Article

Public Use / Public Purpose
After Kelo v. City of New London
David L. Callies
Christina N. WakayamaIntroduction

One of Professor Kotaka's many interests and legacies in the field of administrative law was and is his work in the field of compulsory purchase, known aseminent domain in the United States. It is thus timely and appropriate for thiscontribution to deal with this subject, and in particular the issue of the sufficiency of public purpose to support the governmental exercise of its compulsory
purchase powers, about which there has been much recent discussion, caselaw,
and state statutory and constitutional amendment in the United States. This
article commences with a summary of the law of eminent domain in the UnitedThis article is a revised and longer version of a paper delivered in March at
the annual conference of the Rocky Mountain Land Use Institute, Sturm
College of Law, Denver, Colorado. The authors thank Joe Dane andMarissa Lum at the William S. Richardson School of Law for their able research assistance on this and earlier drafts.
FAICP, ACREL, Kudo Professor of Law, William S. Richardson School ofLaw, University of Hawaii at Manoa.
Casenote Editor, The University of Hawaii Law Review.
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説States, then proceeds to a full discussion of a recent (2005) U.S. Supreme Court

exclusively in the legislature.6 In some cases the legislature itself, by mere enact-case about public use, and finally the reaction of state legislatures and state

ment of a statute or resolution, affects the taking of certain land or interest in

courts to that case.

land for public use.7 In cases where a constitutional provision is self executing

Generally, any unit of government in the United States−federal, state or lo

and declares that land can be condemned for certain specified uses, proceedings

cal−can use its sovereign powers to take private land for public use. The same

to take land for such purposes may be instituted without waiting for authority

is true for quasi-governmental agencies and public corporations and utilities.

from the legislature.8 For example, municipal corporations have no prerogative

The limits placed on the exercise of that power are defined in the statutes thatright to exercise the power of eminent domain and cannot take land for publiccreated them.1 The technical term most often used, "eminent domain," does notuses unless the power has been conferred on them by the legislature.9 However,

imply that a government's right to take such real estate interests is based on athere have been cases where a state constitution authorizes cities to write theirpreeminent sovereign title or prerogative.2 Rather, most authorities agree it isown charters. In such instances, a city may give itself the power of eminent do-

based on the concept that the power is necessary to fulfill a sovereign govern-

main and provide that it may exercise the power beyond its own limits, without

mental function, in the interests of all the people which that government, as a

the aid of any legislative act.10

general purpose government, represents.3 The power is thus based not on ulti-

Both private and public corporations have the right to take property if thatmate ownership by the state, but on the exercise of its sovereign powers, vested

right is delegated to them by the state. Legislatures can create different classes

in the legislature but exercised by the executive branch of government.4

of corporations that are authorized to use eminent domain.11 Government im-

However, to say that eminent domain is a fundamental attribute of sover-poses different burdens in the exercise of eminent domain under the same condi-

eignty clashes with the concept of individual rights, particularly those to pri-tions for municipal corporations and private corporations because there isvate property: if government may take property for a public use, then thesufficient difference between them.12

individual has no guarantee that private property is safe from confiscation.
Indeed, there is no such guarantee under the British system of government. The

Public Purpose Today

American solution to the dilemma was to adopt such a guarantee of private
property rights in the Fifth Amendment to the United States Constitution,

While the definition of public use has not changed significantly in the past

which provides that government shall not take private property except for atwenty years, public perception of that change has. The federal rule, anticipatedpublic use and upon payment of just compensation.5 Thus, the U.S. Constitution

in Berman v. Parker,13 was established in Hawaii Housing Authority ("HHA" )limits the exercise of eminent domain by the federal government (public use andv. Midkiff14: so long as a public use (redefined as public purpose) is conceivable

compensation) which is presumed to have such power (though never expressly

and possible, even if it never comes to pass, federal courts will accept it. The U.S.

granted) which limitation is extended to the states by the Federal Constitu-

Supreme Court simply reiterated that rule in the 2005 case of Kelo v. New

tion's 14th Amendment.

London,15 holding that economic revitalization was a sufficient public purpose to

The power to initiate the exercise of eminent domain ordinarily resides

justify the taking of a non-blighted single family home under local eminent

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domain statutes. A number of state courts had established a more stringent test

説said Douglas:

than the supreme court of Connecticut, (which the Court affirmed in Kelo),
which, of course, the states may do since further protecting property rights be-

But the means of executing the project are for Congress and Congress alongyond the minimum under federal law is a matter for the states, as indeed theto determine, once the public purpose has been established. The public end

Supreme Court noted in Kelo. Nevertheless, the decision set off a firestorm of

may be as well or better served through an agency of private enterprise

criticism, leading to pending legislation in two-thirds of the states to establish

than through a department of government−or so the Congress might con-a more strict public purpose test to avoid results such as that in Kelo.

clude. We cannot say that public ownership is the sole method of promoting
the public purposes of community redevelopment projects.20

The State of the Federal Law on Public Use Before Kelo : Berman v. Parker and

HHA v. Midkiff

To the landowners' argument that their particular parcel was unblighted andthat therefore its condemnation violated the Fifth Amendment's public purpose

The members of the Court expressed different views on the historical antecedents of public use and how far back to go in deriving an appropriate definition to apply in Kelo.16

clause, Justice Douglas responded that if experts concluded the area must beplanned as a whole in order to prevent reversion to a slum, so be it.21
Despite this broad language, many conceived the decision to apply largely to

Nevertheless, all (except perhaps Justice Thomas) agree that the most relevant precedents are the decisions of the Court in Berman v. Parker and Hawaii
Housing Authority v. Midkiff. In both decisions, the Court wrote expansively
about the public use requirement of the Fifth Amendment.

redevelopment projects, and in particularly those which were well-planned in accordance with clear statutory mandates. Not so after HHA v. Midkiff.
In 1967 the Hawaii State Legislature passed a land reform act the principle
purpose of which was to eliminate a perceived oligopoly in available residential

In Berman the Court dealt with the condemnation of a thriving department

land which was thought to adversely affect the price and availability of housing

store contained in a large parcel condemned by a redevelopment agency for thefor its citizens.22 Eminent domain was the means chosen to solve the problem.

statutory (Congressional in this case) purpose of eliminating blight, all in ac-

The act authorized a state agency−the Hawaii Housing Authority−to condemn

cordance with a required redevelopment plan.17 Justice Douglas for the majority

the fee simple interest in land which was leased to individual homeowners, forcommenced by observing famously that a community could decide to be attrac-

the purpose of conveying that interest to some other private owner, usually thetive as well as safe, and that in thus justifying eminent domain to accomplish

existing owner's lessee who owned the house on the land.23 The main target ofthese goals, "We deal, in other words ... with the police power," 18 a controversial

the legislation was the Bishop Estate (as it was then known), a charitable trust

joining of the two powers which has affected definitions of public use ever sincecreated by Princess Bernice Pauahi Bishop, a descendent of King Kamehameha

by obviating any need for the public to actually use the property condemned so

the Great and whose large landholdings she eventually inherited. The Estatelong as it furthered a public purpose. Indeed, the landowners pointed out thatchallenged the act's condemnation process as a taking without the public use re-their land would simply be turned over to another private owner.19 No matter,quired by the U.S. Constitution's Fifth Amendment.24 While the Federal District

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説

Court upheld the statute, the Ninth Circuit Court of Appeals held that the stat-planning the area's economic development.29 Authorized and aided by grants to-ute essentially provided for a "naked" transfer from one private individual to an-taling millions of dollars, NLDC held meetings and eventually "finalized an inte-other, and so lacked the requisite public use.25

grated development plan focused on 90 acres in the Fort Trumbull area." 30 The

In a unanimous decision, the U.S. Supreme Court reversed the Ninth Circuit,

NLDC successfully negotiated the purchase of most of the real estate in the 90-

citing Berman for the proposition that once a legislative body had declared aacre area, but its negotiations with the owners of 15 properties failed.31 Whenpublic purpose, it was not for federal courts to interfere unless that purpose

the NLDC initiated condemnation proceedings the landowners filed suit.32

were "inconceivable" or an "impossibility." 26 The means were irrelevant; this wasAmong them was Susette Kelo, who had lived in the Fort Trumbull area since

simply a mechanism or process to accomplish the legislatively-declared public

1997,33 who made extensive improvements to her house, which she prizes for its

purpose. Indeed, it would make no difference, said Justice O'Connor writing forwater view,34 and Wilhelmina Dery, who was born in her Fort Trumbull house

the Court, if that public purpose never came to pass, so long as the legislaturein 1918 and has lived there her entire life.35 Although there was no allegation

could reasonably have thought it would when enacting the statute.27 Notethat any of these properties was blighted or otherwise in poor condition, they

throughout the frequent use of public purpose, instead of public use. These

nevertheless condemned with the others "because they happen to be located inwords would come back to haunt Justice O'Connor in Kelo, as appears below.

the development area." 36 On these facts, petitioners claimed that the taking of
their property violated the public use restriction in the Fifth Amendment.37 A

Kelo v. City of New London : Midkiff and Berman Followed: A Requiem for Public

trial court agreed as to the parcel containing the Kelo house, but a divided

Use

Supreme Court of Connecticut reversed, holding that all of the City's proposed
takings were constitutional.38 Noting that the proposed takings were authorized

The Court in Kelo simply extended the reasoning in Berman and Midkiff toby the state's municipal development statute and in particular the taking of

the economic revitalization condemnations that are increasingly common

even developed land as part of an economic development project was for a publicthroughout urban areas in the United States. Indeed, the majority was singu-

use and in the public interest, the court relied on Berman and Midkiff in holding

larly unimpressed with extreme uses of eminent domain for the purposes of pro-that such economic development qualified as a public use under both federal andviding employment and bettering the local tax base as the parties brought to its

state constitutions.39 The U.S. Supreme Court granted certiorari "to determine

attention: "A parade of horribles is especially unpersuasive in this context since

whether a city's decision to take property for the purpose of economic develop-

the Takings Clause largely operates as a conditional limitation permitting thement satisfies the 'public use' requirement of the Fifth Amendment." 40

government to do what it wants so long as it pays the charge." 28

The Court commenced its analysis by reiterating that private-private trans-

The facts in Kelo are straightforward. In order to take advantage of a sub-fers alone are unconstitutional and any pretextual public purposes meant solely

stantial private investment in new facilities by Pfizer, Inc., in an economicallyto accomplish such transfers would fail the public use test.41 However, the Court

depressed area of New London along the Thames River, the City reactivated theobserved that the governmental taking before it was meant to "revitalize theprivate non-profit New London Development Corporation (NLDC) to assist in

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説significant increase in tax revenue, encouraging spin-off activities and maximiz-

economic revitalization in New London constitutes such use: a rigorous plan-ing public access to the waterfront" 42 all in accordance with a "carefully con-ning process, the Court's precedents embodied in Berman and Midkiff, and def-sidered" 43 and "carefully formulated" 44 development plan in accordance with aerence to federalism and state decision making.

state statute "that specifically authorizes the use of eminent domain to promote

The Court steadfastly and bluntly rejected any suggestion that it formulate

economic development." 45 Therefore, the "record clearly demonstrates that thea more rigorous test.53 Thus, for example, to require government to show thatdevelopment plan was not intended to serve the interests of Pfizer, Inc., or any

public benefits would actually accrue with reasonable certainty or that the im-other private entity." 46 Indeed, the Court was particularly impressed by "theplementation of a development plan would actually occur would take the Court

comprehensive character of the plan [and] the thorough deliberation that pre-into factual inquiries already rejected earlier in the term when the Court re-ceded its adoption." 47 Although little in the plan demonstrated any actual use byjected the "substantially advances a legitimate state interest" test for regulatory

the public, the Court observed that it had embraced a broader and more "natu-

takings in Lingle v. Chevron U.S.A. Inc.54 Similarly, the Court declined toral" interpretation of public use as public purpose at least since the end of thesecond-guess the city's determinations as to what lands it needed to acquire in

19th Century and "we have repeatedly and consistently rejected that narrow [useorder to effectuate the project.55

by the public] test ever since." 48

Lastly, the Court rejected the invitation by some amici to deal with the appro-

Next, the Court observed that this broad definition of public use accorded

priateness of compensation under the circumstances. While the Court acknowl-

with its "longstanding policy of deference to legislative judgments in thisedged the hardships which the condemnations might entail in this case, "... thesefield." 49 The Court then discussed its decisions in Berman and Midkiff as demon-

questions are not before us in this litigation" even though members of the Court

strations of such legislative deference, quoting heavily from the language in

itself raised the adequacy of compensation during oral argument.56 In a nod toBerman about "'the power of the legislature to determine that the community

federalism and states rights, the Court closes by leaving to the states any rem-should be beautiful as well as healthy, spacious as well as clean, well-balanced as

edy for such hardships posed by the condemnations in New London: "We empha-

well as carefully patrolled.'" 50 The Court concluded that its "jurisprudence hassize that nothing in our opinion precludes any State from placing further

wisely eschewed rigid formulas and intrusive scrutiny in favor of affording leg-

restrictions on its exercise of the takings power. Indeed, many states alreadyislatures broad latitude in determining what public needs justify the use of theimpose 'public use' requirements that are stricter than the federal baseline." 57

takings power." 51

Only Justice Kennedy's concurrence suggests some small role yet for federal

The Court's answer: an unequivocal yes. While the Court noted that "the sov-courts in determining that a particular exercise of eminent domain might fallereign may not take the property of A for the sole purpose of transferring toshort of the required public use requirement: "There may be private transfers inanother private part B ... it is equally clear that a State may transfer property

which the risk of undetected impermissible favoritism of private parties is sofrom one private party to another if future 'use by the public' is the purpose of

acute that a presumption (rebuttable or otherwise) of invalidity is warranted

the taking." 52 The question, then, is what constitutes sufficient use by the pub-under the Public Use Clause." 58 This is, however, largely a due process argument

lic. Three factors appear to be important in reaching the conclusion thatrather than a Fifth Amendment argument, and in any event, continued

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説

Kennedy: "This demanding level of scrutiny is not required simply because thecan take private property and give it to new private users so long as the new use

purpose of the taking is economic development." 59

is predicted to generate some secondary public benefit like increased tax revenues or more jobs, then "for public use" does not exclude any takings.65

The Dissents

Dismissing Justice Kennedy's test as one in which no one but a "stupid staffer"could fail, Justice O'Connor finds the logic of the Court's decision such that

The argument for a judicial hands-off is not so strong as the Court majority"Nothing is to prevent the State from replacing any Motel 6 with a Ritz-

suggests, however, as the vigorous dissents from Justices O'Connor andCarlton, any home with a shopping mall, or any farm with a factory." 66 Leaving

Thomas demonstrate. Particularly strong is the dissent by Justice O'Connor

any tougher standards designed to limit such possibilities to the states is "an ab-

who wrote the broadly-worded Midkiff opinion for a unanimous Court in 1984.

dication of our responsibility. States play many important functions in our sys-

Observing that the question of what is a public use is a judicial, not a legislative

tem of dual sovereignty, but compensating for our refusal to enforce properly

one,60 Justice O'Connor commences by declaring that if economic development

the Federal Constitution ... is not among them." 67 She ends with concerns fortakings meet the public use requirement, there is no longer any distinction be-

those with fewer resources who will suffer in contests over exercises of eminent

tween private and public use of property, the effect of which is "to delete thedomain with those with "disproportionate influence and power in the politicalwords 'for public use' from the Takings Clause of the Fifth Amendment."61

process, including large corporations and development firms ....68"

But what then of Berman and her own language in Midkiff ? These decisions,

Justice Thomas raises similar concerns in his dissent, but in considerablyaccording to O'Connor, were exceptions to the Court's jurisprudence which re-more detail. Picking up on Justice O'Connor's concern for the politically leastquired public use to be actual use by the public. The Court, says O'Connor, has

powerful and characterizing the Court's deferential standard as "deeply"identified" three categories of public use takings of private property: (1) trans-

perverse," 69 Justice Thomas provides several examples indicating that those up-

fers to public ownership for such as roads, hospitals and military bases; (2)rooted in even the urban renewal cases were overwhelmingly poor, elderly,transfers to private common carriers or utilities for railroads or stadia (both ofblack, or all of the above.70 His disagreement with the Court goes much deeper

which she characterizes as "straightforward and uncontroversial")62 and (3) thethan that of Justice O'Connor, however. Reviewing a series of court opinions

rare "public purpose" case "in certain circumstances and to meet certain exigen-and writings from the late 18th Century, Justice Thomas concludes that thecies" like the eradication of blight and slums in Berman and the elimination ofcases cited by the majority for the proposition that public use meant public pur-oligopoly in Midkiff, where deference to legislative determinations were war-pose rather than use by the public in the early years of the republic were exce

ranted because the " extraordinary precondemnation use of the targeted prop-

ptions−aberrations that varied from the usual rule. Thomas concludes that theerty inflicted affirmative harm on society." 63 In other words, these were

Court's current public use jurisprudence therefore rejects the original meaning

exceptional circumstances clearly not replicated in New London, and the appli-of the public use clause, to which he urges the Court to return, and from whichcation of this third exceptional category in these circumstances "significantly

it has clearly deviated.71

expands the meaning of public use." 64 If, as the majority suggests, government
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Statutory and Constitutional Provisions Enacted to Limit Eminent Domain Powerin the Wake of Kelo−The States Rebel: Public Purpose Redux

説

Passed Ballot Measures
Voters in 10 of the 12 states (Arizona, Florida, Georgia, Louisiana, Michigan,
Nevada, New Hampshire, North Dakota, Oregon, South Carolina) passed theballot measures.79

Legislative ActionMore than two years after the United State's Supreme Court's decision in

Arizona's Proposition 207, statutory language proposed through a citizen ini-

Kelo, the public concern regarding eminent domain abuse is still going strong.

tiative in Arizona, was approved by 65 percent of voters.80 The proposition curbs

Grass roots groups such as the Institute for Justice and its property rights

the legislature's power to exercise eminent domain by making the public use

counterpart, the Castle Coalition, have been tracking and encouraging policyquestion one for the judiciary to decide rather than the legislature.81

movements at the State and local level.72

Interestingly, it mandates that the judicial question of public use be determined

Legislators in 47 states have introduced, considered or passed legislation lim-"without regard to any legislative assertion that the use is public." 82 This lan-iting the government's eminent domain powers in instances of private use sinceguage cuts against the current eminent domain case law which defers to legisla-

the Court's unpopular decision in June of 2005.73 Forty-one states have enacted

tive determinations of public use. Before the Supreme Court decided Kelo, HHA

legislation aimed at curbing eminent domain abuse.74 The states that have failed

v. Midkiff and Berman v. Parker clearly indicated the Court's preference for leg-

to pass any degree of eminent domain reform are: Arkansas, Connecticut,

islative deference.

Hawaii, Massachusetts, Mississippi, New Jersey, Oklahoma, and Rhode Island.75
Iowa, Arizona and New Mexico are the only states whose governors vetoed eminent domain reform, and Iowa is the first to override such a veto.76 Local govern-

Proposition 207, defines "public use" as meaning any of the following:
1. the possession , occupation, and enjoyment of the land by the generalments are also taking measures to protect their homeowners, with more than 70

public, or by public agencies;

cities and counties introducing their own bills to restrict the use of eminent do-

2. the use of land for the creation or functioning of utilities;

main.77

3. the acquisition of property in its current condition, including the removalof a structure that is beyond repair or unfit for human habitation of use;

Ballot Measures

or

Citizens in 12 states voted on measures aimed at curbing eminent domain

4. the acquisition of abandoned property.83

abuse. (Arizona, California, Florida, Georgia, Idaho, Louisiana, Michigan,
Nevada, New Hampshire, North Dakota, Oregon, and South Carolina).

The most contentious portion of the measure, however, provides for compen-

Montana, which was previously scheduled to vote on two constitutional initia-

sation if existing rights in property are "reduced by the enactment or applicabil-tives aimed at private property rights and limiting the purposes for which the

ity of any land use law ... and such action reduces the fair market value of thegovernment may take private property respectively, did not vote on the ballot

property[.]" 84

measures as they were both withdrawn by their sponsors.78
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The Arizona ballot measure was criticized as being costly to taxpayers, whose( 12 )( 13 )(名城'07)

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tax dollars ultimately go to compensate property owners, and to local communi-

説d. parks, convention centers, museums, historical buildings and recrea-ties and voters, who will no longer be able to decide what type of development istional facilities generally open to the public,

appropriate for them.85 The measure was labeled a "Trojan horse" and "an as-e. public utilities for the benefit of the public generally,sault on reasonable planning." 86f. public ports and public airports to facilitate the transport of goods orFlorida voters approved of a constitutional amendment that would prohibit
the government from taking property for "blight" removal.87 The amendment,

persons in domestic or international commerce;
3. the removal of a threat to public health or safety caused by the existinguse or disuse of the property.91

which passed with nearly 70 percent approval, requires a three-fifths vote fromeach house of the Florida legislature in order to grant exemptions.88
In Georgia, more than 80 percent of the electorate voted in favor of a constitu-

The measure also makes it clear that "[n]either economic development, en-tional amendment requiring a vote by elected officials any time eminent domain

hancement of tax revenue, or any incidental benefit to the public shall be consid-

will be used.89

ered in determining whether the taking ... is for a public purpose[.]" 92

In a close election, Louisiana citizens voted on September 30, 2006 to limit theMichigan voters approved a constitutional amendment that prohibits "thegovernment's ability to take private property through amendments to its statetaking of private property for transfer to a private entity for the purpose of eco-constitution.90 Louisianans passed measure number five, to restrict purposes fornomic development or enhancement of tax revenues." 93 The measure, which re-which government can take land from unwilling property owners, by a 55 per-ceived 80 percent voter approval, also requires the government prove its

cent to 45 percent vote.

authority to condemn property for blight removal by "clear and convincing evi-

Measure number five limited the definition of "public purpose" to the following:

dence." 94
More than 60 percent of Nevada voters approved a constitutional amendmentthat would sharply limit the government's exercise of eminent domain.95 Nevada

1. a general public right to a definite use of the property;

law, however, requires that a constitutional amendment be passed in two con-

2. continuous public ownership of property dedicated to one or more of the

secutive general elections, so voters will need to approve of the measure again in
2008.96

following objectives and uses:
a. public buildings in which publicly funded services are administered,rendered, or provided,

New Hampshire's legislature passed a constitutional amendment earlier thisyear that prohibited the government from exercising eminent domain "if theb. roads, bridges, waterways, access to public waters and lands, andtaking is for the purpose of private development or other private use of theother public transportation, access, and navigational systems avail-property." 97 The amendment was subsequently approved of by more than 85 per-able to the general public,

cent of Nevada voters.98

c. drainage, flood control, levees, coastal and navigational protection
and reclamation for the benefit of the public generally,
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North Dakota, which did have a legislative session this year, passed a constitutional amendment through a citizen initiative that prohibits private use of( 14 )( 15 )(名城'07)

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property taken though eminent domain.99 The measure passed with over 65 per-説

Failed Measurescent approval.100
Measure 39, proposed through a citizen initiative in Oregon and supported by

California and Idaho failed to pass constitutional amendments proposed

65 percent of voters, restricts the use of eminent domain in order to convey

through citizen initiatives.112 These amendments, however, were viewed as notproperty interests to a private party.101 The measure prohibits any public body

curbing the type of eminent domain abuse exemplified in Kelo.113

from condemning private property used as a residence, business establishment,
farm or forest operation if it intends to convey any property interest to a pri-

United States Congressvate party.102 However, conveyance to a private party is allowed where the real
property "constitutes a danger to the health and safety of the community by

Although both the House and the Senate have introduced numerous bills at-reason of contamination, dilapidated structures, or improper or insufficient

tempting to restrict eminent domain abuse since the Supreme Court decided

water or sanitary facilities[.]" 103

Kelo, HR 3058 is the only one to actually become law.114 The bill, which became

The measure states that "[a] court shall independently determine whether alaw on November 30, 2005, made appropriations for the Departments oftaking of property complies with requirements of this section, without defer-

Transportation, Treasury, and Housing and Urban Development, the Judiciary,

ence to any determination made by the public body." 104 In addition, the measure

District of Columbia, and independent agencies for the fiscal year ending

provides that costs and reasonable attorney's fees will be awarded to the land-

September 30, 2006.115 The bill provided that "[n] o funds in this Act may be usedowner in compensation battles where the verdict in trial exceeds the initial writ-

to support any Federal, State, or local projects that seek to use the power often offer submitted by the condemner.105

eminent domain, unless eminent domain is employed only for a public use[.]" 116

The measure has been criticized as preventative of condemnation in most cir-

The bill further specifically states that "public use shall not be construed to in-

cumstances because land is usually handed over to private developers.106 As such,clude economic development that primarily benefits private entities." 117 In addi-

the measure will set back economic development in the state.107 Moreover, thetion, the bill provided that the Government Accountability Office conduct agovernment expects to pay an extra $8 - $17 million a year acquiring state high-study on the nationwide use of eminent domain, including the procedures used

way rights of way, as well as $8 -$13 million a year in city and county property

and the results accomplished on a state-by-state basis as well as the impact on

costs.108 This is because more landowners will go to court, and taxpayers will

individual property owners and on the affected communities.118 This study has

have to pick up the tab.109

now been completed, but the lack of centralized or aggregate data on eminentSouth Carolina's constitution now specifically prohibits municipalities fromdomain proceedings hampered the GAO's ability to provide a comprehensive

condemning private property for "the purpose or benefit of economic develop-

overview.119 HR 5576, the appropriations bill for Fiscal Year 2007 for the same

ment, unless the condemnation is for public use." 110 The constitutional amend-

departments, is currently being debated.120 If enacted as presently written, it will

ment, which passed with more than 85 percent approval, closed a loophole

keep the restrictions in HR 3058 in place.

caused by the state's eminent domain law.111
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Private Property Protection Act of 2005, but it seems like the House and Senate

The owner answered that the taking was a private use and that the "public pur-can never quite agree. That Act, also known as HR 4128, provides that:pose" was a pretext. The Superior Court struck the owner's defenses, holdingthat once the legislature has declared that there is a public purpose behind a

No State or political subdivision of a State shall exercise its power of emi-

taking, defenses claiming otherwise are foreclosed as a matter of law.129

nent domain, or allow the exercise of such power by any person or entity to

The appellate court declined to read Kelo so broadly.130 Although courts mustwhich such power has been delegated, over property to be used for economic

play a limited role after Kelo, that case did not address the sufficiency of plead-development or over property that is subsequently used for economic devel-

ings. "Kelo recognized that there may be situations where a court should not

opment, if that State or political subdivision receives Federal economic de-take at face value what the legislature has said." 131 It is not sufficient for a find-velopment funds during any fiscal year in which it does so.121

ing of pretext that a private entity will be doing the redevelopment. On theother hand, Kelo allows that some alleged public purposes may in fact be pre-It also prohibits the federal government from condemning property for eco-texts. "A reviewing court must focus primarily on benefits the public hopes tonomic development.122 The bill passed the House on November 3, 2005 but was

realize from the proposed taking." 132 The case was remanded for further consid-

stalled in the Senate Judiciary Committee.123 After failing to bring the bill to aeration of the pretext defense.

vote H.R. 4128 was "hotlined" 124 on December 5 in an attempt to pass the legislation before the 109th Congress adjourned.125 The bill, however, was again put

In the matter of 49 WB, LLC v. Village of Haverstraw, 2007 WL 1775976

on hold and the eminent domain reform was effectively killed on the Senate(N.Y.A.D., June 2007)

floor.126

In this opinion by the Appellate Division of the State of New York, discussion

In July 2007, Private Property Rights Protection Act of 2007 was introducedof Kelo in the first sentence of the opinion. Kelo has "reshaped, in certain re-in the House of Representatives to stop taxpayer funding of eminent domain

spects, the concept of eminent domain." 133 The court also notes that this caseabuse.127 This bipartisan bill would deny for two fiscal years economic develop-"may represent one of the earliest post-Kelo litigations in the State of New

ment funds to state and local governments that use eminent domain for private

York." 134development.128

The City, seeking to "revitalize" its downtown, wants to condemn a certain
building. Neither the building nor the area is blighted in any way. There is some

Recent Court Decisions

mention by the City of the purpose of providing affordable housing.
The Court acknowledged that legislative determinations are "well-nigh con-Franco v. Nat'l Capital Revitalization Corp., 2007 WL 2001652 (D.C. App, Julyclusive" and judicial review must be narrow.135 The owner alleged that the pur-2007).

pose here is to benefit the developer. The Court says that the burden on the

In this recent case, a development corporation initiated condemnation pro-owner is high: "that the Village's determination and findings do not rationallyceedings against the owner of a store in an allegedly blighted shopping mall.

relate to a conceivable public use, benefit, or purpose, or whether it merely

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confers private benefits to third parties." 136説

at limiting "blight" designations and eminent domain in general, but in 2006

Nevertheless, the Court characterized the public purposes here as "illusory"these efforts were rejected.141 This opinion is more deferential, but feels thatand even "pretextual."137 The Court held that the true purpose was to benefit theCentene just didn't present enough evidence of "social liability".142 There was also

developer, and invalidated the taking.138

a dissent, which said that there was sufficient evidence presented to support afinding of blight.143

Goldstein v. Pataki, 488 F. Supp. 2d 254 (E.D.N.Y, June 2007)
This was an action by property owners opposing condemnations for the enor-

Litva v. Village of Richmond, 2007 WL 1976592 (Ohio App. June 2007)

mous "Atlantic Yards" sports and mixed-use complex. The defendants moved forPlaintiffs appeal a decision holding certain ordinances valid and enforceable.

dismissal. The case includes a long discussion of Berman, Midkiff, and a very

Plaintiffs keep horses and animals on their properties. Citizens of the Village

long and detailed look at Kelo.

pass an initiative/ordinance prohibiting the keeping of animals in the village.

The court rejects the argument made by plaintiffs that the sole purpose of thePlaintiffs claim a regulatory taking, citing their "drastically" reduced property

development was property transfer to a private party. The court says that thevalue. However, this argument was apparently not made a trial, will not be con-project may fail in its goals (including affordable housing) but that is irrele-

sidered here. Therefore, the decision is affirmed.

vant to the matter before court.139 The court says that Kelo didn't define "mere

Kelo is cited obliquely in dissent. According to the dissent, the majority seems
to say that if the citizens vote, they can take anyone's property at all.144 The dis-pretext", but in this case plaintiffs have surely not pled sufficient facts.
The Court cites Bell Atlantic Corp. v. Twombly140 ( ) for the standard thatsent asks is to consider what happened after Kelo, when an attempt was madefacts must be pled such that the claim is "plausible" on the face of those facts.

by citizens to condemn the home of one of Kelo's majority Justices. "This action,

Although this standard hasn't been used in eminent domain cases, the court

according to the majority's rationale, would not be a taking." 145finds it appropriate. Under this standard, plaintiffs have failed to make a case.

Mayor and City Council of Baltimore City v. Valsamaki, 397 Md. 222, 916 A. 2d 324
Centene Plaza Redevelopment Corp. v. Mint Properties, 2007 WL 1695163 (2007)(Feb 2007)

The City of Clayton, Missouri, give redevelopment powers, including eminentThis case, containing a thorough discussion of Kelo, arose from a "quick take"domain, to a redevelopment corporation. Mint properties (appellants here) re-condemnation of a property containing a bar and "package goods" store. The

sisted, said that their property was not blighted. The trial court held for the re-circuit court granted the City's condemnation petition, without any notice todevelopment corporation, which judgment is reversed here.

the owner. The owner appealed, prevailed, and the City appealed directly to the

The majority opinion does not cite Kelo at all, but simply looks to the relevant
statute defining "blight", which requires "social liabilities." Whatever thatmeans, it wasn't found here.

Supreme Court. The City asks: does the city have the burden to prove 'necessity'
to proceed with a quick take condemnation? The answer: yes.
The court finds that the City needs to work harder in quick take proceedings

A concurring opinion mentions that after Kelo the legislature made an effort

to show a public purpose.146 Ordinances authorizing the procedure notwith-57−1･2−477 (名城 '07)

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standing, "a government entity must provide some assurance that the urban re-claims, MHC was permitted to amend its complaint.153 The amended complaint,

newal will constitute a public use or public purpose for the property taken. It iscovering all bases, alleges a physical taking, a Penn Central regulatory taking,not enough, especially in quick take situations, for the City to simply say thata private taking, illegal exactions, and substantive due process violations. The

it is conducting urban renewal and leave it at that." 147 The court makes the point

City moved for summary judgment, which the court here grants in part but de-that the quick take nature of this case is important, and means a higher burden

nies on the regulatory taking, private taking, and substantive due process

for the city. But even in a "regular" eminent domain taking, the evidence of pub-claims.154

lic purpose here was "sparse".148 O'Connor's Kelo dissent is cited for the notion

A through discussion follows of Lingle, and how it may drastically effect 9ththat in Midkiff and Berman it was the "extraordinary precondemnation use of

Circuit jurisprudence. The City cites Kelo, and claims that legislative determina-

the targeted property" that validated the taking.149

tions can't be second guessed by the courts. The court here clearly doesn't favor"premium granting" rent control ordinances.155

Housing and Redevelopment Authority of the City of Bloomington v. Bloomington
Professional Building, LLC, 2007 WL 224272 (Minn. App., Jan 2007)

Most of the discussion of Kelo is with respect to the private taking claim. The
court cites Justice Kennedy's concurrence that "careful and extensive inquiry

An appeal of district court grant of quick take condemnation. A building

into whether, in fact, the development plan is of primary benefit to the developerowner claimed that the take was unauthorized, that his property was notand only incidental benefit of the City" may be required.156 Since such an inquiry"blighted", that the take was not for a public purpose, and was unnecessary. The

is needed here, summary judgment is denied.157

take is affirmed here.
There is little discussion of Kelo here, and the case is not a terribly interestingone. The owner in fact had previously been in negotiations with the City to per-City of Baltimore Development Corp. v. Carmel Realty Assoc., 395 Md. 299 (Nov.
2006)

form the redevelopment, and it was only when those talks broke down that he

A case with only fairly marginal connection to Kelo, the issue here was

opposed the process.150 The court cites Kelo approvingly for the proposition thatwhether a corporation invested with condemnation powers is subject to "open

economic redevelopment is a valid public purpose.151

government" standards and regulations. Kelo is briefly summarized, with particular emphasis on the dissents.158 The court notes that when one is forced

MHC Financing Ltd. Part. v. City of San Rafael, 2006 WL 3507937 (N.D. Cal., Dec.

under condemnation to convey property, especially to private parties, it is even2006)

more important that the proceedings be open to public scrutiny.159

This case provides a good overview of how Kelo and Lingle152 might work together in practice. MHC owns a trailer park, and claimed that a rent and va-

Western Seafood Company v. U.S., 202 Fed. Appx. 670 (5th Cir. Oct. 2006)

cancy control ordinance is a taking, in that it fails to "substantially advance" aThis case arose from a redevelopment effort, to be built and operated by a pri-legitimate state interest. Proceedings were suspended pending the decision invate company. The owner of some riverfront property to be condemned filed for

Lingle. After Lingle destroyed the "substantially advance" test in takings

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説from building marina piers in front of their property. The owner claimed that

The court here had little difficulty affirming the finding of public use. "Here,the taking violated the US and Texas constitutions.160 The City claimed that the... the City's proposed use of the condemned property is exclusively a public use

principal purpose was to revitalize the city, a valid purpose.161

that will function as a part of the City's storm water sewer system." 169

The action was initiated before Kelo. After Kelo, Western filed for reconsid-

Kelo was cited only in a footnote, where it was found not applicable.170

eration. By this time, Texas has also passed the "Limitations on the Use ofCondemnation here will not entail any private occupancy of the condemned

Eminent Domain Act," passed in response to Kelo.162

property. Also, Kelo was based entirely on the US Const., which was not at issue

The court held that the taking does not violate the US Constitution. The court

here.

generally follows Kelo, which it says is "directly on point".163 However, the recent
Act does restrict eminent domain, so this case is remanded for reconsideration

Century Land Group, LLC v. Mayor & Council of the Borough of Keyport, 2006

in light of that Act.164

WL 2457846 (N.J. Super. L., Aug 2006)
A developer and Keyport signed a Memorandum of Understanding, establish-

Nevadans for the Protection of Property Rights, Inc. v. Heller, 141 P.3d. 1235

ing a "cooperative relationship" regarding the development of a former(Nev. Sep, 2006)

landfill.171 The landfill is leaching contamination into surrounding waterways.

This is another case citing Kelo which is not directly about eminent domain.

There is also a deserted industrial complex. The developer sought to build multi-

There had been a citizen's initiative to amend the Nevada constitution to restrict

family residential buildings. The City labeled the site as in need of "redevelop-

the powers of eminent domain, and to otherwise strengthen "property rights".165

ment," pursuant to statute. The site needed rezoning, and after the developer

It was alleged that the proposed amendment violated a statutory limitation on

and city were unable to agree on density, the developer terminated the MOU.

such amendments to concerns themselves with single issues only. Kelo was rele-

The City opened the redevelopment to bid, inviting developer to submit a bid.

vant only to the extent that it had been admitted that the initiative wasDeveloper sued, claiming that the redevelopment designation was arbitrary andlaunched in response to that decision.166 As such, the majority felt it appropriate

capricious, ultra vires, and illegal.172

to judicially trim the proposed amendment to its core issue of restricting eminent domain, to the exclusion of other issues such as regulatory takings.167

The developer cited Kelo for the proposition that "redevelopment designation
cannot be sustained where private development is likely." 173 The court disagreed,saying that Kelo's broad conception of public purpose rather helps the city

Hoffman Family, LLC v. City of Alexandria, 272 Va. 274, 634 S.E.2d 722 (Sep.

here.174

2006)
The City attempted to condemn land to relocate a storm water sewer, as partof a redevelopment plan. An owner sued, claiming that the plan was for the
benefit of a private party, the developer. The trial court found that the taking
was for a public use.168
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Board of County Commissioners of Muskogee County v. Lowery, 136 P.3d 639(2006).
In one of the first state supreme court decisions issued after Kelo, theOklahoma Supreme Court held that "economic development alone does not( 24 )( 25 )(名城'07)

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constitute a public purpose[.]" 175 In that case, Muskogee County brought con-exercise of eminent domain in furtherance of economic development in thedemnation proceedings against landowners for the purpose of acquiring right-

absence of blight.180

of-way easements for the placement of three water pipelines, two of which
would solely service Energetix, L.L.C, a private electric generation plant pro-

The court explained that its decision was "reached on the basis of Oklahoma's

posed for construction and operation in the County.176 The landowners objected

own special constitutional eminent domain provisions[.]" 181 The court observedto the proceedings "primarily on the basis that the takings were not for a validthat "[w]hile the Takings Clause of the U.S. Constitution provides "nor shall

public purpose, but rather an unlawful taking of private property for private

private property be taken for public use without just compensation," thepurpose." 177 The trial court sided with the County but the appellate court re-

Oklahoma Constitution places further restrictions by expressly stating "[n]oversed, holding that the takings were unlawful because they were for the "direct

private property shall be taken or damaged for private use, with or without

benefit of a private company and not for 'public purposes[.]'" 178 The County ap-

compensation." 182 Although the Oklahoma constitution expressly lists excep-

pealed.

tions for common law easements by necessity and drains for agricultural, min-Agreeing with the appellate court, the Oklahoma Supreme Court reasoned:ing and sanitary purposes, the proposed purpose of economic development falls
within none of these categories:183

We adhere to the strict construction of eminent domain statutes in keepingwith our precedent, mindful of the critical importance of the protection of

To permit the inclusion of economic development alone in the category ofindividual private property rights as recognized by the framers of both the"public use" or "public purpose" would blur the line between "public" andU.S. Constitution and the Oklahoma Constitution. If we were to construe"private" so as to render our constitutional limitations on the power of emi-

"public purpose" so broadly as to include economic development within thosenent domain a nullity. If property ownership in Oklahoma is to remainterms, then we would effectively abandon a basic limitation on government

what the framers of our Constitution intended it to be, this we must not

power by "wash[ing] out any distinction between private and public use of

do.184

property-and thereby effectively delet[ing] the words "for public use" from[the constitutional provisions limiting governmental power of eminent domain.]"179

Accordingly, the court held that "economic development alone does not constitute a public purpose and therefore, does not constitutionally justify theCounty's exercise of eminent domain." 185

The court specifically distinguished this case from Kelo:

Burien v. Strobel Family Investments, 2006 Wash. App. LEXIS 1136 (June 12,
Contrary to the Connecticut statute applicable in Kelo, which expressly2006) UNPUBLISHED OPINION, review denied by Washington Supreme Court,

authorized eminent domain for the purpose of economic development, we

149 P. 3d 378 (Wash. 2006).

note the absence of such express Oklahoma statutory authority for the57−1･2−471 (名城 '07)

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that the City's exercise of eminent domain to condemn a restaurant for a new

Given the absence of actual or constructive fraud, the court held that the"Town Square" development was not arbitrary or capricious.186 The decision

City's determination to condemn the entire property was necessary to facilitate

makes no mention of Kelo or the recent public use versus public purpose debate.

a public use.

The court simply applied Washington's three-part test in evaluating eminent

City of Norwood v. Horney, 2006 Ohio LEXIS 2170 (July 26, 2006).

domain:The Ohio Supreme Court was the first state supreme court to accept an emiFor a proposed condemnation to be lawful, the condemning authority must

nent domain case after Kelo.191 In City of Norwood v. Horney, Ohio Supreme

prove that (1) the use is really public, (2) the public interest requires it, andCourt unanimously held, that "an economic or financial benefit alone is insuffi-(3) the property appropriated is necessary for that purpose.187

cient to satisfy the public-use requirement of [the Ohio Constitution]." 192 In thiscase, the City of Norwood entered into a contract with Rookwood Partners Ltd.,The landowner challenged whether the condemnation is "necessary," specifi-("Rookwood") in order to redevelop the plaintiffs' neighborhood.193 Whencally arguing that the City might turn around and sell a portion of the property

Rookwood could not negotiate the sales of certain properties the City initiatedto a private developer, which would benefit that private entity and not thecondemnation proceedings.194 Pursuant to the City code, an urban-renewal study

City.188 The court pointed out, however, that the City Council specifically set

was completed before the City instituted the eminent domain proceedings.195 The

forth and determined that the property would be used only for public streets,

study concluded that the neighborhood was a "deteriorating area" as that term

public parks, or public parking.189 Moreover, the court explained that "[w]here

is defined in the Norwood Code.196 At trial, the court found that the study "con-property is taken, ... with the intention of using it for a certain purpose speci-

tained numerous errors and flaw" and the City's planning director testified only

fied in the ordinance authorizing the taking, as was done in this case, the city,that the neighborhood "probably would" deteriorate or was in danger of deterio-

doubtless, has the authority to change said contemplated use to another andrating or becoming a blighted area.197 In light of this evidence, the trial court

entirely different use, whensoever the needs and requirements of the city sug-found that the City abused its discretion insofar as it had found that the neigh-gest." 190 In holding that the city council's determination that the property wasborhood was a "slum, blighted or deteriorated area."198 The court concluded,"reasonably necessary and required" for the development, the court reasoned:

however, that the City did not abuse its discretion in finding that the neighborhood was a "deteriorating area." 199 The landowners appealed.

When it comes to such discretionary details as the particular land chosen,

In reversing the trial court's decision, the Ohio Supreme Court specifically de-

the amount of land needed, or the kinds of legal interests in that land thatclined to hold "economic benefits alone to be a sufficient public use for a valid

are necessary for the project, many Washington decisions have said that the

taking." 200 The court found that analysis by the Supreme Court of Michigan incondemnor's judgment on these matters will be overturned only if there isCounty of Wayne v. Hathcock201 and the dissenting judges of the Supreme Court

proof of actual fraud or such arbitrary and capricious conduct as wouldof Connecticut and the dissenting justices of the U.S. Supreme Court in Kelo, areamount to constructive fraud.

"better models" for interpreting the Ohio Constitution.202 In applying the57−1･2−469 (名城 '07)

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analysis therefrom, the court held that "an economic or financial benefit alone

Talley v. Housing Authority of Columbus, Georgia, 630 S.E.2d 550 (Ga. Ct. App.

is insufficient to satisfy the public-use requirement in the Ohio Constitution. In

2006):

light of that holding, any taking based solely on financial gain is void as a mat-

The Court of Appeals of Georgia took the Supreme Court's reasoning in Keloter of law and the courts owe no deference to a legislative finding that the pro-to heart holding that the state's Urban Redevelopment Law ("URL") allowed

posed taking will provide financial benefit to a community." 203 The court

property to be condemned for transfer to a private party.211 In Talley, theexplained that "[a]lthough economic benefit can be considered as a factor

Housing Authority of Columbus, Georgia ("HACG") instituted condemnation

among others in determining whether there is a sufficient public use and benefit

proceedings against a subdivision lot and its owners.212 The HACG paid $17,500

in a taking, it cannot serve as the sole basis for finding such benefit."204for the property in 1994.213 Five years later, the HACG sold the same property to

Next, the court turned to the City's eminent domain statute. The court deter-a private citizen for $42,800.214 In 2003, Logie Talley, one of the former lot own-

mined that the void-for-vagueness doctrine applies to statutes that regulate theers, instituted a pro se action claiming that the HACG unlawfully took his prop-

use of eminent-domain powers and that courts should apply "heightened scru-

erty and demanded its return.215 Talley further argued that HACG abandoned

tiny" when reviewing such statutes.205 The court held that the use of the term

all public use of the property in 1999 when it sold it to a private citizen.216 The"deteriorating area" as a standard for determining whether private property istrial court granted summary judgment to the HACG without explanation.217

subject to appropriation was "void for vagueness and offends due process rights

On appeal, the court held that the challenge to the legality of the 1994 taking

because it fails to afford a property owner fair notice and invites subjective in-was barred by principles of res judicata and collateral estoppel due to the con-terpretation." 206 The court found that "deteriorating area" was a "standardlessdemnation proceedings that took place that year.218 Talley's claim regarding

standard" and that the City code "merely recites a host of subjective factors thatpublic use, however, was appropriate for consideration.219 The court first looked

invite ad hoc and selective enforcement." 207 The court further held that in any

at the URL:

event the term could not be used as a standard for a taking because it "inherently incorporates speculation as to the future condition of the property into theEnacted in 1955, the URL authorizes Georgia municipalities and counties,

decision ... rather than focusing that inquiry on the property's condition at theeither directly or through urban redevelopment agencies or housing autho-time of the proposed taking." 208 The court reasoned that "[s]uch a speculative

rities, to exercise the power of eminent domain for the acquisition and rede-standard is inappropriate in the context of eminent domain, even under thevelopment of urban property which has been found to be a "slum area" asmodern, broad interpretation of 'public use.'" 209 Moreover, "[a] municipality has

defined in the URL. To effectuate redevelopment of condemned property,

no authority to appropriate private property for only a contemplated or specu-

the URL authorizes a housing authority to sell, lease or otherwise transfer

lative use in the future." 210condemned property "for public use"; or for various specified private uses,
i.e., "residential, recreational, commercial, industrial"; or for "other uses."220The court then turned to Kelo for guidance and reiterated the Supreme57−1･2−467 (名城 '07)

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Court's reasoning that such takings are permissible under the Fifth Amend-

Supreme Court focused on the City of New London's deliberative and me-ment of the United States Constitution, and it is left up to the states to enact

thodical approach to formulating its economic development plan.226

more restrictive condemnation laws if they so choose.221 The court observed that
"Georgia's nonrestrictive URL and its underlying constitutional authorization

With this in mind, the court noted the "stark contrast" between the "exhaus-remain in place. Therefore, the HACG was entitled to summary judgment ontive preparatory efforts" that the NLDC took in Kelo, and the RIEDC's approach

Talley's complaint that it abandoned any 'public use' of the property [upon sale]in this case by using the state's quick-take statute.227 The court concluded thatto a private citizen for 'other uses,' as such disposition of condemned property iscondemnation was inappropriately "motivated by a desire for increased revenue

authorized by the URL." 222

and was not undertaken for legitimate public purpose." 228

Rhode Island Economic Development Corp., v. The Parking Company, L.P., 892

Didden v. Villiage of Port Chester, 173 Fed. App. 931 (2d Cir. 2006)

A.2d 87 (R.I. 2006):

UNPUBLISHED OPINION, cert denied 2007 U.S. LEXIS 1036 (U.S. Jan. 16, 2007):

The Rhode Island Supreme Court also took a que from Kelo, when it stressed

Recently, the Supreme Court declined to hear an eminent domain extortion

the importance of good faith and due diligence in determining public use. In

case. In Didden, a dispute arose between private developers over a development

Rhode Island Economic Development Corporation ("RIEDC" ) v. The Parking

project.229 In 1999, the Village of Port Chester authorized a land disposition

Company, Limited Partnership ("TPC" ), the RIEDC Board condemned a tempo-

agreement with G&S Port Chester, LLC ("G&S") for a redevelopment project.230

rary easement over a parking garage for the duration of the term of the lease

The agreement covered the use of eminent domain incidental to the implementa-

TPC held for the garage.223 TPC was not informed of the hearing and the trial

tion of the project and the Port Chester Board of Trustees found that there wascourt, satisfied with the amount of compensation offered, found in favor ofa legitimate public purpose for condemnation.231 Plaintiffs claim that Gregory

RIEDC.224 Upon notice of the order, TPC appealed averring, inter alia, that the

Wasser, the principle of G&S, demanded that they pay him the sum of $800,000

taking was not for a public use.

or give him a partnership interest in their project, or else he would cause Port

The Rhode Island Supreme Court agreed with TPC and held that the RIEDC

Chester to condemn their properties and thereby divest Plaintiffs of title at a

"failed to satisfy the public use requirement of the Takings Clause." 225 The court

meeting in 2003.232 Plaintiff's refused and their property was condemned pursu-

explained that:

ant to the agreement G&S had with Port Chester. Plaintiff's challenged the proceedings but their claims were deemed time-barred by the three-year statute of

The United States Supreme Court's recent holding in [Kelo], while uphold-limitations due to the fact that they had notice in 1999 of the likelihood of con-ing a taking for economic development purposes, stressed the condemning

demnation proceedings against them.233 Plaintiff's appealed.

authority's responsibility of good faith and due diligence before it may

The Second Circuit agreed with the trial court regarding the time bar but

start its condemnation engine. In determining whether an economic devel-

went on to explain that the Plaintiff's would not have a claim even if the statuteopment project qualifies as a public use, under the Takings Clause, theof limitation had not run. On appeal, the Plaintiffs claimed that Wasser's threat

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to condemn their property unless Plaintiffs gave him either $800,000 or a part-virtually eliminated in federal court. What yellow light of caution the handfulnership interest in the business on the property amounts to an unconstitutionalof recent cases signaled has now turned back to green, and government may

exaction.234 The court, however, held that "no exaction has occurred here" be-once more acquire private property by eminent domain on the slightest of publiccause the Plaintiffs did not have any conditions placed upon their property dur-

purpose pretexts unless such a use is inconceivable or involves an impossibility,

ing their ownership that limited their ability to use their property.235

the tests following Midkiff in 1984. In other words, it's now all about process,Moreover, the court held that the Plaintiff's allegation of an extortionate de-and process only. There is no doubt that state and local governments will domand of $800,000 to avoid condemnation added nothing of legal significance tomuch good in terms of public welfare and public benefits flowing from economic

their claims.236 G&S and Wasser have the authority under the agreement to ob-revitalization under such a relaxed standard, as they have often done in theligate Port Chester to pursue condemnation of properties within the project's

past. They will do so with increased attention to carefully-drafted plans andboundaries.237 As such, threats to enforce their legal rights are not actionable.238

procedures guaranteeing maximum public exposure and participation, both em-

Therefore, even if Wasser did request payment in exchange for relinquishing thephasized in the majority opinion. Moreover, members of the Court during oral

legal right to request condemnation, Plaintiffs have no recourse.239 The court ob-argument suggested rethinking how to calculate and award "just" compensation

served that the New York Eminent Domain Procedure Law "does not require thein extenuating circumstances such as those in New London now that the publiccondemner to negotiate with a private property owner in good faith prior touse clause is a mere procedural hurdle. And yet, the public use clause is moreseeking to acquire title to the property." The Plaintiff's appealed to the U.S.

than simple policy; it is a bedrock principle contained in the Bill of Rights

Supreme Court but cert was denied in January 2007.

amendments to our Federal Constitution, designed not to further the goals anddesires of the majority, but as a shield against majoritarian excesses at the ex-

A Requiem for Public Usepense of an otherwise defenseless minority−like the Kelos. Surely we could havefound grounds to preserve that shield in federal court.242

There was very little left of the public use clause−at least in federal court−
even before the Kelo decision. While a growing handful of state (and federal decisions applying state law on property) decisions found economic revitalization





public purposes invalid on constitutional grounds,240 an equal number of deci-

1

Dankert, Ch. 11, Planning for Codemnation−the Condemnor's Problems,

sions agreed with the Connecticut Supreme Court that this was a valid public

in Institute on Planning, Zoning and Eminent Domain, 1989, at s. 11. 03.

use. Clearly this is the view of hundreds of state and local revitalization and re-

See Albert Hanson Lumber Co. v. U.S., 261 U.S. 581, 587 (1923) and U.S.

development agencies.241 Whether one reads the Court's previous jurisprudence

v. Carmack, 329 U.S. 230, 241-242 (1946).

on public use broadly, as Justice Stevens does for the Court's majority, or more

2

narrowly, as does the dissent, it is difficult to argue with the conclusions
reached separately by Justices O'Connor and Thomas: the public use clause is57−1･2−463 (名城 '07)

( 34 )

See Erasmus, Eminent Domain Jurisprudence, at 1-2 (ALIABA Courseof Study, 1993).

3West River Bridge Co. v. Dix, 47 U.S. 507 (1848).

( 35 )(名城'07)

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Public Use / Public Purpose After Kelo v. City of New London

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説

4

29A Corpus Juris Secumdum 2. 169.

20

Id. at 33-34.

5

United States Const., Amend. V.

21

Id. at 34-35.

6

1A Nichols, Eminent Domain, §3.03 [3]; Cline v. Kansas Gas & Elec. Co.,

22

Midkiff, 467 U.S. at 232-233.

260 F.2d 271 (10th Cir. 1958).

23

Id. at 233.

1A Nichols, Eminent Domain, §3.03 [3]; Mott v. Eno, 181 N.Y. 346, 14

24

Id. at 234-235.

N.E. 808 (1905).

25

Id. at 235.

1A Nichols, Eminent Domain, §3.03 [1]; An unauthorized taking may be

26

Id. at 240.

validated by a subsequent ratification. Swayne v. Hoyt, Ltd. V. U.S., 300

27

Id. at 241.

U.S. 297, 81 L.Ed. 659, 57 S.Ct. 478 (1937).

28

Kelo, 545 U.S. at 487, n.19 (citing Eastern Enterprises v. Apfel, 524 U.S.

7

8

9

10

1A Nichols, Eminent Domain, §3.03 [1]; Cincinnati v. Vester, 281 U.S.

498, 545 (1998)). For a compendious list of such "horribles" see Dana

439, 74 L.Ed. 950, 50 S. Ct. 360 (1930).

Berliner, Public Power, Private Gain (2003), available at http://www.

1A Nichols, Eminent Domain, §3.03 [1]; Tacoma v. State, 4 Wash. 64, 29

castlecoalition.org/publications/report/index.html.

P. 847 (1892).

29

Id. at 473-74.

11

1A Nichols, Eminent Domain, §3.04 [2].

30

Id.

12

1A Nichols, Eminent Domain, §3.04 [2]; Steinhart v. Mendocino County

31

Id. at 475.

Ct., 137 Cal. 575, 70 P. 629, 59 L.R.A. 404, 92 Am. St. Rep. 183 (1902).

32

Id.

13

348 U.S. 26 (1954).

33

Id.

14

467 U.S. 229 (1984).

34

Id. However, it now seems that some of the condemned parcels owned by

15

545 U.S. 469 (2005).

plaintiffs were in fact in the path of proposed new streets and roads−

16

Ranging from the lengthy historical analysis provided by Justicewhich, of course, would have always qualified them for public purpose

Thomas in dissent (he would have the Court return to original meaning

takings. See George?, Redevelopment Takings After Kelo: What's Blightin the 18th century in which most eminent domain cases appear to require

Got To Do With It? ＿ L.R. ＿.

actual use by the public, though Justice Stevens reads some of the same

35

Id.

history quite differently by choosing other cases from that period upon

36

Id.

which to rely) to concentration only on mid to late 20th century cases by

37

Id.

Justice Stevens for the majority and Justice O'Connor in dissent.

38

Id. at 476.

17

Berman, 348 U.S. at 31.

39

Id. at 476-77.

18

Id. at 32.

40

Id. at 477.

19

Id. at 31.

41

Id. at 478, n.6.

57−1･2−461 (名城 '07)

( 36 )( 37 )(名城'07)

57−1･2− 460

Public Use / Public Purpose After Kelo v. City of New London

論

説

42

Id.

57

Id. at 489.

43

Id, at 478.

58

Id. at 493 (Kennedy, J., concurring).

44

Id, at 483.

59

Id.

45

Id, at 484.

60

Id. at 497 (O'Connor, J., dissenting) (citing Cincinnati v. Vester, 281

46

Id, at 478, n.6.

47

Id, at 484. While widely touted as a victory for planning and planners, at

61

Id. at 494.

least one commentator thinks not. See Daniel H. Cole, Why Kelo Is Not

62

Id. at 496.

Good News For Local Planners and Developers, 22 Ga. St. U. L. Rev. 803

63

Id. at 500.

(2006).

64

Id. at 501.

48

Id, at 480.

65

Id. Justice O'Connor also confesses error (her own as well as the

49

Id.

Court's) in ever equating public use and the police power, from which,50

Id. (quoting Berman, 348 U.S. at 33 (1954)).

she accurately observes, much of the expanded doctrine of public use into

51

Id, at 483.

broad public purpose, and particularly deference to legislative determi-

52

Id. at 477.

nations of public purpose, derive.

53

Id. at 487-88.

66

Id. at 503.

54

544 U.S. 528 (2005).

67

Id. at 504.

55

Kelo, 545 U.S. at 488-89.

68

Id. at 505.

56

Id. at 490, n.21 Other countries provide a measure of extra compensation

69

Id. at 522 (Thomas, J., dissenting).

where, as here, it is a private residence which is condemned and the land-

70

Id.

owner has a demonstrable emotional attachment to the improved land.

71

Id. at 523.

See, e.g., the Australian concept of solatium, amounting to up to 10% ad-

72

See, for more information on these groups, www.ij.org and www.castle-

U.S. 439 (1930)).

ditional compensation beyond fair market value in such circumstances,
briefly noted (among other compensation issues) in Lee Anne Fennell,coalition.org.
73

Lisa Knepper and John Kramer, Iowa Legislature Overrides Eminent

The Death of Poletown: The Future of Eminent Domain and Urban

Domain Reform Veto: Historic Event Secures Greater Property Protec-

Development After County of Wayne v. Hathcock: Taking Eminenttion, July 14, 2006, http://www.castlecoalition.org/media/releases/

Domain Apart, 2004 MICH. ST. L. REV. 957, 1004 (2004), and referenc-

7̲14̲06pr.html.

ing Murray J. Raff's more lengthy description in Chapter 1 of Kotaka

74

Castle Coalition, 50 State Report Card, available at http://www.castle-

and Callies (ed) TAKING LAND: COMPULSORY PURCHASE AND

coalition.org/publications/report̲card/index.html (last visited at July

LAND USE REGULATION IN ASIAN-PACIFIC COUNTRIES (2002).

26, 2007); Castle Coalition, Legislative Action Since Kelo, available at57−1･2−459 (名城 '07)

( 38 )( 39 )(名城'07)

57−1･2− 458

Public Use / Public Purpose After Kelo v. City of New London

論

http://www.castlecoalition.org/pdf/publications/State-Summary-Pub-説

http://www.castlecoalition.org/media/releases/11̲8̲06pr.html.

lication.pdf (last visited at Oct. 7, 2006).

80

Id.

Alabama (2005 AL S.B. 68A), Alaska (2005 AK H.B. 318), Colorado

81

Proposition 207 (Arizona), available at http://www.castlecoalition.org/(2006 CO H.B. 1411), Delaware (2005 DE S.B. 217), Florida (2006 FL H.B.

legislation/ballot-measures/index.html (last visited on Oct. 7, 2006).

1567, 2006 FL H.B. 1569, 2006 FL V. 8), Georgia (2005 GA H.B. 1313, 2005

82

Id.

GA H.B. 1306), Idaho (2006 ID S.B. 1243, 2006 ID S.B. 1247, 2006 ID H.B.

83

Id.

555), Illinois (2006 IL S.B. 3086), Indiana (2006 IN H.B. 1010), Iowa

84

Id.

(2005 IA H.B. 2351), Kansas (2005 KS S.B. 323), Kentucky (2006 KY

85

Vote no on Proposition 207!, http://www.noprop207.org (last visited at

H.B. 508), Louisiana (2006 LA S.B. 1, 2006 LA S.B. 43A, 2006 LA H.B.
707), Maine (2006 ME L.D. 1870), Maryland (2007 MD S.B. 3), Michigan

Oct. 7, 2006).
86

Letters to the Editor, Prop. 207 is a Trojan horse, THE ARIZONA(2005 MI S.J.R. E), Minnesota (2005 MN S.B. 2750), Missouri (2006 MO

REPUBLIC, Oct. 8, 2006, available at http://www.azcentral.com/arizona-

H.B. 1944), Montana (2007 MT S.B. 41, 2007 MT S.B. 363), Nebraska

republic/opinions/articles/1008sun1-08.html.

(2005 NE L.B. 924), Nevada (2007 NV A.B. 102), New Hampshire (200587

NH S.B. 287), New Mexico (2007 NM H.B. 393, 2007 NM S.B. 401), North

John Kramer and Lisa Knepper, 2006 Election Wrap Up: Voters
Overwhelmingly Passed Eminent Domain Reform.

Carolina (2006 NC H.B. 1965), North Dakota (2007 ND S.B. 2214), Ohio

88

Id.

(2005 OH S.B. 167), Pennsylvania (2005 PA H.B. 2054, 2005 PA S.B. 881),

89

Id.

South Carolina (2006 SC S.B. 1031), South Dakota (2006 SD H.B. 1080),

90Mark Ballard, Property Proposal's Supporters Claim Radio Turned Tide,

Tennessee (2005 TN H.B. 3450), Texas (2005 TX S.B. 7B), Utah (2006 UT
S.B. 117), Vermont (2005 VT S.B. 246), Virginia (2007 VA H.B. 2954),

THE ADVOCATE, A4, Oct. 2, 2006.
91

S. Res. 851, 84th Leg., Reg. Sess. (La. 2006) (enacted). See Louisiana

Washington (2007 WA H.B. 1458), West Virginia (2006 WV H.B. 4048),

Secretary of State, Statement of Proposed Constitutional Amendments,

Wisconsin (2005 WI A.B. 657), Wyoming (2007 WY H.B. 124).

September 30, 2006, http://www.sos.louisiana.gov/elections/MISC/CA̲

75

Castle Coalition, 50 State Report Card.

Statements.pdf (last visited on Oct. 7, 2006).

76

Id.

92

S. Res. 851, 84th Leg., Reg. Sess. (La. 2006) (enacted).

77

See Castle Coalition's Legislative Center, available at http://www.castle-

93

John Kramer and Lisa Knepper, 2006 Election Wrap Up: Voters Over-

78

79

coalition.org/legislation/local/index.html (last visited at July 26, 2007).

whelmingly Passed Eminent Domain Reform; Proposal 06-4 (Michigan),

See http://sos.mt.gov/ELB/archives/2006/Ballot̲Issues.asp. (last vis-

available at http://www.legislature.mi.gov/documents/2005-2006/joint-

ited on Nov. 12, 2006).

resolutionenrolled/Senate/pdf/2005-SNJR-E.pdf.

John Kramer and Lisa Knepper, 2006 Election Wrap Up: Voters Over-

94

Id.

whelmingly Passed Eminent Domain Reform, Nov. 8, 2006, available at

95

Id.

57−1･2−457 (名城 '07)

( 40 )( 41 )(名城'07)

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Public Use / Public Purpose After Kelo v. City of New London

論

説

96

Id.

coalition.org/legislation/federal/index.html (last visited on Oct. 17,

97

Id.; Question No. 1 (New Hampshire), available at http://www.gencourt.

2006).

state.nh.us/legislation/2006/CACR0030.html.

115

Id.; H.R. 3058, 109th Cong. (2005) (enacted).

98

Id.

116

H.R. 3058, 109th Cong. §726 (2005) (enacted).

99

John Kramer and Lisa Knepper, 2006 Election Wrap Up: Voters Over-

117

Id.

whelmingly Passed Eminent Domain Reform.

118

Id.

Id.

119

GAO-07-28, Eminent Domain: Information About Its Uses and Effects

100

101 Measure 39 (Oregon), available at http://www.castlecoalition.org/legis-

On Property Owners and Communities Is Limited, available atlation/ballot-measures/index.html (last visited on Oct. 7, 2006).

http://www.gao.gov/new.items/d0728.pdf

102

Id.

120 Castle Coalition, Legislative Action Since Kelo, available at http://www.

103

Id.

castlecoalition.org/pdf/publications/State-Summary-Publication.pdf (last

104

Id.

visited at Oct. 7, 2006).

105

Id.

121 See Castle Coaltion, Legislative Center: Current Proposed Federal Legis-

106 Editorial, Don't Deprive Oregon of A Key Economic Tool, THE OREGONIAN,

lation On Eminent Domain, available at http://www.castlecoalition.

B6, Oct. 4, 2006.
107

org/legislation/federal/index.html (last visited on Oct. 17, 2006).

Id.

108 Laura Oppenheimer, Foes of Land Takings Widen Aim, THE OREGONIAN,

122

Id.

123

Lisa Knepper and John Kramer, U.S. Senate Eminent Domain Reform

B1, Sept. 25, 2006.

Deadline Tomorrow

109

Id.

Time is Running Out For Federal Government to Stop Funding Abuse,

110John Kramer and Lisa Knepper, 2006 Election Wrap Up: Voters Over-

Sept. 29, 2006, http://www.castlecoalition.org/media/releases/9̲29̲06pr.

whelmingly Passed Eminent Domain Reform; Amendment 5 (South

html.

Carolina), available at, http://www.castlecoalition.com/legislation/ballot-

124 Hotlining is an expedited process that allows congressional leadership tomeasures/index.html.
111

present a bill to the entire chamber for unanimous approval.

John Kramer and Lisa Knepper, 2006 Election Wrap Up: Voters

125John Kramer and Lisa Knepper, Senate Fails to Pass Eminent Domain

Overwhelmingly Passed Eminent Domain Reform

Reform: Thousands Remain Subject To Federally Funded Eminent

112

Id.

Domain Abuse, Dec. 11, 2006, http://www.castlecoalition.com/media/re-

113

Id.

leases/12̲11̲06pr.html.

114 See Castle Coaltion, Legislative Center: Current Proposed Federal Legislation

On

Eminent

57−1･2−455 (名城 '07)

Domain,availableat

126 Id.

http://www.castle-127( 42 )( 43 )

John Kramer and Lisa Knepper, Eminent Domain Reform To Be
(名城

'07)

57−1･2− 454

Public Use / Public Purpose After Kelo v. City of New London

論

Introduced in U.S. House of Representatives: Property Owners Still Left

148 Id. at 268.

Unprotected from Federally Funded Abuses Two Years After Kelo, July

149 Id. at 270.

12, 2007, http://www.castlecoalition.com/media/releases/7̲12̲07pr.html

150

Housing and Redevelopment Authority of the City of Bloomington v.
Bloomington Professional Building, LLC, 2007 WL 224272, ＊ 3 (Minn.

(last visited on July 27, 2007).
128 Id.
129

説App., Jan 2007)

Franco v. Nat'l Capital Revitalization Corp., 2007 WL 2001652, ＊5 (D.C.

151 Id. at ＊6.

App, July 2007).

152 Lingle v. Chevron, 544 U.S. 528 (2005).

130 Id.

153

131 Id.

MHC Financing Ltd. Part. v. City of San Rafael, 2006 WL 3507937, ＊1(N.D. Cal., Dec. 2006).

132 Id. at ＊9.

154 Id. at ＊2.

133 In the matter of 49 WB, LLC v. Village of Haverstraw, 2007 WL 1775976,

155 Id. at ＊10.

＊

156 Id. at ＊14.

3 (N.Y.A.D., June 2007).

134 Id.

157 Id.

135 Id. at ＊7-8.

158

136 Id. at ＊10.

City of Baltimore Development Corp. v. Carmel Realty Assoc., 395 Md.
299, 316-18 (Nov. 2006).

137 Id. at ＊10-11.

159 Id. at 318.

138 Id. at ＊12.

160 Western Seafood Company v. U.S., 202 Fed. Appx. 670, 672 (5th Cir. Oct.

139 Goldstein v. Pataki, 488 F. Supp.2d 254, 287 (E.D.N.Y, June 2007).

2006).

140 127 S.Ct. 1955 (2007).

161 Id.

141 Centene Plaza Redevelopment Corp. v. Mint Properties, 2007 WL 1695163

162 Id. at 677.

(Mo., June 2007) (en banc).

163 Id. at 674.

142 Id. at ＊5.

164 Id. at 677.

143 Id. at ＊6.

165 Nevadans for the Protection of Property Rights, Inc. v. Heller, 141 P.3d.

144

Litva v. Village of Richmond, 2007 WL 1976592, ＊ 5 (Ohio App. June2007).

1235, 1238-39 (Nev. Sep, 2006).
166 Id. at 1244.

145 Id.

167 Id. at 1247.

146

168

Mayor and City Council of Baltimore City v. Valsamaki, 397 Md. 222,
255-56 (Feb 2007).

2006).

147 Id. at 263.
57−1･2−453 (名城 '07)

Hoffman Family, LLC v. City of Alexandria, 272 Va. 274, 281 (Sep.

169 Id. at 289.
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Public Use / Public Purpose After Kelo v. City of New London

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170 Id. at 290, n7.

193 Id. at ＊13-14.

171

Century Land Group, LLC v. Mayor & Council of the Borough of Key-

194 Id. at ＊15.

port, 2006 WL 2457846, ＊2 (N.J. Super. L., Aug 2006).

195 Id. at ＊14-15.

172 Id. at ＊5.

196 Id. at ＊15.

173 Id. at ＊9.

197 Id. at ＊17-18.

174 Id.

198 Id. at ＊19.

175

Board of County Comm'rs of Muskogee County v. Lowery, 136 P.3d 639,

199 Id. at ＊20.

650 (2006).

200 Id. at ＊64.

176 Id. at 641.

201 684 N.W.2d 765 (2004).

177 Id. at 644.

202 Horney, 2006 Ohio LEXIS at ＊66.

178 Id. at 645.

203 Id. at ＊68-69.

179

Id. at 647. (quotations and brackets in original) (citing Kelo, 545 U.S.

204 Id. at ＊68.

469, (2005) (O'Connor, J., dissenting)).

205 Id. at ＊10.

180 Id. at 650.

206 Id. at ＊81-82.

181 Id. at 651.

207 Id. at ＊78.

182 Id. at 652.

208 Id. at ＊82.

183 Id.

209 Id. at ＊79.

184 Id.

210 Id.

185 Id. at 650.

211

186 Burien v. Strobel Family Investments, 2006 Wash. App. LEXIS 1136, ＊1213 (June 12, 2006).

Talley v. Housing Authority of Columbus, Georgia, 630 S.E.2d 550, 553(Ga. Ct. App. 2006).

212 Id. at 551.

187 Id. at ＊6. (citations omitted).

213 Id.

188 Id. at ＊8.

214 Id.

189 Id.

215 Id.

190 Id. at ＊9. (quotations and citations omitted).

216 Id.

191

John Kramer and Lisa Knepper, Ohio Supreme Court Accepts Eminent

217 Id.

Domain Abuse Case, Oct. 3, 2005, http://www.ij.org/private̲property/

218 Id.

norwood/10̲3̲05pr.html.

219 Id.

192 City of Norwood v. Horney, 2006 Ohio LEXIS 2170, ＊68-69 (July 26, 2006).
57−1･2−451 (名城 '07)

説( 46 )

220 Id. at 552.
( 47 )(名城'07)

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Public Use / Public Purpose After Kelo v. City of New London

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説

221 Id.

Phelps and Phillips, LLP, July 2005); John R. Nolon and Jessica Bacher,

222 Id at 553.

Fallout from Kelo, NEW YORK LAW JOURNAL, Oct. 19, 2005. For a

223

Rhode Island Economic Development Corp., v. The Parking Company,

full treatment of the issues raised by the Kelo decision, see Dwight H.

L.P., 892 A.2d 87, 93 (R.I. 2006).

Merriam and Mary Massaron Ross (eds) EMINENT DOMAIN USE

224 Id. at 94.

AND ABUSE: KELO IN CONTEXT (2006)

225 Id. at 103.
226 Id. at 104.
227 Id.
228 Id.
229

Didden v. Villiage of Port Chester, 322 F. Supp. 2d 385, 387 (S.D. N.Y.
2004).

230

Id. at 388. See, for a full restatement of the facts, Didden v. Villiage ofPort Chester, 304 F. Supp. 2d 548 (S.D. N.Y. 2004).

231 Id.
232 Id. at 390.
233 Id. at 389.
234 Id.
235 Id.
236 Id. at 390.
237 Id.
238 Id.
239 Id.
240 See, e.g., the decisions in Hathcock, supra n.5; Southwestern Illinois Dev.
Auth. v. Nat'l City Envtl., 768 N.E.2d 1 (Ill. 2001).
241 See Berliner, supra n.18.
242 For examples of commentary on both sides of the national debate on thedecision, see, e.g., Daniel H. Cole, Kelo's Legacy, 37 E.L.R. 10540 (2007);
Michael M. Berger, COURT GOES "CLUELESS": NOW PUBLIC USE
MEANS WHATEVER! IN REAL ESTATE PERSPECTIVE, (Manatt,57−1･2−449 (名城 '07)

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57−1･2− 448