Eminent Domain Due Process
Hudson, D. Zachary, The Yale Law Journal
NOTE CONTENTS INTRODUCTION I. THE CURRENT STATE OF EMINENT DOMAIN LAW A. State Eminent Domain Statutes 1. Providing Full Process Rights 2. The Complete Abrogation of Procedural Rights 3. Steering the Middle Course B. State Eminent Domain Case Law II. THE EVOLVING RELATIONSHIP OF EMINENT DOMAIN AND DUE PROCESS A. The Early History of Eminent Domain B. The Declaration of Taking Act and the Catlin Case 1. Challenging the Taking Act 2. Disposing of the Catlin Problem C. The Due Process Revolution D. Modern Property and Due Process Rulings III. MODERN DUE PROCESS AND EMINENT DOMAIN A. What Process Is Due B. The Content of Due Process C. The Consequences of Due Process IV. AN EXCEPTION TO MODERN DUE PROCESS ANALYSIS CONCLUSION APPENDIX
In the wake of the Supreme Court's decision in Kelo v. City of New London, (1) state legislatures, academics, and activists all expressed their concern for the status of property rights. In the face of the ever impending threat of the government's eminent domain power, Kelo seemed to stand for the sweeping proposition that private property could be condemned by a public entity whenever such an action was economically beneficial. A swell of statutes and scholarship quickly followed, suggesting that additional procedures should be put in place to curb potential governmental abuse of the takings power. On the legislative front, many states altered their eminent domain statutes or amended their constitutions to ensure that economic development could not serve as a legitimate basis for exercising the state's eminent domain power. (2) Some commentators proposed that states impose additional transparency requirements to ensure that the processes used to determine whether to exercise the eminent domain power were open to the public. (3) Others suggested that local government actors voluntarily adopt rules to make the exercise of the eminent domain power procedurally more difficult. (4) Still others have argued that regardless of what level of government requires it, additional process is necessary so that the judiciary can provide a check on the use of eminent domain. (5)
Whatever one makes of these legislative reforms and scholarly suggestions to afford greater procedural protections against the use of the eminent domain power, at an absolute minimum, the Due Process Clause should guarantee that landowners receive notice and an opportunity for some sort of hearing on the legality of a taking before land is actually taken. Despite the fact that the Constitution clearly states that property cannot be taken without due process, neither federal nor state case law uniformly recognizes the necessity of applying basic procedural protections in the eminent domain context. This fact has led many state courts to arrive at a conclusion seemingly contrary to the plain text of the Constitution and counterintuitive to modern conceptions of property and procedural rights: due process does not apply to state eminent domain actions.
The troubling implications of this faulty legal conclusion are made plain by a recent eminent domain action in the state of Rhode Island. In 1986, the Rhode Island Department of Transportation (RIDOT) and The Parking Company (TPC) entered into an agreement giving TPC the exclusive rights to operate parking facilities at the T.F. Green International Airport (Green International) in exchange for TPC's construction of a new parking garage (Garage 1). (6) During the 1990s, in response to robust economic growth in the Providence area, RIDOT turned over control of its airport services to a subsidiary of the Rhode Island Economic Development Corporation (EDC), which decided to build a second parking garage at Green International (Garage 2). In response to increased demand for valet parking, EDC and TPC entered into an additional agreement specifying that the lower portions of Garage 1 would be used to provide valet service. …