Eminent Domain-For the Greater Good? the U.S. Supreme Court Decision in Kelo V. New London Has Prompted States to Look at Their Own Eminent Domain Practices

Article excerpt

When Suzette Kelo received a notice from the city of New London, Conn., to vacate her property, little did she or the city know that they were about to embark upon an historic journey that would wend its way to the U.S. Supreme Court. And little did she know that the case that ensued, Kelo v. New London, would prompt legislatures in several dozen states to look at their eminent domain practices.

The New London Development Corporation, a public/private effort promoting mix-used developments, wanted Kelo's property in order to redevelop some 90 acres of her mostly working-class neighborhood. Employing the use of eminent domain, they were trying to make way for a multi-million dollar conference center and hotel complex designed to complement a new $270 million global research facility owned by Pfizer Incorporated.

The city argued that the proposed redevelopment served a "public purpose" by creating new jobs, increasing tax revenue and leading to urban revitalization that would benefit the entire community. Kelo countered that condemning private property for economic development did not qualify as a "public use" under the state and federal constitutions.

But the Supreme Court, in a 5 to 4 vote in June, decided in favor of New London. The Court determined that the comprehensive nature of the city's redevelopment plan, which was adopted pursuant to a state statute, served a public purpose that satisfied the public use requirements of the constitution. It deferred to legislative judgment in defining public use, as it had in previous court decisions. At the same time, the Court invited more state legislation by emphasizing that nothing in its decision precluded a state from restricting the use of eminent domain for economic development purposes.


Legislatures are following suit. At least 12 states that were in session following the Court's decision considered bills to restrict the use of eminent domain for economic development purposes. Four of them--Alabama, Delaware, Ohio and Texas--passed laws.

For critics of eminent domain, Kelo represents a practice that has become increasingly prevalent. "By our own count, over a 5-year period, we have found about 10,000 instances where a local government either used or threatened to use eminent domain in order to take a home or parcel of property from one person and give it to another," says Dana Berliner, a senior attorney with the Institute for Justice, a property rights group that represented Kelo and her fellow New London homeowners before the Supreme Court.

"It is obviously more widespread and commonly practiced than most people could ever imagine," she says. "And it is a power that essentially allows a government entity to take any person's home away from them, to ruin their business or destroy their lives, whatever the case may be."


But for city and state officials across the country, eminent domain is a vital tool, and in some cases the only tool left when it comes to improving a blighted area, transforming dangerous, abandoned and oftentimes drug-infested neighborhoods into modern mixed-use retail and residential complexes that not only create new jobs but also generate tax revenue.

"I can't even imagine how bad it would be if this tool was taken away from us," says William J. Kearns, the general counsel to the New Jersey State League of Municipalities.

"Every city has within its borders large areas of land that are sitting there unused or are in a deteriorated or dangerous condition," says Kearns.

"It would be nice if the owners of these kinds of properties would step forward and arrive at a fair market price for what they own and then sell it," Kearns says. "But all too often, owners can't be found or have no concern about the condition the property is in, and feel no responsibility to the surrounding area. To take away a city's power to change that means huge areas of blight would remain just that, and would probably only grow larger. …