially advances” for-
mula in its regulatory takings doctrine.
public harm caused by the oligopoly of tially advances” formula “would to disaggregate from the promised pub-
30
land ownership. In her view, the major- empower–and might often require–courts lic gains in taxes and jobs. Even if
ity’s decision moved away from decisions to substitute their predictive judgments for there were a practical way to isolate the
“sanctioning the condemnation of harm- those of elected legislatures and expert motive behind a given taking, the ges-
ful property use.”31 agencies.”36 Emphasizing that the orderly ture towards a purpose test is theoreti-
The majority, however, termed Justice implementation of a “comprehensive” cally flawed. If it is true that incidental
O’Connor’s view a “novel theory,” noting redevelopment plan necessitates establish- public benefits from new private use
that “[t]here was nothing ‘harmful’ about ing the legal rights of all interested parties are enough to ensure the “public pur-
the non-blighted department store at up front, the Court in K e l o stated: pose” in a taking, why should it matter,
issue in Berman . . . ; nothing ‘harmful’ as far as the Fifth Amendment is con-
about the lands at issue in the mining The disadvantages of a heightened cerned, what inspired the taking in the
and agricultural cases, and; . . . certainly form of review are especially pro- first place? How much the government
nothing ‘harmful’ about the trade secrets nounced in this type of case. Orderly does or does not desire to benefit a
owned by the pesticide manufacturers in implementation of a comprehensive favored private party has no bearing on
Monsanto.”32 In the majority’s view, redevelopment plan obviously requires whether an economic development
Justice O’Connor’s “intimation that a that the legal rights of all interested taking will or will not generate second-
‘public purpose’ may not be achieved by parties be established before new con- ary benefit for the public.39
the action of private parties . . . confused struction can be commenced. A consti-
the purpose of a taking with its mechanics, tutional rule that required postpone- Justice O’Connor acknowledged that the
33
a mistake we warned of in Midkiff.” ment of the judicial approval of every judiciary cannot get “bogged down in pre-
condemnation until the likelihood of dictive judgments about whether the public
Incidental Public Benefits of Taking success of the plan had been assured will actually be better off after a property
Petitioners argued, in the alternative, that would unquestionably impose a signifi- transfer.”40 She argued, however, that
for a taking to satisfy the public use require- cant impediment to the successful con- implicit in the majority’s opinion that it can-
37
ment in the case of an economic develop- summation of such plans. not make predictive judgments about the
ment plan there should be “reasonable cer- wisdom of legislative determinations, is the
Justice O’Connor’s dissent. Justice
tainty” that the expected public benefits limitation that eminent domain may only be
O’Connor sharply rejected the majority’s
will actually accrue. Such a rule, however, used to “upgrade–not downgrade–prop-
reluctance to second-guess the predictive
said the majority, would constitute an even erty.”41 According to Justice O’Connor, this
judgments of elected legislatures in this
greater departure from the Court’s prece- limitation makes the Public Use Clause
type of eminent domain case. “To reason, as
dent than Petitioners argument for a “redundant” with the Due Process Clause.
the Court does,” wrote Justice O’Connor,
“bright-line” rule. Said the Court: Since the latter already prohibits irrational
“that the incidental public benefits resulting
When the legislature’s purpose is government action, a rational relationship
from this subsequent ordinary use of private
legitimate and its means are not irra- test under the Public Use Clause, in her
property render economic development tak-
tional, our cases make clear that view, “has no realistic import.”42
ings ‘for public use’ is to wash out any dis-
empirical debates over the wisdom of tinction between private and public use of
Justice Kennedy’s Concurrence
takings–no less than debates over the property–and thereby effectively to delete
wisdom of other kinds of socioeco- Justice Kennedy’s concurring opinion is
the words ‘for public use’ from the Takings
important for what it clarifies regarding the
nomic legislation–are not to be car- Clause of the Fifth Amendment.”38 Justice
ried out in the federal courts.34 majority’s opinion as well as for what it sug-
O’Connor further explained her disagree-
gests might be an approach that the Court
ment with the Court’s reasoning, stating:
The majority also found support in its would take in future cases. More clearly
recent decision, Lingle v. Chevron U.S.A. The trouble with economic develop- than the majority does, Justice Kennedy
Inc.,35 in which it explained why similar ment takings is that private benefit and acknowledges that the Court’s prior
practical concerns led it to decide to elimi- incidental public benefit are, by defini- jurisprudence in Midkiff and B e rm a n, which
nate the “substantially advances” formula tion, merged and mutually reinforcing. upholds takings under the Public Use
in its regulatory takings doctrine. In Lingle, In this case, for example, any boon for Clause so long as they are “rationally
43
the Court concluded that the “substan- Pfizer or the plan’s developer is difficult related to a conceivable public purpose,”
30. Id. at 2674 (O’Connor, J., 2074, 2085 (2005). 40. Id. at 2676 (O’Connor, J.,
dissenting). 36. Kelo, 125 S. Ct. at 2667, dissenting).
31. Id. at 2675 (O’Connor, J., citing Lingle, 125 S. Ct. at 41. Id. (O’Connor, J.,
dissenting). 2085. dissenting).
32. Id. at 2666, n. 16. 37. Id. at 2668. 42. Id. (O’Connor, J.,
33. Id. 38. Id. at 2671 (O’Connor, J., dissenting).
34. Id. at 2667, quoting dissenting). 43. Hawaii Housing Authority
Midkiff, 467 U.S. at 242 39. Id. at 2675-2676 v. Midkiff, 467 U.S. 229, 241
(1984). (O’Connor, J., dissenting). (1984)
35. 544 U.S. __, 125 S. Ct.American Planning Association
Planning & Environmental Law
September 2005 Vol. 57, No. 9 | p.7
New standard? Whether or not one likes the decision of the Supreme
Court, it arguably is a stretch to characterize the Court’s decision in K e l o
as a new standard in light of the Court’s eminent domain jurisprudence.
is a deferential standard of review that with only incidental or pretextual public ties,” a court may review the record to
“echoes the rational-basis test to review justifications.”45 Justice Kennedy cites see if it has merit but still with “the pre-
economic regulation under the Due with approval the trial court’s observation sumption that the government’s actions
44
Process and Equal Protection Clauses.” that “[w]here the purpose [of a taking] is were reasonable and intended to serve a
In Justice Kennedy’s view, a Court economic development and that the public purpose.”47
applying this rational-basis review under development is to be carried out by pri- Justice O’Connor’s dissent. Justice
the Public Use Clause should “strike down vate parties or private parties will be bene- O’Connor faults Justice Kennedy for fail-
a taking that, by a clear showing, is fited, the Court must decide if the stated ing to specify “what the Court should
intended to favor a particular private party, public purpose–economic advantage to a look for in a case with different facts, how
with only incidental or pretextual public city sorely in need of it–is only incidental they will know if they have found [illicit
benefits, just as a Court applying rational- to the benefits that will be confined on purpose] and what to do if they do not.”
basis review under the Equal Protection private parties of a development plan.”46 In her view, “[w]hatever the details of
Clause must strike down a government In Justice Kennedy’s view, when con- Justice Kennedy’s as-yet-undisclosed test,
classification that is clearly intended to fronted with a “plausible accusation of it is difficult to envision anyone but the
injure a particular class of private parties, impermissible favoritism to private par- ‘stupid staff[er]’ failing it.”48
Editor’s note: On August 22, 2005, the U.S. Supreme Court denied Kelo’s
Petition for a Rehearing.
In the Offing: A More Stringent
Standard of Review
By Brian Blaesser
The U.S. Supreme Court’s eminent domain vate boat marina,” and that “[h]omes are Although Justice Kennedy agreed that a
decision on June 23 in the Kelo case, which already being taken for shopping malls.” presumption of invalidity is not warranted
upheld the City of New London’s use of As further evidence of this “disturbing for economic development takings in gen-
eminent domain to take the homes of trend” the Petition points to recent local eral, he made clear that his concurrence
Susette Kelo and other homeowners to government actions in Missouri, with the majority’s position on that issue
implement an economic development plan, Maryland, Massachusetts, Florida, Ohio, “does not foreclose the possibility that a
has evoked a nationwide backlash that has Illinois, New Jersey, Tennessee, more stringent standard of review than that
not been seen in response to a Supreme California, Connecticut, Rhode Island, announced in B e rm a n andMidkiff might be
Court land use decision in many years. and Washington, D.C., where “lower-tax- appropriate for a more narrowly drawn cat-
Over the summer, the Petitioners took producing businesses are being taken for egory of takings.” He gave as examples
the unusual step of filing a Petition for higher-tax-producing ones. The Petition “private transfers in which the risk of
Rehearing with the Supreme Court, argu- requests that the Court rehear the case, undetected impermissible favoritism of pri-
ing that local governments and private vacate the judgment of the Connecticut vate parties is so acute that a presumption
interests have interpreted the Court’s Supreme Court, and remand the case to (rebuttable or otherwise) of invalidity is
decision as giving them freedom to act the Connecticut trial court to apply what warranted under the Public Use Clause.”
without constraints on the exercise of Petitioners describe as the “new stan- But in the end, Justice Kennedy declined
eminent domain. The Petition states, for dard” announced by the Court. to speculate as to “what sort of case might
example, that “hours after the Kelo deci- New standard? Whether or not one likes justify a more demanding standard.”
sion, officials in Freeport, Texas, began the decision of the Supreme Court, it arg u- Justice O’Connor’s probing critique of
legal filings to seize two family-owned ably is a stretch to characterize the Court’s the majority’s reasoning and Justice
seafood companies to make way for a decision in Kelo as a new standard in light of Kennedy’s concurring opinion revealed
more upscale business: an $8 million pri- the Court’s eminent domain jurisprudence. some weaknesses in the argument that
Blaesser is a partner at the law firm of Robinson & Cole LLP. 44. Kelo, 125 S. Ct. at 2669 (1985); Department of Council, 505 U.S. 1003,
Contact him at bblaesser@rc . c o m . (Kennedy, J., concurring), cit- Agriculture v. Moreno, 413 1025-1026, n. 12 (1992).
ing FCC v. Beach U.S. 528, 533-536 (1973).
Communications, Inc., 508 46. Id. (Kennedy, J., concur-
U.S. 307 (1993); Williamson v. ring), citing to trial court, 2
Lee Optical of Okla., Inc., 348 App. to Pet. for Cert. 263.
U.S. 483 (1955).
47. Id. at 2669 (Kennedy, J.,
45. Id. (Kennedy, J., concur- concurring).
ring), citing Cleburne v.
48. Id. at 2675 (O’Connor, J.,
Cleburne Living Center, Inc.,
dissenting), citing Lucas v.
473 U.S. 432, 446-447
South Carolina CoastalAmerican Planning Association
Planning & Environmental Law
September 2005 Vol. 57, No. 9 | p.8
It should be the city’s burden to make sure the record adequately
analyzes the expected economic impacts of a development plan.
takings-for-economic development satisfy It seems to me that Justice O’Connor In the wake of Kelo, the legislatures in
the public use requirement. For example, also correctly questions, at least from a states such as Alabama, Arizona, Georgia,
the Court acknowledges that its cases citizen’s perspective, how private benefit Hawaii, Nevada, and Virginia are now con-
have always held that the sovereign may and incidental public benefit can be dis- sidering legislation to limit the scope of
not take A’s property for the sole purpose aggregated. For city planners, the phrase “public use” for which the power of emi-
of transferring it to another private party “incidental public benefits” should be an nent domain may be used. The limitations
B, even though A receives just compensa- invitation to identify and explain public in these legislative proposals range from
tion for the taking. When challenged by benefits in terms of the generally well- prohibiting the use of eminent domain to
the dissent to explain how the stated established principles and methodology transfer private property to another private
public purpose can be determined from for economic impact analysis, including entity to eliminating commercial retail
the record to be a mere “pretext” for multiplier analysis. development as a public use for which the
It should be the city’s burden to power of eminent domain may be used
bestowing private benefit, the majority
make sure the record adequately ana- and to requiring a finding of “blight” on
emphasizes the importance of a “care-
lyzes the expected economic impacts of each parcel proposed to be taken by emi-
fully considered plan.” In a footnote, the
a development plan. If local govern- nent domain. As some of the other com-
majority adds: ments, using such methodology, cannot mentators may note, there is likely to be
And while the City intends to transfer adequately demonstrate that “incidental plenty of action on state and local fronts in
certain of the parcels to a private devel- public benefits” are measurable (i.e., the coming months and years.
oper in a long-term lease–which devel- tangible) public benefits to defend The split decision in Kelo reflects
oper, in turn is expected to lease . . . to themselves against claims that “inciden- years of debate about the law of eminent
other private tenants–the identities of tal” public benefits are minor or illusory, domain and portends a turbulent after-
those private parties were not known then it is very possible that a court may math in the courts, in the legislatures,
when the plan was adopted. It is, of reasonably invalidate a taking for eco- and in public hearing rooms across our
course, difficult to accuse the govern- nomic development purposes. country. In the Supreme Court, the con-
ment of having taken A’s property to Regardless of how the “federal base- curring opinion of Justice Kennedy, the
benefit the private interests of B when line” of the public use requirement may strong dissents of Justices O’Connor and
the identity of B was unknown. change after K e l o, it is clear, as the Thomas, and the likely confirmation of a
Supreme Court acknowledged, that the conservative jurist to replace retiring
It certainly might be questioned just states, through court decisions and legisla- Justice O’Connor, all suggest that a
how “carefully considered” or, at least tion, can place “further restrictions on new—or at least revised—eminent
realistic an economic development plan is [their] exercise of the takings power.” In domain standard for economic develop-
that does not make a reasonable attempt the last few years, a number of state courts ment takings may not be far in the
to identify B or at least define the param- have invalidated eminent domain actions, future, whether as a result of the rehear-
eters of what/who B should be so that the applying a more stringent reading of the ing requested by the Petitioners or
expected outcomes can be judged. public use requirement under state law. because of a new case with better facts.You can also read
