TAKINGS AND THE ENVIRONMENT SEMINAR
ASSIGNMENT 5
Kelo and Its Progeny
Reading:
Kelo v. City of New London, 545 U.S. 469 (2005)
Notes and Questions:
1.
Following the Supreme Court’s decision in Kelo, the law of public use—which seemed to
be well-settled after Midkiff—became one of the most controversial doctrines in American
constitutional law. According to a Wall Street Journal/NBC News poll, “In the wake of the
court's eminent domain decision, Americans overall cite ‘private-property rights’ as the current
legal issue they care most about, topping parental notification for minors’ abortions or state
right-to-die laws.” Wall Street Journal, July 15, 2005, at A4.
2.
As Justice Stevens explains in his opinion of the Court, condemnation of private property
for civic redevelopment projects has been recognized as a public use since Berman, and the
constitutional policy of judicial deference to federal, state, and local governmental decisions
about the appropriate use of the power of eminent domain goes back as far as Gettysburg.
Would the dissenters overrule these decisions? Please note that, while Justice O’Connor
observes that Midkiff recognized that a “purely private taking” would violate the public use
requirement, she does not mention the deferential standard of review of this question that she
articulated in her opinion of the Court in Midkiff: “Where the exercise of the eminent domain
power is rationally related to a conceivable public purpose, the Court has never held a
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compensated taking to be proscribed by the Public Use Clause.” Does Justice O’Connor
persuasively distinguish her own opinion of the Court in Midkiff?
3.
What standard of judicial review of public use cases would the Kelo dissent adopt?
Would the dissenters in Kelo overrule Midkiff? Would it be good policy to hold that all
condemnations of private property for civic redevelopment projects—at least where the property
will be owned and managed by another private entity following completion of the project—are
unconstitutional? Under this standard, what degree of public ownership, control, or access
would satisfy the public use standard? Who would make this decision—the courts or the
governmental entity that exercised the power of eminent domain? What standard of judicial
review should apply to this analysis?
4.
Are you persuaded by Justice Thomas’ analysis of the history of takings for public use?
Do the 19th and early 20th Century cases support his interpretation? Do you agree with Justice
Thomas’ emphasis that the public use requirement (as well as the takings clause generally)
creates a judicially enforceable right of equal status with other provisions of the Bill of Rights?
5.
If the Kelo dissenters gain a majority and overrule the governing public use law, which of
the following projects would satisfy their public use standard:

Condemnation of a variety of retail stores, small businesses, and private rental housing to
make way for construction of a new Transbay Terminal in San Francisco.

Condemnation of Red’s Java House on the Embarcadero for construction of a new
deepwater port for cruise ships docking at the Port of San Francisco. What if the project
includes a variety of private businesses, such as restaurants and shops?

Condemnation of private homes and residential rental units in a “blighted” part of San
Francisco as part of an urban redevelopment project that will include new housing and
retail establishments.
6.
What is the point of Justice Kennedy’s concurring opinion in Kelo? Does it limit the
majority’s definition of public use in any significant way?
7.
The reaction to Kelo was highly critical. The Wall Street Journal’s editorial, published
just after the decision, provides a good example of the tenor of the debate:
They Paved Paradise
Wall Street Journal, June 20, 2005
Last week's Supreme Court ruling that local governments have more or less
unlimited authority to seize private property has had us thinking of an old Joni Mitchell
lyric: "They paved paradise and put up a parking lot/With a pink hotel, a boutique and a
swingin' hot spot."
"The Big Yellow Taxi" ought to be the theme song for the grassroots movement
that is springing up in reaction to the Court's ruling in Kelo v. New London. Many people
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aren't too familiar with the government's power of` "eminent domain." But when they
learn that five Supreme Court justices believe New London, Connecticut, was justified in
trying to evict homeowners in order to make way for a private hotel and corporate
offices, the reaction is: How can I keep that from happening to me?
As it happens, the Court's ruling offers a way out, inviting states to take remedial
action. "Nothing in our opinion precludes any State from placing further restrictions on
its exercise of the takings power," Justice John Paul Stevens wrote for the 5-4 majority.
At least 10 states—Arkansas, Florida, Illinois, Kentucky, Maine, Michigan,
Montana, South Carolina, Utah and Washington—already forbid the use of eminent
domain for economic development (while permitting it for legitimate "public use," such
as building a highway). Six states—Connecticut, Kansas, Maryland, Minnesota, New
York and North Dakota—expressly allow private property to be taken for private
economic purposes. The rest haven't spoken on the issue.
But just wait. In Connecticut this week the house and senate debated legislation
to forbid the taking of private homes for private economic development except in the case
of blight. The bill failed, but Robert Ward, the Republican house minority leader and the
bill's sponsor, says he plans to widen it to include takings of all private property and reintroduce it next month. He already has indications of support from Democrats who have
been hearing from constituents outraged over Kelo.
In Washington, Senators John Cornyn (R., Texas) and Bill Nelson (D., Florida)
introduced legislation this week to bar the feds from using the power of eminent domain
for private economic development as well as prohibit states from using federal money for
that purpose.
Scott Bullock, a lawyer who represented the New London homeowners in the
Supreme Court, says his clients have been "besieged with expressions of support."
Yesterday the Institute for Justice, the public interest law firm for which Mr. Bullock
works, announced a $3 million "Hands Off My Home" campaign. It will work with local
activists to fight government seizures of private property and pass state laws limiting the
use of eminent domain.
Meanwhile, Justice David Souter may soon get an up-close-and-personal lesson
in how Kelo can affect ordinary homeowners. An outraged citizen announced this week
that he is starting the application process to build a hotel on property owned by the
Justice in New Hampshire. The "City of Weare will certainly gain greater tax revenue
and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to
own the land," Logan Darrow Clements said in a press release. Mr. Clements plans to call
his new development the "Lost Liberty Hotel."
[Fortunately for Justice Souter, the Town Council voted down the condemnation
proposal.]
8.
The following week, Professor Richard Epstein of the University of Chicago Law School
published a highly critical commentary on Kelo::
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Richard A. Epstein, Supreme Folly
Wall Street Journal, June 27, 2005
Last week's regrettable 5-4 decision in Kelo v. City of New London marks a new low
point in the Supreme Court's takings jurisprudence. The Constitution allows private property to
be taken for public use only on payment of just compensation. But what counts as public use? In
Kelo, Justice John Paul Stevens held that courts, especially federal courts, should be hugely
deferential to a government decision, done after comprehensive hearings, to displace one private
property owner in favor of a second private party in the name of overall economic development.
To understand why Kelo is truly horrible, it is necessary to look both at Kelo and the
constitutional logic of public use requirement. On the former, the declining economic fortunes of
New London spurred the city elders to embark on a general urban development plan,
underwritten by $73 million in state money devoted to general planning, physical infrastructure
and environmental cleanup. The plan lacked only one ingredient—some real live developer
prepared to risk his own capital to build any office or hotel on part of the 90 or so acres the City
already had.
Not content with its overheated vision, New London's plan envisioned taking down about
15 old homes overlooking Long Island Sound, to be used for some unidentified form of "park
support." Fancy new private homes were not listed on the plan. None of the endless frustration
and delays in implementing its grand plan were attributable to the decision of some landowners to
fight New London. Quite simply, the slow rate of development made obsolete some of the
original projects, such as a luxury hotel to support a new nearby Pfizer facility. Pfizer could not
wait 10 years to house its visiting dignitaries. One obvious compromise position, therefore,
should have appealed even to the five member majority on the Supreme Court: to force the City
to postpone the condemnation of these private homes until the City revealed its hand.
No such luck with Justice Stevens, for in his view New London had made its case when it
asserted, without evidence, that the new projects would both increase tax revenues and create new
jobs. It hardly mattered that its projections had been pulled out of thin air and were already
hopelessly out of date when the case reached the Supreme Court. All that need be shown to
Justice Stevens was procedural regularity and some claim that the proposed project served some
"public benefit."
Astute readers will quickly note that the phrase "public benefit" is far broader than the
constitutional words "public use." That last phrase clearly covers only two situations. The first
arises when land is taken to build government facilities, such as forts, or to construct
infrastructure, such as highways, open to all. The second covers those cases where property is
taken by, or conveyed to, private parties who are duty bound to keep it open to all users. Private
railroads and private grist mills, both of which are subject to the common carrier obligation of
universal service, are two obvious examples. Note too that once a given use is properly identified
as public, it does not matter for constitutional purposes whether the project is wise or is as foolish
as New London's redevelopment program. The constitutional inquiry is over once it is proved
that the project falls into these categories. Factually, the standard of review hardly matters, for it
takes little genius to prove that a given structure is a fort or a highway.
There are, however, good reasons why the public use language has long been extended to
cover some cases of takings for private purposes with indirect public benefits. One recurrent
problem of social coordination arises when one party is in a position to blockade the productive
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ventures of another. To take a real historical example, assume that the owner of a mine (who has
no choice on where to dig) can only get his ore to market by ferrying it over scrub lands owned
by another individual. That second landowner can demand a huge chunk of the mining profits for
his trivial contribution to the overall venture. For over 100 years, the Supreme Court has allowed
the state to condemn the obstructing property for the mine owner upon payment of just
compensation, here measured by the trivial losses sustained by the obstructing landowner. The
net gains from blocking the holdout are huge.
The great intellectual blunder of the public use law over the past 50 or so years is that it
has wrenched the public benefit language out of this narrow holdout context. In the mid-1950s,
the Supreme Court held that takings were for public use when they were intended to relieve
various forms of urban "blight"—a slippery term with no clear constitutional pedigree. Thirty
years later, the Court went a step further by allowing Hawaii to force landlords to sell their
interests to sitting tenants, as a means to counteracting ostensible "oligopolistic" market
conditions. Now any "conceivable" indirect social benefit would do, without regard to the
attendant costs.
Given this past legacy, Justice Stevens found it easy to take New London at its word.
Any comprehensive public project will produce some benefit for someone, so that—as Justices
O'Connor and Thomas stressed in dissent—his test always allows the legislature to gin up some
rationale for taking public property for just compensation (which alas falls far short of making the
individual landowner whole: legal, appraisal and moving costs, for example, are systematically
ignored). But the slightest bit of reflection should have shown just how the new public use cases
have migrated from the old mining cases, or even under the Hawaii statute, which did not
displace sitting tenants.
In the present case, Susette Kelo and her fellow plaintiffs have not tried to extract some
unconscionable gain out of some sensible business venture. They have no desire to sell their
homes at all. At the same time their subjective losses have been enormous. It was a perfectly
sensible line for the Court to say when subjective values are high, and holdout problems are
nonexistent, the requisite public use is not present.
The Court could only arrive at its shameful Kelo ruling by refusing to look closely at past
precedent and constitutional logic. Courts that refuse to see no evil and hear no evil are blind to
the endemic risk of factional politics at all levels of government. And being blind, this bare
Supreme Court majority has sustained a scandalous and cruel act for no public purpose at all.
9.
Following the decision in Kelo, forty-four states enacted legislation to restrict the
authority of state agencies and local governments to condemn private property for public use.
See CASTLE COALITION, 50 STATE REPORT CARD TRACKING EMINENT DOMAIN REFORM
LEGISLATION SINCE KELO. A link to this report may be found on the “Assignments” web page.
10.
California changed its eminent domain law by initiative in June 2008, when the electorate
passed Proposition 99 by a vote of 62% to 38%. Proposition 99 amended Article I, Section 19 of
the California Constitution to provide:
(b) The State and local governments are prohibited from acquiring by eminent domain an owner-occupied
residence for the purpose of conveying it to a private person.
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(c) Subdivision (b) of this section does not apply when State or local government exercises the power of
eminent domain for the purpose of protecting public health and safety; preventing serious, repeated
criminal activity; responding to an emergency; or remedying environmental contamination that poses a
threat to public health and safety.
(d) Subdivision (b) of this section does not apply when State or local government exercises the power of
eminent domain for the purpose of acquiring private property for a public work or improvement.
Is this an adequate and appropriate response to Kelo? Are the exemptions set forth in
subsections (c) and (d) likely to swallow the change in the law contained in subsection (b)?
11.
The other state laws are a mixed bag. Some of the new laws directly address the issue in
Kelo. According to Professor Ilya Somin:
Fourteen state legislatures have enacted laws that either abolish or significantly constrain economic
development takings. The most sweeping of these laws are Florida’s and New Mexico’s, which not only
abolish condemnations for economic development, but also ban all blight condemnations, even those that
occur in areas that would meet a strict definition of the term. Florida and New Mexico therefore became
the second and third states to abolish blight condemnations, following in the footsteps of Utah, which did
so prior to Kelo.
Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo, 93 Minn. L. Rev.
2100, 2138 (2009). Many of the other laws, however, create or preserve exemptions for
“blighted areas,” and they define blight so broadly that most buildings in low income areas
would qualify for condemnation. The Illinois eminent domain statute is representative. As
described by Professor Somin, this statute
exempts blight condemnations from its ban on economic development takings and retains its preexisting
definition of blight, which defined a blighted area as one where “industrial, commercial, and residential
buildings or improvements are detrimental to the public safety, health, or welfare because of a
combination of 5 or more of the following factors.” The list of factors include dilapidation; obsolescence;
deterioration; below minimum code standards; illegal use of structures; excessive vacancies; lack of
ventilation, light, or sanitary facilities; inadequate utilities; excessive land coverage and overcrowding of
structures and community facilities; deleterious land use or layout; environmental clean-up; lack of
community planning; or an assessed value that has declined three of the last five years. The concept of
“detriment” to “public welfare” is extremely broad and surely includes detriment to local economic
welfare and development.
Id. at 2125 (quoting 65 Ill. Comp. Stat. 5/11-74.4-3(a)(1) (2006)).
12.
Other aspects of the political aftermath of Kelo are described in the following articles:
Carolyn Lcohhead, Foes in Congress Unite in Defense of Property
S.F. Chronicle, July 1, 2005
House and Senate Republican leaders, backed by Democratic African American liberals,
moved rapidly Thursday on legislation to blunt last week's Supreme Court decision allowing local
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governments to seize private property for economic development projects. Rep. Maxine Waters,
a liberal Democrat from South Central Los Angeles, and Rep. Richard Pombo, a rock-ribbed
conservative Republican from rural San Joaquin County—who rarely join forces on any issue—
were among a group that introduced a bill to cut off federal funds for cities that use eminent
domain for such projects.
"Democrats and Republicans, conservatives and liberals are going to be organizing
behind opposing the Supreme Court decision,'' Waters said. "It's like undermining motherhood
and apple pie. I mean, people's homes and their land—it's very important, and it should be
protected by government, not taken for somebody else's private use." Pombo, a longtime
property rights advocate, said anger at the court's 5-4 decision in a case from New London,
Conn., had united rural landowners with suburbanites and city dwellers fearful that cities will eye
their homes for hotels, malls or any commercial use they think will generate more tax revenue.
The Supreme Court "is way out of line on this,'' Pombo said. "There's nothing in the Constitution
that allows them to step in and take property away from an individual and give it to somebody
else."
The action in Congress comes just months after Republicans suffered intense criticism for
trying to intervene in court decisions to remove life support for Terri Schiavo in Florida and as
Capitol Hill readies for a clash over a potential Supreme Court vacancy.
The case was brought by the libertarian Institute for Justice and pitted nine landowners in
New London against the city's efforts to build a marina, office and retail space on waterfront
property near a new $300 million research facility built by pharmaceutical giant Pfizer Corp. The
nine homeowners included Susette Kelo, who bought her home in 1997, and Wilhelmina Dery,
who has lived in her home since her birth in 1918.
The Fifth Amendment's eminent domain clause allows government to take private
property for public use. Traditionally, this has meant land to build railroads, highways, schools
and other public facilities. The government pays property owners a fair market price in exchange
for the land. The question before the court was whether economic redevelopment projects that
convert private property to other private uses constitute a "public purpose."
The court, led by Justice John Paul Stevens, concluded that it does, arguing that the
justices should defer to the decisions of local governments rather than "crafting an artificial
restriction on the concept of public use." Justice Sandra Day O'Connor dissented, joined by three
conservative justices, saying the decision would allow condemnation of any property. "For who
among us can say she already makes the most productive or attractive possible use of her
property?" O'Connor argued. "Nothing is to prevent the state from replacing any Motel 6 with a
Ritz-Carlton, any home with a shopping mall, or any farm with a factory."
In eight states, not including California, state high court rulings provide a higher level of
property protection than the U.S. Supreme Court decision, said Dana Berliner, a lawyer with the
Institute for Justice.
The legislation introduced Thursday, backed by the chairman of the House Judiciary
Committee, Rep. James Sensenbrenner, R-Wis., and its ranking Democrat, Rep. John Conyers of
Michigan, would deprive cities of any federal funds for redevelopment projects that use the
power of eminent domain. In a first step toward the legislation, the House voted 231-189
Thursday in favor of an amendment to an appropriations bill that would bar the departments of
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Transportation, Treasury, and Housing and Urban Development from providing money to cities
that use eminent domain for profit-making projects.
Pombo said he has no worries about criticism that Congress is again trying to interfere
with the judiciary, "because we're right on this. Honestly, I'd be shocked if anybody voted
against this bill." Pombo noted that two prominent liberal organizations, the NAACP, a civil
rights group, and AARP, a retiree group, sided with the property owners. "It doesn't take a genius
to look at this and figure out who's going to be hurt by it," Pombo said. "It's not the big
developers. It's not the wealthy. They have influence. They can stop the city council from
taking their property. It's the poor guy who doesn't even know who his city councilman is that's
going to be hurt."
Pombo, of Tracy, won his seat in Congress and now chairs the House Natural Resources
Committee in part because of his long crusade to protect landowners from alleged "regulatory
takings" of their property through enforcement of such laws as the Endangered Species Act. The
Kelo decision raises the stakes, he said. "This isn't about taking some farmer's ranch for
endangered species habitat," Pombo said. "This is about taking your house because the city
thinks it has a better use. This affects every homeowner in the country."
House Democratic leader Nancy Pelosi of San Francisco opposes the bill and said
Republicans are trying to interfere with the judiciary again. "This is in violation of the respect for
separation of . . . powers in our Constitution," Pelosi said. Pelosi was careful not to say she
approved of the high court's ruling. But she said the decision has been made and will require a
constitutional amendment to reverse.
People for the American Way, which is leading liberal opposition to President Bush's
judicial nominees, noted that the Kelo ruling is among several narrowly divided decisions that
demonstrate the importance of the fight over any Supreme Court vacancy. Elliot Mincberg, the
group's legal director, said the case had been brought by the Institute for Justice as part of an
effort by conservatives to elevate property rights to the same level of civil rights such as freedom
of speech and religion, in effect taking the nation back to the pre-New Deal days when the courts
ruled child labor laws unconstitutional. Mincberg said the court had ruled that "legislatures
should decide if a taking is for public use, and we shouldn't get to review it based on the vague
wording of the Constitution."
Waters countered that city councils are not a good place for such decisions. "I am
offended by the idea that a big, rich pharmaceutical company could get this kind of decision to
build condominiums around a complex they built," Waters said. "I worry about these little cities
and towns where big, wealthy developers can influence elected officials with large campaign
contributions and undermine what public use and eminent domain was meant to be."
Berliner, of the Institute for Justice, said poor areas were not the only ones targeted.
"Developers want prime real estate, so that's what cities condemn," Berliner said. "That means
waterfront property, property in the center of cities, property near transportation hubs, property in
areas that are up and coming. All of those routinely get condemned for private development."
[The Private Property Rights Protection Act, H.R. 4128, 109th Cong. (2005), passed the House
of Representatives by a 376 to 37 margin, but died in the Senate.]
Jim Herron Zamora, Eminent Domain Ruling Chills Property Owners
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S.F. Chronicle, July 18, 2005
An Oakland auto shop owner wants to save a business his family has owned since 1949.
The owner of a dilapidated Art Deco theater in Alameda is resisting plans to replace it with a
multiplex, while a 70-year-old man who wants to erect a "green" building in Santa Cruz is
fighting city efforts to seize his vacant lot. Those and other property battles in Northern
California have gained new attention since the U.S. Supreme Court's 5-4 decision last month
made it easier for local governments to force unwilling property owners to sell using eminent
domain.
The decision, based on a Connecticut case in which a city wanted to tear down an older
waterfront neighborhood and turn it over to a developer, makes it easier for cities and counties to
help rebuild aging downtowns and construct projects such as BART transit villages. Emboldened
by the high court's ruling, the agencies argue that economic development benefiting a region
outweighs individual property rights.
But it has also led to a growing backlash and galvanized an odd coalition: Conservative
property rights advocates see eminent domain as big government run amok, while liberals and
minorities view it as a tool for powerful developers to tear up communities and bully the little
guy. "No one should have to worry about losing your home to some politically connected
developer," said state Sen. Tom McClintock, R-Thousand Oaks. "There are 6,000 public
agencies in California that now have the power to seize your home, pay you pennies on the dollar
for it, and then give it to somebody else for their own personal gain and profit."
On Thursday, McClintock and state Sen. Dean Florez, D-Shafter (Kern County),
introduced a bill to prevent public agencies from taking land from one private owner and giving it
to another for development purposes. And conservative U.S. Rep. Richard Pombo, R-Tracy, is
working with liberal urban representatives Maxine Waters, D-Los Angeles, and John Conyers of
Michigan to deny federal funds to cities that use eminent domain to benefit private developers.
"It's kind of a strange coalition," Pombo said Friday. "But there is something about taking your
property this way that makes lots of Americans angry. The reason that we have a Bill of Rights is
to protect individuals from the majority." If passed, the bills would stop projects in Alameda and
Santa Cruz, and could force changes in Oakland and dozens of other cities.
Redevelopment is a process that allows cities to keep a bigger portion of future property
tax revenues in a given area, which can amount to millions of dollars if businesses move in and
new homes are built. That process has allowed San Francisco to rebuild much of the South of
Market area and Emeryville to transform itself from an industrial slum to a regional shopping
hub.
Cities with pending projects point out the long-term benefits of redevelopment. In Santa
Cruz, the city has rebuilt much of downtown after the Loma Prieta earthquake devastated the area
in 1989. In Alameda, city officials are using redevelopment to bring in new businesses, including
what they hope will be the city's first multiplex theater.
Local government must declare the target zone to be blighted in order for it to become
eligible for redevelopment. That once was relatively easy in many communities. Much of
Oakland below Interstate 580, for example, has been a redevelopment area for decades. But with
property values skyrocketing in the Bay Area, many residents have become wary of
redevelopment and panic at the idea of eminent domain. "Redevelopment is good way to keep
money in a community and fund improvements that we can't afford any other way," said Oakland
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City Councilwoman Jane Brunner, who has been meeting with skeptical residents and neighbors
about plans to turn much of the North Oakland flatlands into a redevelopment area. "But I
respect the concerns of people who worry about this. . . . This is a discussion we need to have."
At a community meeting Wednesday, Brunner pointed out projects that redevelopment
has funded in the city—new development adjacent to the Fruitvale BART station and attractive
new sidewalks and bike trails along Mandela Parkway in West Oakland. In Oakland, many of the
properties that the city has bought and resold to developers in the past were nearly abandoned
structures or buildings that were covered with graffiti. But on July 1, John Revelli and Tony
Fung were evicted from their profitable but small owner-operated auto repair shops near the 19th
Street BART station to make way for the Uptown Project, which is expected to include nearly
1,200 apartments and condominiums. The development, which is receiving a $61 million public
subsidy, is the centerpiece of Mayor Jerry Brown's plan to bring 10,000 more residents to
downtown Oakland.
Revelli, 65, grew up helping his father and uncle in the family tire shop and worked there
full time since he was 19. "I just want to stay in business," Revelli said after giving his keys to a
city employee. "But it's impossible for me to find another location that good in downtown
Oakland. We owned the property and had low overhead. I can't match that at another site. They
put me out of business."
Eminent domain has also left bitter feelings in San Jose and Redwood City, where
property owners successfully resisted efforts to force them to sell. In San Jose, a multiethnic
group of merchants at the Tropicana Shopping Center won its court battle in 2003 and stopped a
city effort to condemn the mall as blighted and turn it over to a private developer for
redevelopment. City officials have not decided whether to try again in light of the Supreme Court
decision.
In Redwood City, the Celotti family finally agreed last year to sell their downtown
property to city's redevelopment agency—for about five times its original offer. Their decision
followed a San Mateo County Superior Court ruling that the city could not use eminent domain to
condemn the property. But the ruling came too late—the Celottis' building had been demolished
in 2003. The city paid them $3 million and made a formal apology as part of the settlement.
Ron Lau of Santa Cruz and John Cocores in Alameda are fighting redevelopment efforts
despite the Supreme Court decision. Lau, 70, owns a now-vacant lot that formerly housed a
popular downtown bookstore and cafe that were seriously damaged in the earthquake. Lau, 70,
wants to create "a self-sufficient, fully green building" on the lot but has been unable to obtain
financing for his project. In an effort to hasten development, the city is trying to force him to sell
so another developer can take over. "I don't like being pressured,'' said Lau, who rejected $1.6
million for his lot on Pacific Avenue. "I care about this property and what happens to it.
Otherwise I would have sold out."
Cocores owns the 1932-vintage Alameda Theater and some adjacent storefront property
on Central Avenue near Park Street in Alameda. The city offered him $1.5 million in May for the
33,000-square- foot concrete and steel- frame structure. But Cocores' real estate agent said the
property would be worth more than twice that figure if not for the looming threat of eminent
domain. "We're real far apart on the price," said Cocores' agent, Don Lindsey. "That property
was appraised at $3 million. It's not fair to force him to take less."
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Pombo, who tracks local eminent domain disputes, pledges that help is on the way. "A
movie theater, a department store or a mall are not public uses," Pombo said Friday. "They are
not taking this land to build roads to schools or parks; they are just helping politically powerful
interests. I'd like to stop projects like these dead in their tracks. "
Ralph Blumenthal, Humble Church is at Center of Debate on Eminent Domain
N.Y. Times, Jan. 25, 2006
With bulldozers churning up the earth at the front door, the small Centennial Baptist
Church in this struggling industrial hub west of Tulsa seems about to fall to the wrecker. But the
construction is just roadwork, for now. And that is all it will ever be if the congregation has its
way. "The Lord didn't send me here to build a mini-mall," said the longtime pastor, the Rev.
Roosevelt Gildon.
In what a local newspaper called "a battle between God Almighty and the almighty
dollar," Sand Springs is moving ahead with a redevelopment plan to clear the church and other
occupants from the rundown district near downtown to make way for superstores like the Home
Depot. "I'm open to anyone telling me how we're going to pay for city services," said Mayor Bob
Walker, who said the city was seeking to negotiate fair prices with Mr. Gildon and other property
owners—41 offers have been accepted—and would use eminent domain only as a last resort.
Strengthened by a United States Supreme Court ruling last summer that approved the
condemnation of private property by New London, Conn., for resale to other private interests for
what the court called "public purpose," municipalities around the country are considering similar
forced takings, to a chorus of opposition by local interests and state legislators. Bills to block
such seizures are on the docket in Oklahoma and many other states, along with other ballot
initiatives. Last summer, the Texas Legislature banned the taking of private property for more
lucrative public ventures.
Here in Sand Springs, a city of 17,600 on the Arkansas River founded by Charles Page,
the oilman, industrialist and philanthropist, the redevelopment plan dates from 2003. County
voters agreed to add fractions of a penny to the sales tax for special projects, in the Sand Springs
case $14.5 million to acquire private tracts on 96 acres along the highway for redevelopment. But
the project was thrust into the national spotlight on Jan. 17 with an article posted on National
Review Online by a conservative group, Americans for Limited Government, based in Glenview,
Ill., that has been working with Oklahomans in Action and other groups to gather signatures for
the "Protect Our Homes" movement and budget-curbing measures on state ballots. "It's not just
grandma's house we have to worry about," wrote Heather Wilhelm, communications director for
the limited government group. "Now it's God's house, too."
The Sand Springs Leader stepped up coverage of Mr. Gildon, and a local radio host,
Dillon Dodge, broadcast a program on the dispute. "Hannity and Colmes," the talk show on the
Fox News Channel, plans a program from Sand Springs on Wednesday, Ms. Wilhelm said. City
officials, mortified at being portrayed as villains, protested that they had not seized any property
and might not. "Eminent domain is not being used at this time to acquire property," City Manager
Loy Calhoun said in a statement Friday. "Media reports to the contrary are inaccurate." But in
interviews, Mr. Calhoun and Mayor Walker acknowledged that it remained a last resort if the city
and property owners could not agree on price.
11
Mr. Gildon, sitting in a pew of the church that he has led for 14 years, the last seven in a
new building that cost $90,000, said he and other leaders of the congregation met last week with a
relocation agent working for the city, the Cinnabar Service Company, and came away believing
that they had little choice but to sell. "If you tell me this is going to happen," he said, "that tells
me it's eminent domain." He said the offer of $142,000 for the church and two extra lots was not
enough to move to a new location where he could serve his 50 or so regular members. He said he
was "praying over" the question of a counteroffer. "If I have to move," he said, "we're not going
out of existence."
Mr. Gildon, 48, who works full time for a machine tool manufacturer and is paid $520 a
month by the church, said he was not leading a crusade on the issue and made a point of not
bringing it up it up in his sermons. "I've had to say, 'Don't let it go to your head,' " he said he told
congregants. "We're not celebrities. We're here for God." But he said he was no pushover, either.
He taped the meeting with the Cinnabar agent, John Thomas, and said he told city officials, "The
Lord did not lead me here to sell out the church."
If the parties cannot agree, a team of three appointed appraisers devises a final offer, and
whether or not the seller is happy, the city can take it for that price - and sell it to someone else.
Other property owners in the first 25-acre redevelopment zone said they felt that the city's initial
offer of $1 a square foot was far too low. A fairer figure, several said, would be $8.50. "I don't
have a problem with the city," said Joe Harrison, who runs the Firestone dealership downtown. "I
just don't want them stealing my land."
In the Muffler Stop a few blocks from the church, Ernie Nanney said the city first offered
him $65,000 "which is less than I paid 25 years ago." He said that he counter-offered $350,000
and that the city came back with $85,000. In her small wood-frame house on Oak Street, Ray
Jean Smith-Knight, 72, said that when she grew up a few houses away the neighborhood was "a
little old Wall Street" of black professionals, and survivors of the Tulsa race riot of 1921 were
welcomed to Sand Springs by Charles Page. Ms. Smith-Knight said that she had yet to receive a
buyout offer and that despite the deterioration of the area did not relish leaving. "I'm not happy
about it but I don't have a choice," she said. "So many people have passed away that used to be
fighters. One or two cannot fight."
Ruth Ellen Henry, founding director of the Sand Springs Cultural and Historical
Museum, recalled a cleanup of the neighborhood a dozen years ago that removed a million
pounds of debris but failed to halt its slide. She still has many friends there, she said, "but you
can't say they tore down paradise and built a parking lot."
John M. Broder, States Curbing Right to Seize Private Homes
N.Y. Times, Feb. 21, 2006
In a rare display of unanimity that cuts across partisan and geographic lines, lawmakers
in virtually every statehouse across the country are advancing bills and constitutional
amendments to limit use of the government's power of eminent domain to seize private property
for economic development purposes. The measures are in direct response to the United States
Supreme Court's 5-to-4 decision last June in a landmark property rights case from Connecticut,
upholding the authority of the City of New London to condemn homes in an aging neighborhood
to make way for a private development of offices, condominiums and a hotel. It was a decision
that one justice, who had written for the majority, later all but apologized for.
12
The reaction from the states was swift and heated. Within weeks of the court's decision,
Texas, Alabama and Delaware passed bills by overwhelming bipartisan margins limiting the right
of local governments to seize property and turn it over to private developers. Since then,
lawmakers in three dozen other states have proposed similar restrictions and more are on the way,
according to experts who track the issue. The National League of Cities, which supports the use
of eminent domain as what it calls a necessary tool of urban development, has identified the issue
as the most critical facing local governments this year. The league has called upon mayors and
other local officials to lobby Congress and state legislators to try to stop the avalanche of bills to
limit the power of government to take private property for presumed public good.
The issue is not whether governments can condemn private property to build a public
amenity like a road, a school or a sewage treatment plant. That power is explicit in the takings
clause of the Fifth Amendment, provided that "just compensation" is paid. The conflict arises
over government actions to seize private homes or businesses as part of a redevelopment project
that at least partly benefits a private party like a retail store, an apartment complex or a football
stadium.
"It's open season on eminent domain," said Larry Morandi, a land-use specialist at the
National Conference of State Legislatures. "Bills are being pushed by Democrats and
Republicans, liberals and conservatives, and they're passing by huge margins." Seldom has a
Supreme Court decision sparked such an immediate legislative reaction, and one that scrambles
the usual partisan lines. Condemnation of the ruling came from black lawmakers representing
distressed urban districts, from suburbanites and from Western property-rights absolutists who
rarely see eye to eye on anything. Lawmakers from Maine to California have introduced dozens
of bills in reaction to the ruling, most of them saying that government should never seize private
homes or businesses solely to benefit a private developer, no matter what compensation is paid.
The Supreme Court seemed to invite such a response in its narrowly written ruling in the
case, Kelo v. City of New London. Justice John Paul Stevens, writing for the majority, expressed
sympathy for the displaced homeowners and said that the "necessity and wisdom" of the use of
eminent domain were issues of legitimate debate. And, he added, "We emphasize that nothing in
our opinion precludes any state from placing further restrictions on its exercise of the takings
power." Two months after the ruling, addressing a bar association meeting, Justice Stevens called
it "unwise" and said he would have opposed it had he been a legislator and not a federal judge
bound by precedent. Plenty of legislators took the hint.
The issue was one of the first raised when Connecticut lawmakers returned to session
early this month. There are bills pending in the Legislature to impose new restrictions on the use
of eminent domain by local governments and to assure that displaced businesses and homeowners
receive fair compensation. (The New London project is essentially delayed, even after the
Supreme Court go-ahead, because of contractual disputes and an unwillingness to forcibly
remove the homeowners who sued to save their properties.) In the New Jersey Legislature,
Senator Nia H. Gill, a Democrat from Montclair who is chairwoman of the Commerce
Committee, proposed a bill to outlaw the use of eminent domain to condemn residential property
that is not completely run down to make room for a redevelopment project. The bill, which is
pending, would require public hearings before any taking of private property to benefit a private
development project.
State Senator John A. DeFrancisco of New York has proposed a measure similar to one
in several other states that would remove the right to exercise condemnation power from
unelected bodies like an urban redevelopment authority or an industrial development agency. Mr.
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DeFrancisco, a Republican from Syracuse, cited the case of a development agency in his
hometown that has used its power to take valuable leases from existing mall tenants to allow a
private developer to expand.
Texas was one of the first states to act after the Kelo ruling, taking up the issue in a
special legislative session that was supposed to focus solely on education. Gov. Rick Perry, a
Republican, signed a bill on Sept. 1 that prohibits use of eminent domain to benefit a private
party, with certain exceptions. Among those exceptions is the condemnation of homes to make
way for a new stadium for the Dallas Cowboys. The sponsor of the Texas measure, Senator Kyle
Janek, Republican of Houston, said the state was weighing a constitutional amendment to cement
the eminent domain restrictions, but that process can take years. He sponsored his bill, he said,
because "We wanted something in place quickly that the governor could sign and would take
immediate effect." The bill could affect a huge highway project now in the planning stages
known as the Trans-Texas Corridor, a public-private toll road and rail project that would require
the taking of large swaths of privately owned land.
There are six proposed laws and five constitutional amendments before the California
Legislature, as well as several proposed citizen initiatives to curb the eminent domain power.
The bills are supported by, among others, the California Farm Bureau Federation, which fears
that the Kelo ruling will empower cities to gobble up more farmland to build subdivisions and
strip malls. The lobbyist for California's local economic development agencies said the ruling
and the resultant legislation had been a nightmare. "My life hasn't been the same since June 23,
2005," said the lobbyist, John F. Shirey, executive director of the California Redevelopment
Association, referring to the date the Supreme Court handed down the ruling. The group
represents 350 local redevelopment authorities around California and believes such agencies need
the eminent domain power to rebuild distressed cities. "I've had to spend practically full time
dealing with this issue and trying to get people to understand the Supreme Court decision didn't
change anything in California law," Mr. Shirey said.
Ohio's legislature, acting swiftly and unanimously after the Kelo decision, declared a
moratorium on all government takings until the end of 2006. The state has created a 25-member
bipartisan panel to study the issue and make recommendations for changes, if necessary, in Ohio's
eminent domain statutes. The sponsor of the moratorium measure, Senator Timothy J. Grendell, a
Republican lawyer who specializes in property rights cases, noted that the Ohio Supreme Court
was now weighing a potentially critical eminent domain case involving the city of Norwood, a
suburb of Cincinnati. In that case, city officials have approved a plan to condemn about 60
private homes to make way for an upscale office and retail complex. The homeowners are
represented by lawyers from the Institute of Justice, a public interest law firm that litigates against
what it calls eminent domain abuse and that represented the plaintiffs in the New London case.
Scott G. Bullock of the Institute for Justice described the Norwood case as an important test of
property rights law in the post-Kelo era, but would not predict how the Ohio court would rule.
He said he hoped to take another case before the Supreme Court in the next few years to
determine whether the courts can curb eminent domain power further, even as state legislatures
act on their own.
Mr. Bullock said he expected municipal officials and redevelopment authorities to try to
fight the wave of eminent domain legislation by offering cosmetic changes to existing law, for
example by requiring an extra hearing or an economic impact statement. But he said that major
changes were coming in how the takings power of government is used. "Our opposition to
eminent domain is not across the board," he said. "It has an important but limited role in
14
government planning and the building of roads, parks and public buildings. What we oppose is
eminent domain abuse for private development, and we are encouraging legislators to curtail it."
More neutral observers expressed concern that state officials, in their zeal to protect
homeowners and small businesses, would handcuff local governments that are trying to revitalize
dying cities and fill in blighted areas with projects that produce tax revenues and jobs. "It's fair to
say that many states are on the verge of seriously overreacting to the Kelo decision," said John D.
Echeverria, executive director of the Georgetown Environmental Law and Policy Institute and an
authority on land-use policy. "The danger is that some legislators are going to attempt to destroy
what is a significant and sometimes painful but essential government power. The extremist
position is a prescription for economic decline for many metropolitan areas around the county."
Patrick Hoge, Vote Goes Against Wal-Mart
S.F. Chronicle, May 24, 2006
The Hercules City Council voted unanimously Tuesday night to take the unprecedented
step of using eminent domain to prevent Wal-Mart from building a big-box store on a 17-acre lot
near the city's waterfront. The vote caused most of the 300 people who had packed Hercules City
Hall for the meeting to break out in cheers and applause. "The city of Hercules is very unique.
People from the outside have to understand that," said Hercules Vice Mayor Ed Balico just before
the vote.
During a 90-minute public comment period that preceded the vote, nearly
everyone who spoke urged the council to fight Wal-Mart. "Throw the bums out," Hercules
resident Steve Kirby said at the podium of Wal-Mart. "Wal-Mart will never understand what we
want." Another resident, Anita Roger-Fields, expressed concern for small businesses in the city,
saying they could be driven out of business by the discount store. "[Wal-Mart is] the worst thing
that could happen to our community. They want to crush the competition."
The vote is the latest twist in a battle between the city and the discount-store chain, which
wants to build a store near the city's historic waterfront. The city contends Wal-Mart's plan to
build a discount store does not fit with its plans to develop the waterfront into a pedestrianoriented village with high-end shops and homes. "I'm elated. This is the result we wanted. The
fact that it was unanimous is wonderful. Our City Council really came through," said Brenda
Smith Johnson, an information technology vice president with JP Morgan Chase in San Francisco
who moved to Hercules in 1992. "I know this is going to be a hard fight but we're up to it."
Some residents were infuriated that Wal-Mart had warned that if the City Council voted
for eminent domain, the move would cost the city millions. "I don't like to be threatened and they
threatened my community," Bob Steiner, a certified public accountant and magician who lives in
Hercules, said after the vote. Only five people spoke in favor of Wal-Mart. "The city has no
guarantees that anybody is going to develop the property if they take it away from Wal-Mart,"
said Hercules resident Andre Wilson.
The vote allows the city to begin proceedings to acquire Wal-Mart's property by force to
achieve its redevelopment goals. Following the vote, Wal-Mart spokesman Kevin Loscotoff said
Wal-Mart will evaluate the situation and decide what to do next.
The city was once a company town, home to a dynamite plant that during World War I
was the nation's leading producer of TNT, and some turn-of-the-century homes that used to house
15
company officials have been restored. The city plans to continue developing land along the
waterfront to fit its vision. "Why should we have to sell ourselves short when we have this great
waterfront," Hercules resident Valerie Wilgus said following the vote. Some residents have said
they would prefer grocery stores such as Whole Foods, Trader Joe's or Andronico's, and specialty
shops like those in Berkeley's swank Fourth Street district.
The vote comes after Wal-Mart rejected a city offer to buy its property earlier this year.
Officials from the nation's largest retailer have said they are determined to open a store on the
company's 17 acres overlooking San Pablo Bay. In a letter to the city on Tuesday, Wal-Mart
attorneys argued that eminent domain was unnecessary because the company had tailored its
project to meet the community's desires, downsizing the proposed store and garden center from
167,000 square feet to roughly 100,000 square feet and designing the shopping center to have "a
very attractive, village-like appearance."
But critics countered that Wal-Mart's latest plan was still more than 50 percent larger
than a store plan approved for the site before the retail giant bought the property. The city was
the first in the state to adopt a redevelopment code that prescribes the design of streets, building
dimensions and some architectural requirements, such as front porches. A key part of the plan
called for a waterfront village with high-density housing and shops, a shoreline park, a train
station, bus service and even a ferry stop.
Carla T. Main, The “Blight” Excuse
Wall Street Journal, June 23, 2007
In Brandon, Ore. there lives a one-armed man named Scott Cook who owns incomeproducing timberland. The state revoked his license to drive a truck on account of his having only
one arm. Then the government decided it wasn't quite through with him: Now his land is being
taken by the town by eminent domain, so his neighbor's golf resort can be expanded. The town
likes the resort because it supplies jobs. Mr. Cook feels certain he will never get what his land is
worth. He is outraged that his town would take land from one man to give to another.
This is called an "economic development" taking, and two years ago—June 23, 2005—the nation
was up in arms over this sort of thing. On that day the Supreme Court decided Kelo v. New
London, and said that it is constitutional for the government to take your property and give it to
someone else if doing so will rake in greater taxes for your town.
Americans were instantly united in bipartisan fury. The U.S. Congress swiftly passed a
resolution condemning Kelo, and the House and Senate introduced a slew of bills, to curb what so
many perceived as the power of eminent domain run amok. More than a hundred bills were
introduced in state legislatures to accomplish the same end, and two states passed moratoriums on
economic development takings. Pundits spilled ink declaring that the Founding Fathers were
spinning in their graves. Spittle flew as politicians grabbed the nearest mike, rushing to condemn
Kelo as the unquestioned death knell of American property rights.
But how is it we still have someone like the soon-to-be-timberless Mr. Cook? Well, a
year went by and the moratoriums were lifted. Congress never did pass any of the bills. Reform
was left to the states. Some states, such as Oregon (hence Mr. Cook's bad luck), California, New
York and New Jersey passed no meaningful reforms. The latter three are among the most active
in these kinds of takings.
16
Some 28 states have passed substantive eminent domain reform since Kelo. Many
enacted laws that prohibited private-to-private transfers for purposes of economic development.
Sounds grand, right? But there's a loophole: blight.
Armed with a blight exception, private property in nearly all of the loophole states may
still be condemned and ultimately used for economic development. Put another way, once a
finding of blight is made, it's anchors away to build whatever the city or a private developer
fancies. This leaves property owners vulnerable to unholy alliances between municipalities and
developers, with condemnation processes that can lack transparency and due process.
In 1954, Supreme Court Justice William O. Douglas unleashed municipalities with the ruling in
Berman v. Parker: The liberal court at its apex unanimously agreed with the notion that the
elimination of blight is a "public use" under the takings clause of the Constitution. But what is
blight? A half-century of experience has demonstrated only that it is in the eye of the beholder, or
perhaps more to the point, in the eye of the power holder.
Blight standards are notoriously subjective; it just isn't that hard to find when one goes
looking for it. And Congress conveniently passed statutes that rewarded municipalities with
federal dough for slum clearance. Bingo! Cities found ever more blight to remove, often and not
coincidentally in neighborhoods inhabited by blacks and Latinos.
Now, even in the backlash against Kelo, eliminating blight as a ground for eminent
domain has proven to be close to impossible. The importance of this problem must not be
underestimated if we are to understand why takings for economic development have been so hard
to stop. Even when common sense would dictate that a project is economic in purpose, it can still
be pursued under an urban renewal plan, i.e., to eliminate "blight." In our post-Kelo world, the
vocabulary of economic development takings may have changed, but in many states the substance
will not, especially as towns learn to teach to the test.
Only Utah and Florida passed statutes that eliminated the blight loophole—stating
plainly, no economic development takings, ever. The relief in Utah was short-lived. On March
20, 2007, Utah reversed course. Gov. Jon Huntsman signed a bill that restores blight to the table
and allows the taking of private property for private development so long as 80% of one's
neighbors concur—a democratic scenario one homeowner called "mob rule."
Florida's law was passed under the white-hot intensity of the Riviera Beach controversy,
a massive project that gained national media attention right after Kelo. This development was the
brainchild of former Mayor Michael Brown, who wanted to "save" his mostly black city by
ejecting some 1,000 homeowners from their modest seaside bungalows that sit on valuable land
not far from Palm Beach. Then a great condo and yacht marina complex could be built on this
formerly "blighted" land.
The post-Kelo media wave, with support from then Republican Gov. Jeb Bush, helped
push Florida's reform bill through and oust the Riviera Beach council, thus killing the project. It
remains to be seen how long condo and yacht club developers, big box retailers and the
lawmakers they lobby will wait in the wings before obtaining changes in Florida's law.
Fellow legislators wonder too. Ohio conducted a year-long, post-Kelo dog-and-pony show of
hearings by an eminent domain task force. It issued a lengthy report—but the legislature has
passed no laws. One member of the task force, unable to envision a world without eminent
domain bulldozers, commented to me about Florida's law: "I don't know how they plan to
renovate their barrios down there."
17
At the other end of the spectrum from Utah and Florida there is New Jersey, which has
seemingly never met an eminent domain project it didn't like. Events in the Garden State are an
object lesson in how post-Kelo politics can devolve. New Jersey Public Advocate Ronald Chen,
appointed by Gov. John Corzine, has championed the cause of basic reforms such as giving
homeowners notice before condemning their property, improving compensation, and putting the
burden on powerful developers to justify a taking by showing that the property is blighted.
As a result, Mr. Chen has found himself mired in the down and dirty muck one finds at the
intersection of real estate and money in New Jersey politics. State senators have publicly
excoriated him in a legislative hearing for something as ordinary as daring to file amicus briefs in
eminent domain cases.
Meanwhile, change has come at an excruciatingly slow pace. Reform bills have been
introduced, but none has passed. Working class octogenarians in Long Branch continue their fight
to keep their small oceanfront homes—now valuable—from the grasp of condo builders; trailer
park residents in Lodi have to litigate to hold on in a town that wants to upgrade its residents. In
Paulsboro, the taking of empty warehouses and vacant land was challenged; the New Jersey
Supreme Court held it does not pass muster to say a property is blighted simply because it is "not
fully productive."
The decision was hailed, though it did not invalidate the redevelopment law that spawns
such takings. Still, it's a faint light in a very dark tunnel, and similar to a decision by Ohio's
Supreme Court, Gamble v. Norwood, in which a working class neighborhood was slated for
urban renewal, not because it was deteriorated, but because it was "deteriorating." The court
struck the term down as unconstitutionally vague.
In the summer of 2005, even as impassioned speeches to protect private property rights
were made to the media on state house steps around the country, resistance was brought to bear
inside by interest groups. The result is a national landscape that continues to include barely
fettered economic development takings under the blight umbrella.
With each Kelo anniversary, the politics will become more partisan as we forget our
initial outrage. While the reforms can improve due process, such as those Mr. Chen recommends,
many have aimed at narrowing -- but not eliminating -- blight exceptions. We need to take care.
Developers will always look for eminent domain bargains, and towns for ways to raise revenue or
rid themselves of undesirable populations. It is not hard to imagine a time when they will set their
sights on the surest bets -- the poor and minorities -- resetting eminent domain on its most
pernicious historical path.
13.
In the first decision by a state’s highest court after Kelo, the Ohio Supreme Court adopted
a restrictive definition of public use. The Court’s interpretation of the Ohio Constitution came in
the case of City of Norwood v. Horney, 110 Ohio 3d 353, 853 N.E.2d 1115 (2006), and is
described in the following article:
Ian Urbina, Ohio Court Rejects Taking of Homes for Project
N.Y. Times, July 27, 2006
The Ohio Supreme Court ruled unanimously yesterday that a Cincinnati suburb cannot
take private property by eminent domain for a $125 million redevelopment project. The property
rights case was the first of its kind to reach a state's highest court since the United States Supreme
18
Court ruled last year that municipalities could seize property for private development that public
officials argue would benefit the community.
The Ohio decision rejected that view, and is part of a broader backlash. Since the ruling
last year, 28 state legislatures have passed new protections against the use of eminent domain.
''This is the final word in Ohio, and it says something that I think all Americans feel,'' said Dana
Berliner, a lawyer with the Institute for Justice, a public-interest law firm in Arlington, Va., who
argued on behalf of the homeowners before the Ohio court. ''Ownership of a home is a basic right,
regardless of what the U.S. Supreme Court may have decided.''
Since the Ohio case was argued based on the state's Constitution, yesterday's decision
cannot be appealed to the United States Supreme Court, which decides matters involving federal
law. The United States Supreme Court decision last year made it clear that state constitutions
could set different standards for property rights.
''The Ohio decision takes the loophole that was left by the U.S. Supreme Court decision
and drives a Mack truck right through it,'' said Richard A. Epstein, a law professor at the
University of Chicago. Mr. Epstein said the decision was especially surprising coming from the
Ohio Supreme Court, which he said had rarely reached unanimous decisions and had often sided
with developers. ''But this decision indicates that the justices were entirely distrustful of planning
officials and developers working under nebulous criteria.''
The Ohio decision involves the city of Norwood, which moved in 2002 to seize about 70
houses for a project to build offices, shops and restaurants in a neighborhood widely viewed to be
deteriorating. Virtually all the property owners sold their land voluntarily, often at prices greatly
above their audited value, state officials said. All but three of the houses at the site have been
bulldozed. ''We're just grateful that this is still a constitutional republic,'' said Joy Gamble, one of
the plaintiffs in the lawsuit against the state. ''We raised our children in that home, we lived there
for 35 years, and we planned to live out our retirement there.'' Mrs. Gamble said that after being
evicted in February 2005, she and her husband, Carl, moved in with their daughter across the
Ohio River in Independence, Ky. ''We were nervous because we knew that the same developer
who built the mall across from us with help from the city and eminent domain was the one who
wanted our land,'' said Mrs. Gamble, whose house is one of the three still standing on the
contested site. ''But in the end, the city and developer took it away and the courts gave it back,
which makes you feel like there is real justice.''
In a 5-to-4 decision last year in a Connecticut case, Kelo v. City of New London, the
United States Supreme Court ruled that economic development is an appropriate use of the
government's power of eminent domain. That decision gave New London the authority to
condemn houses in an aging neighborhood to make way for private development. The legal
debate over eminent domain has not been whether governments could condemn private property
to build a public amenity like a park or a highway. That power was established by the Fifth
Amendment, provided that property owners are given ''just compensation.'' The conflict has been
over government attempts to take private homes or businesses for redevelopment projects that at
least partly benefit private entities. Two months after the ruling in June 2005, Justice John Paul
Stevens, who wrote the majority opinion, said he was bound by the law and legal precedent. But
in responding to criticism, he called the outcome ''unwise,'' and said that had he been a legislator
he would have opposed it.
Ms. Berliner of the Institute for Justice said the Ohio decision was a reaction to the
growing use of eminent domain by developers and local officials. Since the Kelo decision, more
19
than 5,700 properties nationwide have been threatened with seizure or have been seized through
eminent domain, a threefold increase from the numbers before that decision, she said.
The Ohio decision was a blow to Norwood officials, who hoped to gain $2 million a year
in tax revenue through the seven-acre project. ''The city is running one hell of a deficit,'' said
Mayor Thomas Williams, who predicted that the city would run out of money for its operating
budget in October. ''We're just trying to generate enough income to keep our doors open.''
The developer, Jeffrey R. Anderson Real Estate, could not be reached for comment on whether
the project would go forward.
The 58-page Ohio decision said that while economic factors may be considered in
determining whether governments can take private property, the economic benefit to the
government and community cannot be the only justification used for seizure. ''For the individual
property owner, the appropriation is not simply the seizure of a house,'' Justice Maureen
O'Connor wrote. ''It is the taking of a home, the place where ancestors toiled, where families were
raised, where memories were made.'' The decision said that justifying the seizure by claiming
that the area is deteriorating was unconstitutional because the term is too vague.
14.
For the property owners involved in the litigation, the final outcome of the Kelo case was
ironic, though perhaps not entirely unhappy. The post-mortem is described in the following
articles:
Avi Salzman, Homeowners Settle, But Their Fighting Spirit Lives On
N.Y. Times, July 9, 2006
Over the last few years, as its residents fought a battle against the city to keep their
homes, the Fort Trumbull neighborhood of New London looked more and more like a war-torn
village, with acres of vacant lots interrupted intermittently by debris and a few scattered houses.
Fort Trumbull was at the center of a national debate over eminent domain last year after the
United States Supreme Court ruled that the city could take residents' homes and transfer them to a
private developer to put up new housing, offices and a hotel. Of the seven property owners who
sued the city, the final two agreed on June 30 to settle, ending the battle.
If Fort Trumbull were a war-torn village, what propped it up was the guerilla activism
and gallows humor of its resistance movement. During the conflict, messengers on bicycles
handed out stickers deriding the city, and homeowners painted huge billboards on the sides of
homes with slogans like ''Say No to Eminent Domain Assault.''
Bill Von Winkle, who lived in one of the 12 apartments he owned in the neighborhood,
said he settled, on June 5, because he was offered more money. He wouldn't say how much, but
to illustrate his point, he put on a pair of sunglasses with holographic dollar signs and said, ''They
finally saw it my way.'' Two of his five remaining tenants, some of whom moved in even though
they knew eviction was looming, were getting ready to leave. They were due out Sunday, Mr.
Von Winkle said.
Efrain Caraballo, who works at the Mohegan Sun casino and moved to his one-bedroom
apartment at 33 Smith Street in 2004 shortly after graduating from high school, said he would
20
miss the neighborhood. ''It's kind of sad to leave here,'' he said. ''This is the first apartment I ever
had.'' Lauren Canario, who also lived at 33 Smith Street, said she had moved to Fort Trumbull
from Las Vegas after hearing about the Supreme Court ruling. Ms. Canario, an electronics
technician, said she wanted to move to New London to support the property owners financially—
by paying rent—and by fighting on their behalf. Last year, she was arrested for creating a public
disturbance at a City Council meeting. In a grassy area near Mr. Von Winkle's house, Ms.
Canario set up a series of cement blocks with the property owners' handprints pressed into them.
Susette Kelo, the lead plaintiff in the Supreme Court case, kept her house cozy
throughout the ordeal, placing metal rocking chairs on the porch and storing moccasins in a
basket at the foot of the stairs. Ms. Kelo, a nurse, was one of the last holdouts and negotiated a
settlement in which the state will pay to move her house. She can keep living on her property for
about another year.
Pasquale Cristofaro, who owned a house at 53 Goshen Street, also agreed to settle with
the city on June 30 and will get a chance to buy property in the new development. His son,
Michael, said the national movement to restrict eminent domain showed that the property owners
had prevailed. Legislatures throughout the country have voted to limit condemnation. ''We lost
the battle,'' he said, ''but we're winning the war.''
Patrick McGeehan, Pfizer to Leave City That Won Land-Use Case
N.Y. Times, Nov. 13, 2009
From the edge of the Thames River in New London, Conn., Michael Cristofaro surveyed the
empty acres where his parents’ neighborhood had stood, before it became the crux of an epic battle over
eminent domain. “Look what they did,” Mr. Cristofaro said on Thursday. “They stole our home for
economic development. It was all for Pfizer, and now they get up and walk away.”
That sentiment has been echoing around New London since Monday, when Pfizer, the giant drug
company, announced it would leave the city just eight years after its arrival led to a debate about urban
redevelopment that rumbled through the United States Supreme Court, and reset the boundaries for
governments to seize private land for commercial use. Pfizer said it would pull 1,400 jobs out of New
London within two years and move most of them a few miles away to a campus it owns in Groton, Conn.,
as a cost-cutting measure. It would leave behind the city’s biggest office complex and an adjacent swath
of barren land that was cleared of dozens of homes to make room for a hotel, stores and condominiums
that were never built.
The announcement stirred up resentment and bitterness among some local residents. They see
Pfizer as a corporate carpetbagger that took public money, in the form of big tax breaks, and now wants to
run. “I’m not surprised that they’re gone,” said Susette Kelo, who moved to Groton from New London
after the city took her home near Pfizer’s property. “They didn’t get what they wanted: their development,
their big plan.”
Ms. Kelo lived in a small pink house in the Fort Trumbull section that was square in the sights of
city and state officials who wanted to revitalize the area. The city had created the New London
Development Corporation to buy up the nine-acre neighborhood and find a developer to replace it with an
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“urban village” that would draw shoppers and tourists to the area. Economic development officials in
Connecticut used that plan—and a package of financial incentives—to lure Pfizer to build a headquarters
for its research division on 26 acres nearby. With an agreement that it would pay just one-fifth of its
property taxes for the first 10 years, Pfizer spent $294 million on a 750,000-square-foot complex that
opened in 2001.
By then, Ms. Kelo, the Cristofaros and several neighbors had sued the city to stop it from using
its power of eminent domain to take their property. The lawsuit, Kelo v. New London, wound up at the
Supreme Court in 2005 as one of the most scrutinized property-rights cases in years. In a 5-to-4 decision,
the high court ruled that it was permissible to take private property and turn it over to developers as part
of a plan to bolster the local economy. Conservative justices, including Clarence Thomas, dissented.
Justice Thomas called New London’s plan “a costly urban-renewal project whose stated purpose is a
vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the
Pfizer Corporation.”
The decision was widely criticized, and spurred lawmakers across the country to adopt statutes to
prevent similar uses of eminent domain. Scott G. Bullock, senior attorney at the Institute for Justice, a
libertarian group in Arlington, Va., said that 43 states had moved to protect private-property rights since
the Kelo decision. New York and New Jersey are among the seven that have not, he said. Mr. Bullock,
who represented the landowners in New London, said Pfizer’s announcement “really shows the folly of
these plans that use massive corporate welfare and abuse eminent domain for private development.”
“They oftentimes fail to live up to expectations,” he added.
For its part, Pfizer said it had no stake in the outcome of the Kelo case nor any interest in the
development of the land that was acquired by eminent domain, according to a statement provided by a
spokeswoman, Liz Power. After Pfizer completed its $67 billion acquisition of Wyeth, another drug
giant, in October, Ms. Power said, “We had a lot of real estate that we had to make strategic decisions
about.” She said Pfizer would try to sell or lease its buildings in New London and would “continue to pay
our taxes to the city as scheduled.”
The complex is currently assessed at $220 million, said Robert M. Pero, a city councilman who is
scheduled to become mayor next month. The company pays tax on 20 percent of that value and the state
pays an additional 40 percent, Mr. Pero said. That arrangement is scheduled to end in 2011, around the
time Pfizer, which is currently the city’s biggest taxpayer, expects to complete its withdrawal. “Basically,
our economy lost a thousand jobs, but we still have a building,” Mr. Pero said. Then again, he added, “I
don’t know who’s going to be looking for a building like that in this economy.”
Some residents said they expected Pfizer to seek a revaluation of its buildings if they wind up
vacant in two years; Ms. Power declined to comment. Mr. Pero said that he was offended that Pfizer did
not notify city officials about the decision before Monday or give them a chance to argue against it or
even fully understand it. But he said he did not regret the decisions he and other elected officials had
made to bring Pfizer to New London for what they had hoped would be a long and fruitful stay. “I’m sure
that there are people that are waiting out there to say, ‘I told you so,’ ” Mr. Pero said. “I don’t know that
even today you can say, ‘I told you so.’ ”
But Mr. Cristofaro and Ms. Kelo both said just that.
Ms. Kelo, a nurse who works in New London and Norwich, Conn., said she was still bitter about
the loss of her house, which she sold for $1 to Avner Gregory, a preservationist. Mr. Gregory dismantled
the house and moved it across town. It now stands as a bright-pink symbol of the divisive dispute that
drew so much attention to New London. “In all honesty, I’m not happy about what happened to me,” Ms.
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Kelo said. But, she added, “With 43 states changing their laws, in that sense I feel we did some good for
people across the country.”
15.
In the years since Kelo was decided, questions about the proper exercise of the power of
eminent domain remain much in the news. The following articles provide a sampling of the
current public use controversies:
Charles Bagli, Court Upholds Columbia Campus Expansion Plan
N.Y. Times, June. 24, 2010
Columbia University won a major court victory for its $6.3 billion plan to build a satellite
campus in Harlem on Thursday, when New York’s highest court ruled that the state could seize
private property for the project. In a unanimous decision, the Court of Appeals overturned a
lower court ruling that barred the state from using its power of eminent domain to take private
property in the 17-acre expansion zone west of Broadway without the property owner’s consent.
The ruling held that the courts must give deference to the state’s determination that the area was
“blighted” and that condemnation on behalf of a university served a public purpose, two
requirements under the law.
Lee Bollinger, the president of Columbia University, said he was grateful for the state’s
hard work in the case. “This is an extremely important moment in the history of Columbia,” he
said. “It’s only fair to say that the opportunity to build a new campus comes along very rarely.”
The university hopes to build a series of buildings for science, business and the arts over the
course of several decades on the site near the Hudson River, where the streets are lined with
warehouses, factories and auto repair shops. Columbia has already acquired the bulk of the land it
needs, but the owners of four warehouses and two gas stations refused to sell and sued to stop the
taking of their property. There are also seven tenements in the area, which are not subject to
condemnation, but Columbia hopes to move the tenants to comparable apartments elsewhere.
Normal Siegal, who represented the losing property owners, said he was still reviewing
the decision. “We’re extremely disappointed,” he said. Mr. Siegel had hoped that the lower court
decision would serve as a roadmap for others hoping to oppose the state’s use of eminent-domain
powers. Nicholas Sprayregen, the owner of the four warehouses who had refused to sell to
Columbia, could not be reached for comment.
The ruling cited a decision in a similar eminent-domain case last year involving the
Atlantic Yards development in Brooklyn, where the state was condemning property on behalf of a
developer who planned to build a basketball arena for the Nets and up to 6,000 apartments. “We
ruled for Atlantic yards, and if we could rule in favor of a basketball arena, surely we could rule
for a nonprofit university,” the court said Thursday in its decision, which was written by Judge
Carmen Beauchamp Ciparick.
In a statement, the Empire State Development Corporation, the agency that would take
the land on behalf of Columbia, said the ruling “confirms that the project complies with New
York State law in all respects and that the acquisition of the holdout properties is essential to
realizing the vision for the Manhattanville campus as it was approved by the state.” “The
expansion of one of New York’s oldest educational institutions will enhance the vitality of both
the university and its neighboring west Harlem community, while meeting the long-term needs of
its residents,” the agency said.
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In a concurring opinion, Judge Robert S. Smith agreed that the state had the power to
decide what constituted blight, but he wrote that the court should not have brought up the issue of
what constitutes a “civic purpose,” because it opens the door to any purported “school,” even a
tennis school, to have land assembled for it through eminent domain.
[The New York Court of Appeals’s decision is: Kaur v. New York State Urban
Development Corp., 15 N.Y.3d 235, 933 N.E.2d 721 (2010).]
Saul Elbein, Judge Upholds Eminent Domain for Pipeline in Texas
N.Y. Times, Aug. 23, 2012
The Canadian energy company TransCanada can take over land owned by a Texas farmer
to build its Keystone XL pipeline, a county judge ruled on Wednesday night. In a 15-word ruling
sent from his iPhone, Judge Bill Harris of Lamar County Court at Law upheld TransCanada’s
condemnation of a 50-foot strip of land across Julia Trigg Crawford’s pasture here. The pipeline
is being built to carry oil to Texas refineries from Canada. Ms. Crawford plans to appeal the
ruling. “We may have lost this one battle here in Paris, Texas, but we are far from done,” she said
in a statement. “I will continue to proudly stand up for my own personal rights, the property
rights of my family, and those of other Texans fighting to protect their land.”
The case has shed light on a loophole in Texas’s oil and gas regulation — one that critics
say has given pipeline companies carte blanche to seize private land. Activists across the political
spectrum have rallied behind Ms. Crawford’s cause, from conservative rural landowners and Tea
Party organizations to environmental groups. At issue was whether TransCanada is a common
carrier — a company with pipeline open to any oil company willing to pay published rates. In
Texas, a common carrier has the power to condemn land with little oversight. The problem, Ms.
Crawford’s supporters say, is that to earn the designation, an oil company need only claim the
status itself on a one-page form submitted to the Texas Railroad Commission, which regulates
pipelines.
That process has already been challenged successfully in the State Supreme Court. “No
notice is given to affected parties,” Justice Don R. Willett wrote in that case, Texas Rice Land
Partners v. Denbury Green. “No hearing is held, no evidence is presented, no investigation is
conducted.” In the Denbury case, the court unanimously refused the pipeline company’s
condemnation claim. “Private property is constitutionally protected,” Justice Willett wrote, “and a
private enterprise cannot acquire condemnation power merely by checking boxes on a one-page
form.” The court recommended a set of uniform standards for common carriers, and a body to
enforce it.
But because no such body exists, Ms. Crawford’s case ended up in Judge Harris’s small
courtroom. The arguments were technical. TransCanada argued that it derived its power of
eminent domain from the Railroad Commission. Wendi Hammond, Ms. Crawford’s lawyer,
asserted that based on a 2008 letter, the Railroad Commission said TransCanada’s operations
“appear to be interstate and thereby under federal control.” “When our own state agency says
they don’t have jurisdiction,” Ms. Hammond said, “and a statute requires that a pipeline be
subject to the agency’s jurisdiction, the court should be ruling in favor of the citizen and denying
the corporation’s request.”
TransCanada welcomed the judge’s decision. “This ruling reaffirms that TransCanada
has — and continues — to follow all state and federal laws and regulations as we move forward
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with the construction of the Gulf Coast Project,” said Grady Semmens, a TransCanada
spokesman. In court, Ms. Hammond’s argument seemed to exasperate a TransCanada lawyer,
James Freeman. He argued that under Ms. Hammond’s interpretation, “you wouldn’t be able to
move interstate oil in Texas pipelines at all.”
Ms. Hammond disagreed. “We’re saying TransCanada is welcome to carry whatever they
want,” she said. “They just can’t seize Ms. Crawford’s land to do it.” Ms. Hammond was new to
the case, having represented Ms. Crawford for just 11 days. Previously, Ms. Crawford’s counsel
had argued that TransCanada could not be a common carrier because it carried diluted bitumen,
not crude oil, because the Keystone pipeline had not yet been granted a federal permit, and
because the pipeline company had not negotiated in good faith, among other things. “That’s how
this case has been all along,” Mr. Freeman said. Opposing counsel “makes these claims that have
no basis in law or fact, and then by the time I get around to answering it, the argument has
changed.”
Packing the courtroom were around 50 supporters of Ms. Crawford. To some, the case
showed why regulatory reform was needed. Debra Medina, a Republican former candidate for
governor, said she drove seven hours to be at the hearing. “This is a clear example of where we
have a problem in our law,” Ms. Medina said, “where companies who have not proven that they
are a common carrier are allowed to take property using eminent-domain — before they ever
demonstrate that they meet the criteria for that use.”
Christopher Rhoads, Battle of the Beach
Wall St. Journal, May 24, 2013
With debris cleared, beaches replenished and boardwalks repaired, many New Jersey
shore towns will be putting up open-for-business signs this holiday weekend, just seven months
after the devastation of Superstorm Sandy. The Jersey shore is back for another summer.
But Thomas Anzalone of Long Branch, N.J. is not reassured. For those parts of the shore
still fighting to recover from the disaster, he thinks that the real battle for survival has yet to
begin. On a recent afternoon, the 57-year-old accountant was fixing the storm-damaged roof of
the waterfront bungalow that he shares with his father. He fears that developers will take over
what Sandy left behind and sees an ominous precedent in a 1987 fire that destroyed a Long
Branch pier. The town invoked eminent domain—the power to appropriate private property for
the public good—to replace a fire-damaged neighborhood with a new luxury complex of shops
and condos. "What Sandy has done to many towns, a fire did to Long Branch," says Mr.
Anzalone. "Eminent domain came for us, and it will come for them."
Despite upbeat public messages, local officials along the 126-mile-long Jersey shore
privately say that the aftermath of one of the worst storms ever to hit the U.S. may require a host
of far-reaching solutions to preserve the long-term viability of their towns. These include
sensitive measures like merging services with other towns and even merging towns themselves.
Eventually, shore communities may also use the power of eminent domain, a politically explosive
issue across the nation and nowhere more so than in Mr. Anzalone's town.
After the 1987 fire in Long Branch, local officials declared that the surrounding
neighborhood had become blighted, a designation allowing them to seize dozens of waterfront
homes—including those of longtime and low-income residents who did not wish to sell—for an
upscale project that they hoped would signal the city's revival. The centerpiece of the
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development, called Pier Village, opened in 2005 amid protests and lawsuits. Today, the $400
million complex, which sits on 16 acres of oceanfront property, includes a boutique hotel and a
members-only beach club called Le Club. "What happened in Long Branch is what I would call
socio-economic cleansing," says Peter Dickson, a Princeton, N.J., lawyer who successfully
argued a 2007 case before the New Jersey Supreme Court that slowed the use of eminent domain
in the state. Should some of the towns not find a path to recovery, he adds, "this could come back
with a vengeance."
In a March meeting on recovery efforts hosted by New Jersey state officials, a resident of
Seaside Heights, about 30 miles south of Long Branch, said she was worried that she could lose
her damaged home to "major developers who will take over our neighborhoods." At a February
meeting in Sea Bright, just up the shore from Long Branch, the town's mayor acknowledged,
"People fear a heartless government coming in and taking away their land. They fear a plastic
look and that the downtown will wind up looking like Pier Village."
The power to take private property for the common good, typically for things like roads,
schools and bridges, dates back to biblical times. The Fifth Amendment of the U.S. Constitution
bestows the right on the federal government but also requires just compensation. State
constitutions typically extend the power to local governments. Since the urban decline of the
1960s, courts have expanded the definition of "public use" to mean "public benefit," allowing
developers who promised higher tax revenue and jobs to seize property considered blighted. The
practice took off during the real-estate boom of the 2000s, as developers flush with cash, working
with investment-hungry town governments, turned so-called underutilized properties into big-box
retail stores and in many cases upscale residential-commercial developments. The activity
prompted growing complaints of abuse.
Concerns came to a head following the 2005 U.S. Supreme Court case of Kelo v. City of
New London, in which the justices allowed the taking of property from low-income residents for
a condo-retail project in Connecticut. The case triggered a backlash. Nine state supreme courts
and 44 state legislatures subsequently strengthened criteria for allowing eminent domain,
according to the Institute for Justice, a public-interest law firm focused on property rights. "It is
hard to think of a more fundamental American principle than the sanctity of the home and private
property," says Robert McNamara, an institute attorney. "Frequently the word blight has been a
cover for government officials giving property to someone they like better—and that's why it's a
dangerous practice."
Despite the restrictions imposed by state courts and legislatures, eminent domain
continues to be invoked around the country. In National City, Calif., south of San Diego, a
developer is seeking to take a large area designated by the city as blighted, including a youth
athletic center, to build condominiums. Last fall, Denver officials authorized the use of eminent
domain for redevelopment in the city's historic Five Points district. The developer behind the
Barclays Center, the new home of the Brooklyn Nets basketball team, was able to seize properties
under eminent domain to get the structure built.
Even opponents agree that, when used properly, eminent domain can be an effective tool.
"Eminent domain is like a knife," says Vince Lepore, a Long Branch activist who fought against
Pier Village. "It has its uses, but when used carelessly, it can hurt."
Superstorm Sandy has already brought the issue to prominence again in New Jersey as
the state tries to strengthen the shore against future disasters. Earlier this month the state supreme
court heard a case involving a couple who, before the storm, won a $375,000 judgment from a
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lower court as compensation for their town's building a dune on their property. The town, Harvey
Cedars, had paid the couple just $300 for an easement, seized through eminent domain. The
action, they argued, had hurt the value of their property.
More towns since Sandy have wanted to build dunes, but they have been slowed by the
case, fearful of lawsuits and of having to spend millions of dollars to waterfront homeowners.
At a March town hall gathering on the matter, Gov. Chris Christie won applause when he blasted
such "selfish" people for standing in the way of what he called the "greater good" of improved
dune protection.
Development lawyers expect to hear similar arguments from towns recovering from
Sandy. With 565 municipalities, New Jersey has one of the highest numbers of towns per capita
in the nation. Many of them have their own boards, police departments and other services, which
contributes to some of the country's highest property taxes. Some towns now are reckoning with a
reduction of 10% or more in the value of their taxable property from Sandy, and at least one,
Mantaloking, with more than a 30% decline, according to the latest tax assessments. "These
clobbered towns may get some interim relief from Congress," says William Ward, a Florham
Park, N.J.-based lawyer who specializes in eminent domain cases. "But the long-term issue is
going to stay: They have lost a significant portion of their tax rate base but still have fixed costs
for police, fire and schools." That means finding ways to attract developers to rebuild.
Tom Neff, director of local government services in the Department of Community
Affairs, a New Jersey state agency, says he does not foresee instances of eminent domain in the
near term. However, "five years from now, if an entire swath of a community becomes blighted
and not rebuilt and there are people not paying their taxes—well, time will tell."
About 20 miles up the coast from Long Branch, largely blue-collar Union Beach appears
to be a leading candidate. Abandoned homes dot one neighborhood where Sandy swept more than
a dozen houses out to sea, leaving behind driveways leading nowhere. The town, which has
mostly primary residences (unlike wealthier summer communities to the south), has torn down
167 condemned houses since the storm and has at least another 57 to go, according to the town
administrator. In the long run, officials say, neighborhoods where occupied houses are
interspersed with vacant lots will not be viable, and entire areas will need to be rebuilt. Paul
Smith, Union Beach's mayor, says that the priority for the moment is to get people to come back.
The problem is getting the money they need to rebuild. "A lot of people here live
paycheck to paycheck," says Mr. Smith, who works in shipping for a fragrance company. "That is
the scary part—people won't be able to rebuild." Patricia Wood, a 60-year-old homemaker, still
hasn't moved back into her residence of 34 years in Union Beach that she shares with her
husband, a driver for a phone company. The flooded home was recently elevated by 13 feet to
comply with new regulations, a $35,000 cost covered by a federal loan. She has no idea where
she will get the additional $25,000 needed for remaining repairs. Some neighbors have just
disappeared, abandoning their damaged homes, she says.
With exceptions like a hardware store and a clothing store, most of the businesses in Sea
Bright remain boarded up. One recent evening, almost the only source of light in the town's
commercial district was Harry's Lobster House, which has been serving lobster bisque since
1933. A single diner ate in the main room. "It feels like the end of the world," said Lou Jacoubs,
chef and owner of Harry's, flipping a steak on his industrial stove, which somehow survived 5
feet of flooding in the restaurant's kitchen. Mr. Jacoubs confirmed rumors that a real-estate
investment company, Besen & Associates, had made him an offer. The firm has since withdrawn
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the offer, but Mr. Jacoubs says that he is still looking to sell. Besen & Associates says that it
made offers on many businesses in areas affected by the storm.
Today, a town in New Jersey can designate a neighborhood as an "area in need of
redevelopment," the current vernacular for blighted, giving officials certain revitalization tools.
These include measures like tax exemptions and abatements, a waiver on competitive bidding for
developers and—in areas where residents don't want to sell—eminent domain.
A bill working its way through the New Jersey legislature would provide two tracks for
towns considering redevelopment measures: one allowing the use of eminent domain but
requiring stricter scrutiny and a more demanding approval process; and the other forbidding
eminent domain but requiring less oversight. Local officials seeking the revitalization tools that
accompany a blight designation, but without frightening residents about the possibility of using
eminent domain, could opt for the second track.
For now, the weakened real-estate market has put the brakes on eminent-domain takings
by developers. "The power to do this is still there, but the market isn't," says Mr. Ward, the
lawyer. When the market comes back, so will the blight takings, he adds. Should that unfold,
such actions could recall what happened in Long Branch with Pier Village.
Long Branch was once a thriving summer resort of sprawling farms and open vistas,
popular in the late 19th and early 20th centuries with U.S. presidents and film stars. In the 1960s,
urban decay set in from failed public housing projects and demographic shifts. The devastating
1987 fire destroyed a long-standing pier, a local landmark that held an amusement park, and
accelerated the decline. Drugs and gangs proliferated.
City officials came up with a master plan in the mid-1990s, designating much of the
waterfront an "area in need of redevelopment." In 2000 the city awarded the contract to a
developer. Residents, many of them elderly and living on retirement savings, soon realized their
homes were to be destroyed. Some of the locals caught in the cross hairs lived in a middle-class
enclave of well-kept bungalows and cottages that had been in the same families for generations.
Some sellers received payments considered well below market value, but they lacked resources to
sue. Many moved away. Others banded together and tried to fight in the courts.
Bruce MacCloud says that armed police officers forcibly removed him from his threestory home of 25 years in Long Branch in 2002 just days before Thanksgiving. A builder, Mr.
MacCloud says that he had spent years restoring the shingled, 100-year-old Victorian home, a
few hundred feet from the ocean. "What happened in Long Branch to achieve Pier Village is an
atrocity," says the 53-year-old Mr. MacCloud, who now lives in Tom's River in a ranch-style
home a couple of miles from the water. The strain contributed to his divorce from his wife, who
received custody of their two children, he says. The town offered him just $189,000 for the house
in compensation, he says, which was increased to $220,000 after a lengthy court battle. "I paid off
my home, restored it, started a family there, and then I lost it all," says Mr. MacCloud. "I know
this was not for the good of the people."
The condo development in Long Branch moved ahead, with hundreds of units, many
priced above $500,000. Shops and restaurants followed. Plopped on a shoreline noted for its
diversity—from the honky-tonk boardwalk scene to stately mansions—Pier Village and the
connected development stand out for their uniformity: street after street of identical four-story
condos in tan. The development hasn't made the waterfront a year-round community, as hoped,
but the area is busy in the summer months. Work recently began on the last phase of the project, a
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68-room hotel. A spokesman for the developer says that all 283 for-sale residences in Beachfront
North, a part of the redevelopment area, have been sold.
The Pier Village complex weathered Sandy well because of its up-to-date building
materials, according to David Barry, the president of Hoboken-based Ironstate Development Co.,
which built the complex. The Long Branch mayor who spearheaded the strategy has since been
re-elected many times, Mr. Barry points out, and the sale of beach passes in Long Branch has
increased. Eminent domain "serves a very useful purpose," says Mr. Barry. "These badly
damaged towns will need to figure out a way forward. If they don't want a patchwork recovery,
they may find such tools necessary."
Shaila Dewan, A City Invokes Seizure Laws to Save Homes
N.Y. Times, July 29, 2013
The power of eminent domain has traditionally worked against homeowners, who can be
forced to sell their property to make way for a new highway or shopping mall. But now the
working-class city of Richmond, Calif., hopes to use the same legal tool to help people stay right
where they are. Scarcely touched by the nation’s housing recovery and tired of waiting for
federal help, Richmond is about to become the first city in the nation to try eminent domain as a
way to stop foreclosures.
The results will be closely watched by both Wall Street banks, which have vigorously
opposed the use of eminent domain to buy mortgages and reduce homeowner debt, and a host of
cities across the country that are considering emulating Richmond. The banks have warned that
such a move will bring down a hail of lawsuits and all but halt mortgage lending in any city with
the temerity to try it.
But local officials, frustrated at the lack of large-scale relief from the Obama
administration, relatively free of the influence that Wall Street wields in Washington, and faced
with fraying neighborhoods and a depleted middle class, are beginning to shrug off those threats.
“We’re not willing to back down on this,” said Gayle McLaughlin, the former schoolteacher who
is serving her second term as Richmond’s mayor. “They can put forward as much pressure as
they would like but I’m very committed to this program and I’m very committed to the wellbeing of our neighborhoods.”
Despite rising home prices in many parts of the country, including California, roughly
half of all homeowners with mortgages in Richmond are underwater, meaning they owe more —
in some cases three or four times as much more — than their home is currently worth. On
Monday, the city sent a round of letters to the owners and servicers of the loans, offering to buy
626 underwater loans. In some cases, the homeowner is already behind on the payments. Others
are considered to be at risk of default, mainly because home values have fallen so much that the
homeowner has little incentive to keep paying.
Many cities, particularly those where minority residents were steered into predatory
loans, face a situation similar to that in Richmond, which is largely black and Hispanic. About
two dozen other local and state governments, including Newark, Seattle and a handful of cities in
California, are looking at the eminent domain strategy, according to a count by Robert Hockett, a
Cornell University law professor and one of the plan’s chief proponents. Irvington, N.J., passed a
resolution supporting its use in July. North Las Vegas will consider an eminent domain proposal
in August, and El Monte, Calif., is poised to act after hearing out the opposition this week.
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But the cities face an uphill battle. Some have already backed off, and those that proceed
will be challenged in court. After San Bernardino County dropped the idea earlier this year, a
network of housing groups and unions began working to win community support and develop
nonprofit alternatives to Mortgage Resolution Partners, the firm that is managing the Richmond
program. “Our local electeds can’t do this alone, they need the backup support from their
constituents,” said Amy Schur, a campaign director for the national Home Defenders League.
“That’s what’s been the game changer in this effort.”
Richmond is offering to buy both current and delinquent loans. To defend against the
charge that irresponsible homeowners who used their homes as A.T.M.’s are being helped at the
expense of investors, the first pool of 626 loans does not include any homes with large second
mortgages, said Steven M. Gluckstern, the chairman of Mortgage Resolution Partners. The city is
offering to buy the loans at what it considers the fair market value. In a hypothetical example, a
home mortgaged for $400,000 is now worth $200,000. The city plans to buy the loan for
$160,000, or about 80 percent of the value of the home, a discount that factors in the risk of
default.
Then, the city would write down the debt to $190,000 and allow the homeowner to
refinance at the new amount, probably through a government program. The $30,000 difference
goes to the city, the investors who put up the money to buy the loan, closing costs and M.R.P.
The homeowner would go from owing twice what the home is worth to having $10,000 in equity.
All of the loans in question are tied up in what are called private label securities, meaning they
were bundled and sold to private investors. Such loans are generally the most unfavorable to
borrowers and the most likely to default, Mr. Gluckstern said. But they are also the most difficult
to modify because they are controlled by loan servicers and trustees for the investors, not the
investors themselves. If Richmond’s purchase offer is declined, the city intends to use eminent
domain to condemn and buy the loans.
The banks and the real estate industry have argued that such a move would be
unprecedented and unconstitutional. But Mr. Hockett says that all types of property, not just land
and buildings, are subject to eminent domain if the government can show it is needed to promote
the public good, in this case fighting blight and keeping communities intact. Railroad stocks,
private bus companies, sports teams and even some mortgages have been subject to eminent
domain.
Opponents, including the Securities Industry and Financial Markets Association, the
American Bankers Association, the National Association of Realtors and some big investors have
mounted a concerted opposition campaign on multiple levels, including flying lobbyists to
California city halls and pressuring Fannie Mae, Freddie Mac and the Federal Housing
Administration to use their control of the mortgage industry to ban the practice. Tim Cameron,
the head of Sifma’s Asset Management Group, said any city using eminent domain would make
borrowing more expensive for everyone in the community and divert profits from the investors
who now own the loan to M.R.P. and the investors financing the new program. “Eminent domain
is used for roads and schools and bridges that benefit an entire community, not something that
cherry-picks who the winners are and who the losers are,” he said.
Representative John Campbell, Republican of California, has introduced a bill that would
prohibit Fannie, Freddie and the F.H.A. from making, guaranteeing or insuring a mortgage in any
community that has used eminent domain in this way. Eminent domain supporters say such limits
would constitute a throwback to the illegal practice called redlining, when banks refused to lend
30
in minority communities. Opponents have also employed hardball tactics. In North Las Vegas, a
mass mailer paid for by real estate brokers warned that M.R.P. had “hatched a plan to make
millions of dollars by foreclosing on homeowners who are current on their payments.” In a letter
to the Justice Department, Lt. Gov. Gavin Newsom of California complained that the opposition
was violating antitrust laws and that one unnamed hedge fund had threatened an investor in the
project.
But not all mortgage investors oppose the plan. Some have long argued that writing down
homeowner debt makes sense in many cases. “This is not the first choice, but it’s rapidly
becoming the only choice on how to fix this mess,” said William Frey, an investor advocate.
Mr. Frey said that the big banks were terrified that if eminent domain strategies became
widespread, they would engulf not only primary mortgages but some $450 billion in second liens
and home equity loans that are on the banks’ balance sheets. “It has nothing to do with morality
or anything like that, it has to do with second liens.”
Many of the communities considering eminent domain were targeted by lenders who
steered minority families eligible for conventional mortgages into loans with higher interest rates
and ballooning payments. Robert and Patricia Castillo bought a three-bedroom, one-bathroom
home in Richmond because their son, who is severely autistic, would anger landlords with his
destructive impulses. They paid $420,000 for a home that is now worth $125,000, Mr. Castillo, a
mechanic, said. They have watched as their daughter’s playmates on the block have, one by one,
lost their homes. But they are reluctant to walk away from the house in part for the sake of their
son. “We’re in a bad situation,” Mr. Castillo, 44, said. “Not only me and my family, but the
whole of Richmond.”
16.
If you are interested in additional reading on the concept of “public use, please consider
Professor Rubenfeld’s provocative interpretation of the “public use” clause. Jed Rubenfeld,
Usings, 102 Yale L.J. 1077 (1993). If you want even more on the Kelo litigation itself, there are
now two books on the topic: CARLA MAIN, BULLDOZED: “KELO,” EMINENT DOMAIN AND THE
AMERICAN LUST FOR LAND (ENCOUNTER 2007) and JEFF BENEDICT, LITTLE PINK HOUSE: A TRUE
STORY OF DEFIANCE AND COURAGE (GRAND CENTRAL 2009).
KELO v. CITY OF NEW LONDON
Supreme Court of the United States
545 U.S. 469 (2005)
JUSTICE STEVENS delivered the opinion of the Court.
In 2000, the city of New London approved a development plan that, in the words of the
Supreme Court of Connecticut, was "projected to create in excess of 1,000 jobs, to increase tax
and other revenues, and to revitalize an economically distressed city, including its downtown and
waterfront areas." 268 Conn. 1, 5, 843 A.2d 500, 507 (2004). In assembling the land needed for
this project, the city's development agent has purchased property from willing sellers and
proposes to use the power of eminent domain to acquire the remainder of the property from
unwilling owners in exchange for just compensation. The question presented is whether the
city's proposed disposition of this property qualifies as a "public use" within the meaning of the
Takings Clause of the Fifth Amendment to the Constitution.
I
31
The city of New London (hereinafter City) sits at the junction of the Thames River and
the Long Island Sound in southeastern Connecticut. Decades of economic decline led a state
agency in 1990 to designate the City a "distressed municipality." In 1996, the Federal
Government closed the Naval Undersea Warfare Center, which had been located in the Fort
Trumbull area of the City and had employed over 1,500 people. In 1998, the City's
unemployment rate was nearly double that of the State, and its population of just under 24,000
residents was at its lowest since 1920.
These conditions prompted state and local officials to target New London, and
particularly its Fort Trumbull area, for economic revitalization. To this end, respondent New
London Development Corporation (NLDC), a private nonprofit entity established some years
earlier to assist the City in planning economic development, was reactivated. In January 1998,
the State authorized a $5.35 million bond issue to support the NLDC's planning activities and a
$10 million bond issue toward the creation of a Fort Trumbull State Park. In February, the
pharmaceutical company Pfizer Inc. announced that it would build a $300 million research
facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would
draw new business to the area, thereby serving as a catalyst to the area's rejuvenation. After
receiving initial approval from the city council, the NLDC continued its planning activities and
held a series of neighborhood meetings to educate the public about the process. In May, the city
council authorized the NLDC to formally submit its plans to the relevant state agencies for
review. Upon obtaining state-level approval, the NLDC finalized an integrated development
plan focused on 90 acres of the Fort Trumbull area.
The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The
area comprises approximately 115 privately owned properties, as well as the 32 acres of land
formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres).
The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront
conference hotel at the center of a "small urban village" that will include restaurants and
shopping. This parcel will also have marinas for both recreational and commercial uses. A
pedestrian "riverwalk" will originate here and continue down the coast, connecting the waterfront
areas of the development. Parcel 2 will be the site of approximately 80 new residences
organized into an urban neighborhood and linked by public walkway to the remainder of the
development, including the state park. This parcel also includes space reserved for a new U. S.
Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will
contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4acre site that will be used either to support the adjacent state park, by providing parking or retail
services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina,
as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and
retail space, parking, and water-dependent commercial uses.
The NLDC intended the development plan to capitalize on the arrival of the Pfizer
facility and the new commerce it was expected to attract. In addition to creating jobs, generating
tax revenue, and helping to "build momentum for the revitalization of downtown New London,"
the plan was also designed to make the City more attractive and to create leisure and recreational
opportunities on the waterfront and in the park.
32
The city council approved the plan in January 2000, and designated the NLDC as its
development agent in charge of implementation. See Conn. Gen. Stat. § 8-188 (2005). The city
council also authorized the NLDC to purchase property or to acquire property by exercising
eminent domain in the City's name. § 8-193. The NLDC successfully negotiated the purchase of
most of the real estate in the 90-acre area, but its negotiations with petitioners failed. As a
consequence, in November 2000, the NLDC initiated the condemnation proceedings that gave
rise to this case.
II
Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made
extensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina
Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her
husband Charles (also a petitioner) has lived in the house since they married some 60 years ago.
In all, the nine petitioners own 15 properties in Fort Trumbull—4 in parcel 3 of the development
plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the
other five are held as investment properties. There is no allegation that any of these properties is
blighted or otherwise in poor condition; rather, they were condemned only because they happen
to be located in the development area.
In December 2000, petitioners brought this action in the New London Superior Court.
They claimed, among other things, that the taking of their properties would violate the "public
use" restriction in the Fifth Amendment. After a 7-day bench trial, the Superior Court granted a
permanent restraining order prohibiting the taking of the properties located in parcel 4A (park or
marina support). It, however, denied petitioners relief as to the properties located in parcel 3
(office space).1
After the Superior Court ruled, both sides took appeals to the Supreme Court of
Connecticut. That court held, over a dissent, that all of the City's proposed takings were valid. It
began by upholding the lower court's determination that the takings were authorized by chapter
132, the State's municipal development statute. See Conn. Gen. Stat. § 8-186 et seq. (2005).
That statute expresses a legislative determination that the taking of land, even developed land, as
part of an economic development project is a "public use" and in the "public interest." 268
Conn., at 18-28, 843 A. 2d, at 515-521. Next, relying on cases such as Hawaii Housing
Authority v. Midkiff, 467 U.S. 229, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984), and Berman v.
Parker, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98 (1954), the court held that such economic
development qualified as a valid public use under both the Federal and State Constitutions. 268
Conn., at 40, 843 A. 2d, at 527.
1
While this litigation was pending before the Superior Court, the NLDC announced that it
would lease some of the parcels to private developers in exchange for their agreement to develop
the land according to the terms of the development plan. Specifically, the NLDC was negotiating
a 99-year ground lease with Corcoran Jennison, a developer selected from a group of applicants.
The negotiations contemplated a nominal rent of $1 per year, but no agreement had yet been
signed. See 268 Conn. 1, 9, 61, 843 A.2d 500, 509-510, 540 (2004).
33
Finally, adhering to its precedents, the court went on to determine, first, whether the
takings of the particular properties at issue were "reasonably necessary" to achieving the City's
intended public use, id., at 82-84, 843 A. 2d, at 552-553, and, second, whether the takings were
for "reasonably foreseeable needs," id., at 93-94, 843 A. 2d, at 558-559. The court upheld the
trial court's factual findings as to parcel 3, but reversed the trial court as to parcel 4A, agreeing
with the City that the intended use of this land was sufficiently definite and had been given
"reasonable attention" during the planning process. Id., at 120-121, 843 A. 2d, at 574.
The three dissenting justices would have imposed a "heightened" standard of judicial
review for takings justified by economic development. Although they agreed that the plan was
intended to serve a valid public use, they would have found all the takings unconstitutional
because the City had failed to adduce "clear and convincing evidence" that the economic benefits
of the plan would in fact come to pass. Id., at 144, 146, 843 A. 2d, at 587, 588 (Zarella, J.,
joined by Sullivan, C. J., and Katz, J., concurring in part and dissenting in part).
We granted certiorari to determine whether a city's decision to take property for the
purpose of economic development satisfies the "public use" requirement of the Fifth
Amendment.
III
Two polar propositions are perfectly clear. On the one hand, it has long been accepted
that the sovereign may not take the property of A for the sole purpose of transferring it to another
private party B, even though A is paid just compensation. On the other hand, it is equally clear
that a State may transfer property from one private party to another if future "use by the public"
is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties
is a familiar example. Neither of these propositions, however, determines the disposition of this
case.
As for the first proposition, the City would no doubt be forbidden from taking petitioners'
land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467
U.S., at 245, 81 L. Ed. 2d 186, 104 S. Ct. 2321 ("A purely private taking could not withstand the
scrutiny of the public use requirement; it would serve no legitimate purpose of government and
would thus be void"); Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403, 41 L. Ed. 489, 17 S.
Ct. 130 (1896).2 Nor would the City be allowed to take property under the mere pretext of a
public purpose, when its actual purpose was to bestow a private benefit. The takings before us,
2
See also Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L. Ed. 648 (1798) ("An act of the
Legislature (for I cannot call it a law) contrary to the great first principles of the social compact,
cannot be considered a rightful exercise of legislative authority. . . . A few instances will suffice
to explain what I mean. . . [A] law that takes property from A. and gives it to B: It is against all
reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it
cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State
Governments, amount to a prohibition of such acts of legislation; and the general principles of
law and reason forbid them" (emphasis deleted)).
34
however, would be executed pursuant to a "carefully considered" development plan. 268 Conn.,
at 54, 843 A. 2d, at 536. The trial judge and all the members of the Supreme Court of
Connecticut agreed that there was no evidence of an illegitimate purpose in this case.3
Therefore, as was true of the statute challenged in Midkiff, 467 U.S., at 245, 81 L. Ed. 2d 186,
104 S. Ct. 2321, the City's development plan was not adopted "to benefit a particular class of
identifiable individuals."
On the other hand, this is not a case in which the City is planning to open the condemned
land—at least not in its entirety—to use by the general public. Nor will the private lessees of the
land in any sense be required to operate like common carriers, making their services available to
all comers. But although such a projected use would be sufficient to satisfy the public use
requirement, this "Court long ago rejected any literal requirement that condemned property be
put into use for the general public." Id., at 244, 81 L. Ed. 2d 186, 104 S. Ct. 2321. Indeed, while
many state courts in the mid-19th century endorsed "use by the public" as the proper definition
of public use, that narrow view steadily eroded over time. Not only was the "use by the public"
test difficult to administer (e.g., what proportion of the public need have access to the property?
at what price?),4 but it proved to be impractical given the diverse and always evolving needs of
society.5 Accordingly, when this Court began applying the Fifth Amendment to the States at the
3
See 268 Conn., at 159, 843 A. 2d, at 595 (Zarella, J., concurring in part and dissenting in
part) ("The record clearly demonstrates that the development plan was not intended to serve the
interests of Pfizer, Inc., or any other private entity, but rather, to revitalize the local economy by
creating temporary and permanent jobs, generating a significant increase in tax revenue,
encouraging spin-off economic activities and maximizing public access to the waterfront"). And
while the City intends to transfer certain of the parcels to a private developer in a long-term
lease--which developer, in turn, is expected to lease the office space and so forth to other private
tenants--the identities of those private parties were not known when the plan was adopted. It is,
of course, difficult to accuse the government of having taken A's property to benefit the private
interests of B when the identity of B was unknown.
4
See, e.g., Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394, 410, 1876 WL 4573,
*11 (1876) ("If public occupation and enjoyment of the object for which land is to be condemned
furnishes the only and true test for the right of eminent domain, then the legislature would
certainly have the constitutional authority to condemn the lands of any private citizen for the
purpose of building hotels and theaters. Why not? A hotel is used by the public as much as a
railroad. The public have the same right, upon payment of a fixed compensation, to seek rest and
refreshment at a public inn as they have to travel upon a railroad").
5
From upholding the Mill Acts (which authorized manufacturers dependent on powerproducing dams to flood upstream lands in exchange for just compensation), to approving
takings necessary for the economic development of the West through mining and irrigation,
many state courts either circumvented the "use by the public" test when necessary or abandoned
it completely. See Nichols, The Meaning of Public Use in the Law of Eminent Domain, 20
B.U.L. Rev. 615, 619-624 (1940) (tracing this development and collecting cases). For example,
in rejecting the "use by the public" test as overly restrictive, the Nevada Supreme Court stressed
that "[m]ining is the greatest of the industrial pursuits in this state. All other interests are
subservient to it. Our mountains are almost barren of timber, and our valleys could never be
made profitable for agricultural purposes except for the fact of a home market having been
35
close of the 19th century, it embraced the broader and more natural interpretation of public use
as "public purpose." See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158-164, 41
L. Ed. 369, 17 S. Ct. 56 (1896). Thus, in a case upholding a mining company's use of an aerial
bucket line to transport ore over property it did not own, Justice Holmes' opinion for the Court
stressed "the inadequacy of use by the general public as a universal test." Strickley v. Highland
Boy Gold Mining Co., 200 U.S. 527, 531, 50 L. Ed. 581, 26 S. Ct. 301 (1906).6 We have
repeatedly and consistently rejected that narrow test ever since.7
The disposition of this case therefore turns on the question whether the City's
development plan serves a "public purpose." Without exception, our cases have defined that
concept broadly, reflecting our longstanding policy of deference to legislative judgments in this
field.
In Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98 (1954), this Court upheld a
redevelopment plan targeting a blighted area of Washington, D. C., in which most of the housing
for the area's 5,000 inhabitants was beyond repair. Under the plan, the area would be condemned
and part of it utilized for the construction of streets, schools, and other public facilities. The
remainder of the land would be leased or sold to private parties for the purpose of
redevelopment, including the construction of low-cost housing.
The owner of a department store located in the area challenged the condemnation,
pointing out that his store was not itself blighted and arguing that the creation of a "better
balanced, more attractive community" was not a valid public use. Id., at 31, 99 L. Ed. 27, 75 S.
Ct. 98. Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in
isolation, deferring instead to the legislative and agency judgment that the area "must be planned
as a whole" for the plan to be successful. Id., at 34, 99 L. Ed. 27, 75 S. Ct. 98. The Court
explained that "community redevelopment programs need not, by force of the Constitution, be on
a piecemeal basis—lot by lot, building by building." Id., at 35, 99 L. Ed. 27, 75 S. Ct. 98. The
public use underlying the taking was unequivocally affirmed:
created by the mining developments in different sections of the state. The mining and milling
interests give employment to many men, and the benefits derived from this business are
distributed as much, and sometimes more, among the laboring classes than with the owners of
the mines and mills. . . . The present prosperity of the state is entirely due to the mining
developments already made, and the entire people of the state are directly interested in having
the future developments unobstructed by the obstinate action of any individual or individuals."
Dayton Gold & Silver Mining Co., 11 Nev., at 409-410, 1876 WL, at *11.
6
See also Clark v. Nash, 198 U.S. 361, 49 L. Ed. 1085, 25 S. Ct. 676 (1905) (upholding a
statute that authorized the owner of arid land to widen a ditch on his neighbor's property so as to
permit a nearby stream to irrigate his land).
7
See, e.g., Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240
U.S. 30, 32, 60 L. Ed. 507, 36 S. Ct. 234 (1916) ("The inadequacy of use by the general public as
a universal test is established"); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014-1015, 81 L.
Ed. 2d 815, 104 S. Ct. 2862 (1984) ("This Court, however, has rejected the notion that a use is a
public use only if the property taken is put to use for the general public").
36
"We do not sit to determine whether a particular housing project is or is not desirable.
The concept of the public welfare is broad and inclusive. . . . The values it represents are
spiritual as well as physical, aesthetic as well as monetary. It is within the power of the
legislature to determine that the community should be beautiful as well as healthy,
spacious as well as clean, well-balanced as well as carefully patrolled. In the present
case, the Congress and its authorized agencies have made determinations that take into
account a wide variety of values. It is not for us to reappraise them. If those who govern
the District of Columbia decide that the Nation's Capital should be beautiful as well as
sanitary, there is nothing in the Fifth Amendment that stands in the way." Id., at 33, 99
L. Ed. 27, 75 S. Ct. 98.
In Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 81 L. Ed. 2d 186, 104 S. Ct. 2321
(1984), the Court considered a Hawaii statute whereby fee title was taken from lessors and
transferred to lessees (for just compensation) in order to reduce the concentration of land
ownership. We unanimously upheld the statute and rejected the Ninth Circuit's view that it was
"a naked attempt on the part of the state of Hawaii to take the property of A and transfer it to B
solely for B's private use and benefit." Id., at 235, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (internal
quotation marks omitted). Reaffirming Berman's deferential approach to legislative judgments
in this field, we concluded that the State's purpose of eliminating the "social and economic evils
of a land oligopoly" qualified as a valid public use. 467 U.S., at 241-242, 81 L. Ed. 2d 186, 104
S. Ct. 2321. Our opinion also rejected the contention that the mere fact that the State
immediately transferred the properties to private individuals upon condemnation somehow
diminished the public character of the taking. "[I]t is only the taking's purpose, and not its
mechanics," we explained, that matters in determining public use. Id., at 244, 81 L. Ed. 2d 186,
104 S. Ct. 2321.
In that same Term we decided another public use case that arose in a purely economic
context. In Ruckelshaus v. Monsanto Co., 467 U.S. 986, 81 L. Ed. 2d 815, 104 S. Ct. 2862
(1984), the Court dealt with provisions of the Federal Insecticide, Fungicide, and Rodenticide
Act under which the Environmental Protection Agency could consider the data (including trade
secrets) submitted by a prior pesticide applicant in evaluating a subsequent application, so long
as the second applicant paid just compensation for the data. We acknowledged that the "most
direct beneficiaries" of these provisions were the subsequent applicants, id., at 1014, 81 L. Ed. 2d
815, 104 S. Ct. 2862, but we nevertheless upheld the statute under Berman and Midkiff. We
found sufficient Congress' belief that sparing applicants the cost of time-consuming research
eliminated a significant barrier to entry in the pesticide market and thereby enhanced
competition. 467 U.S., at 1015, 81 L. Ed. 2d 815, 104 S. Ct. 2862.
Viewed as a whole, our jurisprudence has recognized that the needs of society have
varied between different parts of the Nation, just as they have evolved over time in response to
changed circumstances. Our earliest cases in particular embodied a strong theme of federalism,
emphasizing the "great respect" that we owe to state legislatures and state courts in discerning
local public needs. See Hairston v. Danville & Western R. Co., 208 U.S. 598, 606-607, 52 L. Ed.
637, 28 S. Ct. 331 (1908) (noting that these needs were likely to vary depending on a State's
"resources, the capacity of the soil, the relative importance of industries to the general public
37
welfare, and the long-established methods and habits of the people").8 For more than a century,
our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor
of affording legislatures broad latitude in determining what public needs justify the use of the
takings power.
IV
Those who govern the City were not confronted with the need to remove blight in the
Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a
program of economic rejuvenation is entitled to our deference. The City has carefully
formulated an economic development plan that it believes will provide appreciable benefits to
the community, including—but by no means limited to—new jobs and increased tax revenue.
As with other exercises in urban planning and development,9 the City is endeavoring to
coordinate a variety of commercial, residential, and recreational uses of land, with the hope that
they will form a whole greater than the sum of its parts. To effectuate this plan, the City has
invoked a state statute that specifically authorizes the use of eminent domain to promote
economic development. Given the comprehensive character of the plan, the thorough
deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for
us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal
basis, but rather in light of the entire plan. Because that plan unquestionably serves a public
purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.
To avoid this result, petitioners urge us to adopt a new bright-line rule that economic
development does not qualify as a public use. Putting aside the unpersuasive suggestion that the
City's plan will provide only purely economic benefits, neither precedent nor logic supports
petitioners' proposal. Promoting economic development is a traditional and long accepted
function of government. There is, moreover, no principled way of distinguishing economic
development from the other public purposes that we have recognized. In our cases upholding
takings that facilitated agriculture and mining, for example, we emphasized the importance of
those industries to the welfare of the States in question, see, e.g., Strickley, 200 U.S. 527, 50 L.
Ed. 581, 26 S. Ct. 301; in Berman, we endorsed the purpose of transforming a blighted area into
8
See also Clark, 198 U.S., at 367-368, 49 L. Ed. 1085, 25 S. Ct. 676; Strickley v. Highland
Boy Gold Mining Co., 200 U.S. 527, 531, 50 L. Ed. 581, 26 S. Ct. 301 (1906) ("In the opinion of
the legislature and the Supreme Court of Utah the public welfare of that State demands that aerial
lines between the mines upon its mountain sides and railways in the valleys below should not be
made impossible by the refusal of a private owner to sell the right to cross his land. The
Constitution of the United States does not require us to say that they are wrong"); O'Neill v.
Leamer, 239 U.S. 244, 253, 60 L. Ed. 249, 36 S. Ct. 54 (1915) ("States may take account of their
special exigencies, and when the extent of their arid or wet lands is such that a plan for irrigation
or reclamation according to districts may fairly be regarded as one which promotes the public
interest, there is nothing in the Federal Constitution which denies to them the right to formulate
this policy or to exercise the power of eminent domain in carrying it into effect. With the local
situation the state court is peculiarly familiar and its judgment is entitled to the highest respect").
9
Cf. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114, 4
Ohio Law Abs. 816 (1926).
38
a "well-balanced" community through redevelopment, 348 U.S., at 33, 99 L. Ed. 27, 75 S. Ct.
98;10 in Midkiff, we upheld the interest in breaking up a land oligopoly that "created artificial
deterrents to the normal functioning of the State's residential land market," 467 U.S., at 242, 81
L. Ed. 2d 186, 104 S. Ct. 2321; and in Monsanto, we accepted Congress' purpose of eliminating
a "significant barrier to entry in the pesticide market," 467 U.S., at 1014-1015, 81 L. Ed. 2d 815,
104 S. Ct. 2862. It would be incongruous to hold that the City's interest in the economic benefits
to be derived from the development of the Fort Trumbull area has less of a public character than
any of those other interests. Clearly, there is no basis for exempting economic development
from our traditionally broad understanding of public purpose.
Petitioners contend that using eminent domain for economic development impermissibly
blurs the boundary between public and private takings. Again, our cases foreclose this objection.
Quite simply, the government's pursuit of a public purpose will often benefit individual private
parties. For example, in Midkiff, the forced transfer of property conferred a direct and significant
benefit on those lessees who were previously unable to purchase their homes. In Monsanto, we
recognized that the "most direct beneficiaries" of the data-sharing provisions were the
subsequent pesticide applicants, but benefiting them in this way was necessary to promoting
competition in the pesticide market. 467 U.S., at 1014, 81 L. Ed. 2d 815, 104 S. Ct. 2862.11 The
owner of the department store in Berman objected to "taking from one businessman for the
benefit of another businessman," 348 U.S., at 33, 99 L. Ed. 27, 75 S. Ct. 98, referring to the fact
that under the redevelopment plan land would be leased or sold to private developers for
redevelopment.12 Our rejection of that contention has particular relevance to the instant case:
10
It is a misreading of Berman to suggest that the only public use upheld in that case was
the initial removal of blight. The public use described in Berman extended beyond that to
encompass the purpose of developing that area to create conditions that would prevent a
reversion to blight in the future. See 348 U.S., at 34-35, 99 L. Ed. 27, 75 S. Ct. 98 ("It was not
enough, [the experts] believed, to remove existing buildings that were insanitary or unsightly. It
was important to redesign the whole area so as to eliminate the conditions that cause slums . . . .
The entire area needed redesigning so that a balanced, integrated plan could be developed for the
region, including not only new homes, but also schools, churches, parks, streets, and shopping
centers. In this way it was hoped that the cycle of decay of the area could be controlled and the
birth of future slums prevented"). Had the public use in Berman been defined more narrowly, it
would have been difficult to justify the taking of the plaintiff's nonblighted department store.
11
Any number of cases illustrate that the achievement of a public good often coincides with
the immediate benefiting of private parties. See, e.g., National Railroad Passenger Corporation
v. Boston & Maine Corp., 503 U.S. 407, 422, 118 L. Ed. 2d 52, 112 S. Ct. 1394 (1992) (public
purpose of "facilitating Amtrak's rail service" served by taking rail track from one private
company and transferring it to another private company); Brown v. Legal Foundation of Wash.,
538 U.S. 216, 155 L. Ed. 2d 376, 123 S. Ct. 1406 (2003) (provision of legal services to the poor
is a valid public purpose). It is worth noting that in Hawaii Housing Authority v. Midkiff, 467
U.S. 229, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984), Monsanto, and Boston & Maine Corp., the
property in question retained the same use even after the change of ownership.
12
Notably, as in the instant case, the private developers in Berman were required by
contract to use the property to carry out the redevelopment plan. See 348 U.S., at 30, 99 L. Ed.
27, 75 S. Ct. 98.
39
"The public end may be as well or better served through an agency of private enterprise than
through a department of government—or so the Congress might conclude. We cannot say that
public ownership is the sole method of promoting the public purposes of community
redevelopment projects." Id., at 34, 99 L. Ed. 27, 75 S. Ct. 98.13
It is further argued that without a bright-line rule nothing would stop a city from
transferring citizen A's property to citizen B for the sole reason that citizen B will put the
property to a more productive use and thus pay more taxes. Such a one-to-one transfer of
property, executed outside the confines of an integrated development plan, is not presented in
this case. While such an unusual exercise of government power would certainly raise a suspicion
that a private purpose was afoot,14 the hypothetical cases posited by petitioners can be confronted
if and when they arise.15 They do not warrant the crafting of an artificial restriction on the
concept of public use.16
13
Nor do our cases support Justice O'Connor's novel theory that the government may only
take property and transfer it to private parties when the initial taking eliminates some "harmful
property use." There was nothing "harmful" about the non-blighted department store at issue in
Berman, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98; nothing "harmful" about the lands at issue in
the mining and agriculture cases, see, e.g., Strickley, 200 U.S. 527, 50 L. Ed. 581, 26 S. Ct. 301;
and certainly nothing "harmful" about the trade secrets owned by the pesticide manufacturers in
Monsanto, 467 U.S. 986, 81 L. Ed. 2d 815, 104 S. Ct. 2862. In each case, the public purpose we
upheld depended on a private party's future use of the concededly non-harmful property that was
taken. By focusing on a property's future use, as opposed to its past use, our cases are faithful to
the text of the Takings Clause. See U.S. Const., Amdt. 5. ("[N]or shall private property be taken
for public use, without just compensation"). Justice O'Connor's intimation that a "public
purpose" may not be achieved by the action of private parties, confuses the purpose of a taking
with its mechanics, a mistake we warned of in Midkiff, 467 U.S., at 244, 81 L. Ed. 2d 186, 104 S.
Ct. 2321. See also Berman, 348 U.S., at 33-34, 99 L. Ed. 27, 75 S. Ct. 98 ("The public end may
be as well or better served through an agency of private enterprise than through a department of
government").
14
Courts have viewed such aberrations with a skeptical eye. See, e.g., 99 Cents Only Stores
v. Lancaster Redevelopment Agency, 237 F. Supp. 2d 1123 (CD Cal. 2001); cf. Cincinnati v.
Vester, 281 U.S. 439, 448, 74 L. Ed. 950, 50 S. Ct. 360 (1930) (taking invalid under state
eminent domain statute for lack of a reasoned explanation). These types of takings may also
implicate other constitutional guarantees. See Village of Willowbrook v. Olech, 528 U.S. 562,
145 L. Ed. 2d 1060, 120 S. Ct. 1073 (2000) (per curiam).
15
Cf. Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223, 72 L. Ed. 857, 48
S. Ct. 451 (1928) (Holmes, J., dissenting) ("The power to tax is not the power to destroy while
this Court sits").
16
A parade of horribles is especially unpersuasive in this context, since the Takings Clause
largely "operates as a conditional limitation, permitting the government to do what it wants so
long as it pays the charge." Eastern Enterprises v. Apfel, 524 U.S. 498, 545, 141 L. Ed. 2d 451,
118 S. Ct. 2131 (1998) (Kennedy, J., concurring in judgment and dissenting in part). Speaking
of the takings power, Justice Iredell observed that "[i]t is not sufficient to urge, that the power
may be abused, for, such is the nature of all power, —such is the tendency of every human
institution: and, it might as fairly be said, that the power of taxation, which is only circumscribed
40
Alternatively, petitioners maintain that for takings of this kind we should require a
"reasonable certainty" that the expected public benefits will actually accrue. Such a rule,
however, would represent an even greater departure from our precedent. "When the legislature's
purpose is legitimate and its means are not irrational, our cases make clear that empirical debates
over the wisdom of takings—no less than debates over the wisdom of other kinds of
socioeconomic legislation—are not to be carried out in the federal courts." Midkiff, 467 U.S., at
242, 81 L. Ed. 2d 186, 104 S. Ct. 2321.17 Indeed, earlier this Term we explained why similar
practical concerns (among others) undermined the use of the "substantially advances" formula in
our regulatory takings doctrine. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, ___, 161 L.
Ed. 2d 876, 125 S. Ct. 2074 (2005) (noting that this formula "would empower—and might often
require—courts to substitute their predictive judgments for those of elected legislatures and
expert agencies"). The disadvantages of a heightened form of review are especially pronounced
in this type of case. Orderly implementation of a comprehensive redevelopment plan obviously
requires that the legal rights of all interested parties be established before new construction can
be commenced. A constitutional rule that required postponement of the judicial approval of
every condemnation until the likelihood of success of the plan had been assured would
unquestionably impose a significant impediment to the successful consummation of many such
plans.
Just as we decline to second-guess the City's considered judgments about the efficacy of
its development plan, we also decline to second-guess the City's determinations as to what lands
it needs to acquire in order to effectuate the project. "It is not for the courts to oversee the choice
of the boundary line nor to sit in review on the size of a particular project area. Once the
question of the public purpose has been decided, the amount and character of land to be taken for
the project and the need for a particular tract to complete the integrated plan rests in the
discretion of the legislative branch." Berman, 348 U.S., at 35-36, 99 L. Ed. 27, 75 S. Ct. 98.
In affirming the City's authority to take petitioners' properties, we do not minimize the
hardship that condemnations may entail, notwithstanding the payment of just compensation. We
by the discretion of the Body, in which it is vested, ought not to be granted, because the
Legislature, disregarding its true objects, might, for visionary and useless projects, impose a tax
to the amount of nineteen shillings in the pound. We must be content to limit power where we
can, and where we cannot, consistently with its use, we must be content to repose a salutory
confidence." Calder, 3 Dall., at 400, 1 L. Ed. 648 (opinion concurring in result).
17
See also Boston & Maine Corp., 503 U.S., at 422-423, 118 L. Ed. 2d 52, 112 S. Ct. 1394
("[W]e need not make a specific factual determination whether the condemnation will
accomplish its objectives"); Monsanto, 467 U.S., at 1015, n. 18, 81 L. Ed. 2d 815, 104 S. Ct.
2862 ("Monsanto argues that EPA and, by implication, Congress, misapprehended the true
'barriers to entry' in the pesticide industry and that the challenged provisions of the law create,
rather than reduce, barriers to entry. . . . Such economic arguments are better directed to
Congress. The proper inquiry before this Court is not whether the provisions in fact will
accomplish their stated objectives. Our review is limited to determining that the purpose is
legitimate and that Congress rationally could have believed that the provisions would promote
that objective").
41
emphasize that nothing in our opinion precludes any State from placing further restrictions on its
exercise of the takings power. Indeed, many States already impose "public use" requirements
that are stricter than the federal baseline. Some of these requirements have been established as a
matter of state constitutional law,18 while others are expressed in state eminent domain statutes
that carefully limit the grounds upon which takings may be exercised.19 As the submissions of
the parties and their amici make clear, the necessity and wisdom of using eminent domain to
promote economic development are certainly matters of legitimate public debate. This Court's
authority, however, extends only to determining whether the City's proposed condemnations are
for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution.
Because over a century of our case law interpreting that provision dictates an affirmative answer
to that question, we may not grant petitioners the relief that they seek.
The judgment of the Supreme Court of Connecticut is affirmed.
JUSTICE KENNEDY, concurring.
I join the opinion for the Court and add these further observations.
This Court has declared that a taking should be upheld as consistent with the Public Use
Clause, U.S. Const., Amdt. 5, as long as it is "rationally related to a conceivable public purpose."
Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241, 81 L. Ed. 2d 186, 104 S. Ct. 2321
(1984); see also Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98 (1954). This
deferential standard of review echoes the rational-basis test used to review economic regulation
under the Due Process and Equal Protection Clauses, see, e.g., FCC v. Beach Communications,
Inc., 508 U.S. 307, 313-314, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993); Williamson v. Lee
Optical of Okla., Inc., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955). The determination that
a rational-basis standard of review is appropriate does not, however, alter the fact that transfers
intended to confer benefits on particular, favored private entities, and with only incidental or
pretextual public benefits, are forbidden by the Public Use Clause.
A court applying rational-basis review under the Public Use Clause should strike down a
taking that, by a clear showing, is intended to favor a particular private party, with only
incidental or pretextual public benefits, just as a court applying rational-basis review under the
Equal Protection Clause must strike down a government classification that is clearly intended to
injure a particular class of private parties, with only incidental or pretextual public justifications.
See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446-447, 450, 87 L. Ed. 2d 313, 105
S. Ct. 3249 (1985); Department of Agriculture v. Moreno, 413 U.S. 528, 533-536, 37 L. Ed. 2d
782, 93 S. Ct. 2821 (1973). As the trial court in this case was correct to observe: "Where the
purpose [of a taking] is economic development and that development is to be carried out by
18
See, e.g., County of Wayne v. Hathcock, 471 Mich. 445, 684 N.W.2d 765 (2004).
Under California law, for instance, a city may only take land for economic development
purposes in blighted areas. Cal. Health & Safety Code Ann. §§ 33030-33037 (West 1999). See,
e.g., Redevelopment Agency of Chula Vista v. Rados Bros., 95 Cal. App. 4th 309, 115 Cal. Rptr.
2d 234 (2002).
19
42
private parties or private parties will be benefited, the court must decide if the stated public
purpose—economic advantage to a city sorely in need of it—is only incidental to the benefits
that will be confined on private parties of a development plan."
A court confronted with a plausible accusation of impermissible favoritism to private
parties should treat the objection as a serious one and review the record to see if it has merit,
though with the presumption that the government's actions were reasonable and intended to serve
a public purpose. Here, the trial court conducted a careful and extensive inquiry into "whether,
in fact, the development plan is of primary benefit to . . . the developer [i.e., Corcoran Jennison],
and private businesses which may eventually locate in the plan area [e.g., Pfizer], and in that
regard, only of incidental benefit to the city." The trial court considered testimony from
government officials and corporate officers; documentary evidence of communications between
these parties; respondents' awareness of New London's depressed economic condition and
evidence corroborating the validity of this concern; the substantial commitment of public funds
by the State to the development project before most of the private beneficiaries were known;
evidence that respondents reviewed a variety of development plans and chose a private developer
from a group of applicants rather than picking out a particular transferee beforehand; and the fact
that the other private beneficiaries of the project are still unknown because the office space
proposed to be built has not yet been rented.
The trial court concluded, based on these findings, that benefiting Pfizer was not "the
primary motivation or effect of this development plan"; instead, "the primary motivation for
[respondents] was to take advantage of Pfizer's presence." Likewise, the trial court concluded
that "[t]here is nothing in the record to indicate that . . . [respondents] were motivated by a desire
to aid [other] particular private entities." Even the dissenting justices on the Connecticut
Supreme Court agreed that respondents' development plan was intended to revitalize the local
economy, not to serve the interests of Pfizer, Corcoran Jennison, or any other private party. 268
Conn. 1, 159, 843 A.2d 500, 595 (2004) (Zarella, J., concurring in part and dissenting in part).
This case, then, survives the meaningful rational basis review that in my view is required under
the Public Use Clause.
Petitioners and their amici argue that any taking justified by the promotion of economic
development must be treated by the courts as per se invalid, or at least presumptively invalid.
Petitioners overstate the need for such a rule, however, by making the incorrect assumption that
review under Berman and Midkiff imposes no meaningful judicial limits on the government's
power to condemn any property it likes. A broad per se rule or a strong presumption of
invalidity, furthermore, would prohibit a large number of government takings that have the
purpose and expected effect of conferring substantial benefits on the public at large and so do not
offend the Public Use Clause.
My agreement with the Court that a presumption of invalidity is not warranted for
economic development takings in general, or for the particular takings at issue in this case, does
not foreclose the possibility that a more stringent standard of review than that announced in
Berman and Midkiff might be appropriate for a more narrowly drawn category of takings. There
may be private transfers in which the risk of undetected impermissible favoritism of private
parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under
43
the Public Use Clause. Cf. Eastern Enterprises v. Apfel, 524 U.S. 498, 549-550, 141 L. Ed. 2d
451, 118 S. Ct. 2131 (1998) (Kennedy, J., concurring in judgment and dissenting in part)
(heightened scrutiny for retroactive legislation under the Due Process Clause). This demanding
level of scrutiny, however, is not required simply because the purpose of the taking is economic
development.
This is not the occasion for conjecture as to what sort of cases might justify a more
demanding standard, but it is appropriate to underscore aspects of the instant case that convince
me no departure from Berman and Midkiff is appropriate here. This taking occurred in the
context of a comprehensive development plan meant to address a serious city-wide depression,
and the projected economic benefits of the project cannot be characterized as de minimis. The
identities of most of the private beneficiaries were unknown at the time the city formulated its
plans. The city complied with elaborate procedural requirements that facilitate review of the
record and inquiry into the city's purposes. In sum, while there may be categories of cases in
which the transfers are so suspicious, or the procedures employed so prone to abuse, or the
purported benefits are so trivial or implausible, that courts should presume an impermissible
private purpose, no such circumstances are present in this case.
For the foregoing reasons, I join in the Court's opinion.
JUSTICE O'CONNOR, with whom the CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE
THOMAS join, dissenting.
Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:
"An Act of the Legislature (for I cannot call it a law) contrary to the great first principles
of the social compact, cannot be considered a rightful exercise of legislative authority . . .
. A few instances will suffice to explain what I mean. . . . [A] law that takes property
from A. and gives it to B: It is against all reason and justice, for a people to entrust a
Legislature with such powers; and, therefore, it cannot be presumed that they have done
it." Calder v. Bull, 3 U.S. 386, 3 Dallas 386, 1 L. Ed. 648 (1798) (emphasis deleted).
Today the Court abandons this long-held, basic limitation on government power. Under
the banner of economic development, all private property is now vulnerable to being taken and
transferred to another private owner, so long as it might be upgraded—i.e., given to an owner
who will use it in a way that the legislature deems more beneficial to the public—in the process.
To reason, as the Court does, that the incidental public benefits resulting from the subsequent
ordinary use of private property render economic development takings "for public use" is to
wash out any distinction between private and public use of property--and thereby effectively to
delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly
I respectfully dissent.
I
44
Petitioners are nine resident or investment owners of 15 homes in the Fort Trumbull
neighborhood of New London, Connecticut. Petitioner Wilhelmina Dery, for example, lives in a
house on Walbach Street that has been in her family for over 100 years. She was born in the
house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in
1946. Their son lives next door with his family in the house he received as a wedding gift, and
joins his parents in this suit. Two petitioners keep rental properties in the neighborhood.
In February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would
build a global research facility near the Fort Trumbull neighborhood. Two months later, New
London's city council gave initial approval for the New London Development Corporation
(NLDC) to prepare the development plan at issue here. The NLDC is a private, nonprofit
corporation whose mission is to assist the city council in economic development planning. It is
not elected by popular vote, and its directors and employees are privately appointed. Consistent
with its mandate, the NLDC generated an ambitious plan for redeveloping 90 acres of Fort
Trumbull in order to "complement the facility that Pfizer was planning to build, create jobs,
increase tax and other revenues, encourage public access to and use of the city's waterfront, and
eventually 'build momentum' for the revitalization of the rest of the city."
Petitioners own properties in two of the plan's seven parcels—Parcel 3 and Parcel 4A.
Under the plan, Parcel 3 is slated for the construction of research and office space as a market
develops for such space. It will also retain the existing Italian Dramatic Club (a private cultural
organization) though the homes of three plaintiffs in that parcel are to be demolished. Parcel 4A
is slated, mysteriously, for "'park support.'" At oral argument, counsel for respondents conceded
the vagueness of this proposed use, and offered that the parcel might eventually be used for
parking.
To save their homes, petitioners sued New London and the NLDC, to whom New
London has delegated eminent domain power. Petitioners maintain that the Fifth Amendment
prohibits the NLDC from condemning their properties for the sake of an economic development
plan. Petitioners are not holdouts; they do not seek increased compensation, and none is opposed
to new development in the area. Theirs is an objection in principle: They claim that the NLDC's
proposed use for their confiscated property is not a "public" one for purposes of the Fifth
Amendment. While the government may take their homes to build a road or a railroad or to
eliminate a property use that harms the public, say petitioners, it cannot take their property for
the private use of other owners simply because the new owners may make more productive use
of the property.
II
The Fifth Amendment to the Constitution, made applicable to the States by the
Fourteenth Amendment, provides that "private property [shall not] be taken for public use,
without just compensation." When interpreting the Constitution, we begin with the unremarkable
presumption that every word in the document has independent meaning, "that no word was
unnecessarily used, or needlessly added." Wright v. United States, 302 U.S. 583, 588, 82 L. Ed.
439, 58 S. Ct. 395, 86 Ct. Cl. 764 (1938). In keeping with that presumption, we have read the
Fifth Amendment's language to impose two distinct conditions on the exercise of eminent
45
domain: "the Taking must be for a 'public use' and 'just compensation' must be paid to the
owner." Brown v. Legal Foundation of Wash., 538 U.S. 216, 231-232, 155 L. Ed. 2d 376, 123 S.
Ct. 1406 (2003).
These two limitations serve to protect "the security of Property," which Alexander
Hamilton described to the Philadelphia Convention as one of the "great obj[ects] of
Gov[ernment]." 1 Records of the Federal Convention of 1787, p 302 (M. Farrand ed. 1911).
Together they ensure stable property ownership by providing safeguards against excessive,
unpredictable, or unfair use of the government's eminent domain power--particularly against
those owners who, for whatever reasons, may be unable to protect themselves in the political
process against the majority's will.
While the Takings Clause presupposes that government can take private property without
the owner's consent, the just compensation requirement spreads the cost of condemnations and
thus "prevents the public from loading upon one individual more than his just share of the
burdens of government." Monongahela Nav. Co. v. United States, 148 U.S. 312, 325, 37 L. Ed.
463, 13 S. Ct. 622 (1893); see also Armstrong v. United States, 364 U.S. 40, 49, 4 L. Ed. 2d
1554, 80 S. Ct. 1563 (1960). The public use requirement, in turn, imposes a more basic
limitation, circumscribing the very scope of the eminent domain power: Government may
compel an individual to forfeit her property for the public's use, but not for the benefit of another
private person. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 336, 152 L. Ed.
2d 517, 122 S. Ct. 1465 (2002) ("The concepts of 'fairness and justice' . . . underlie the Takings
Clause").
Where is the line between "public" and "private" property use? We give considerable
deference to legislatures' determinations about what governmental activities will advantage the
public. But were the political branches the sole arbiters of the public-private distinction, the
Public Use Clause would amount to little more than hortatory fluff. An external, judicial check
on how the public use requirement is interpreted, however limited, is necessary if this constraint
on government power is to retain any meaning. See Cincinnati v. Vester, 281 U.S. 439, 446, 74
L. Ed. 950, 50 S. Ct. 360 (1930) ("It is well established that . . . the question [of] what is a public
use is a judicial one").
***
This case returns us for the first time in over 20 years to the hard question of when a
purportedly "public purpose" taking meets the public use requirement. It presents an issue of
first impression: Are economic development takings constitutional? I would hold that they are
not. We are guided by two precedents about the taking of real property by eminent domain.
***
In [Berman and Midkiff], we emphasized the importance of deferring to legislative
judgments about public purpose. Because courts are ill equipped to evaluate the efficacy of
proposed legislative initiatives, we rejected as unworkable the idea of courts' "'deciding on what
46
is and is not a governmental function and . . . invalidating legislation on the basis of their view
on that question at the moment of decision, a practice which has proved impracticable in other
fields.'" [Midkiff,] at 240-241, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (quoting United States ex rel.
TVA v. Welch, 327 U.S. 546, 552, 90 L. Ed. 843, 66 S. Ct. 715 (1946)); see Berman, supra, at 32,
99 L. Ed. 27, 75 S. Ct. 98 ("[T]he legislature, not the judiciary, is the main guardian of the public
needs to be served by social legislation"); see also Lingle v. Chevron U.S.A., Inc., 544 U.S. 528,
161 L. Ed. 2d 876, 125 S. Ct. 2074 (2005). Likewise, we recognized our inability to evaluate
whether, in a given case, eminent domain is a necessary means by which to pursue the
legislature's ends. Midkiff, supra, at 242, 81 L. Ed. 2d 186, 104 S. Ct. 2321; Berman, supra, at
33, 99 L. Ed. 27, 75 S. Ct. 98.
Yet for all the emphasis on deference, Berman and Midkiff hewed to a bedrock principle
without which our public use jurisprudence would collapse: "A purely private taking could not
withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of
government and would thus be void." Midkiff, 467 U.S., at 245, 81 L. Ed. 2d 186, 104 S. Ct.
2321; id., at 241, 81 L. Ed. 2d 186, 104 S. Ct. 2321 ("[T]he Court's cases have repeatedly stated
that 'one person's property may not be taken for the benefit of another private person without a
justifying public purpose, even though compensation be paid'" (quoting Thompson v.
Consolidated Gas Util. Corp., 300 U.S. 55, 80, 81 L. Ed. 510, 57 S. Ct. 364 (1937))); see also
Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403, 417, 41 L. Ed. 489, 17 S. Ct. 130 (1896). To
protect that principle, those decisions reserved "a role for courts to play in reviewing a
legislature's judgment of what constitutes a public use . . . [though] the Court in Berman made
clear that it is 'an extremely narrow' one." Midkiff, supra, at 240, 81 L. Ed. 2d 186, 104 S. Ct.
2321 (quoting Berman, supra, at 32, 99 L. Ed. 27, 75 S. Ct. 98).
The Court's holdings in Berman and Midkiff were true to the principle underlying the
Public Use Clause. In both those cases, the extraordinary, pre-condemnation use of the targeted
property inflicted affirmative harm on society—in Berman through blight resulting from extreme
poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the
relevant legislative body had found that eliminating the existing property use was necessary to
remedy the harm. Berman, supra, at 28-29, 99 L. Ed. 27, 75 S. Ct. 98; Midkiff, supra, at 232, 81
L. Ed. 2d 186, 104 S. Ct. 2321. Thus a public purpose was realized when the harmful use was
eliminated. Because each taking directly achieved a public benefit, it did not matter that the
property was turned over to private use. Here, in contrast, New London does not claim that
Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm.
Indeed, it could not so claim without adopting the absurd argument that any single-family home
that might be razed to make way for an apartment building, or any church that might be replaced
with a retail store, or any small business that might be more lucrative if it were instead part of a
national franchise, is inherently harmful to society and thus within the government's power to
condemn.
In moving away from our decisions sanctioning the condemnation of harmful property
use, the Court today significantly expands the meaning of public use. It holds that the sovereign
may take private property currently put to ordinary private use, and give it over for new, ordinary
private use, so long as the new use is predicted to generate some secondary benefit for the
public—such as increased tax revenue, more jobs, maybe even esthetic pleasure. But nearly any
47
lawful use of real private property can be said to generate some incidental benefit to the public.
Thus, if predicted (or even guaranteed) positive side effects are enough to render transfer from
one private party to another constitutional, then the words "for public use" do not realistically
exclude any takings, and thus do not exert any constraint on the eminent domain power.
There is a sense in which this troubling result follows from errant language in Berman
and Midkiff. In discussing whether takings within a blighted neighborhood were for a public use,
Berman began by observing: "We deal, in other words, with what traditionally has been known
as the police power." 348 U.S., at 32, 99 L. Ed. 27, 75 S. Ct. 98. From there it declared that
"[o]nce the object is within the authority of Congress, the right to realize it through the exercise
of eminent domain is clear." Id., at 33, 99 L. Ed. 27, 75 S. Ct. 98. Following up, we said in
Midkiff that "[t]he 'public use' requirement is coterminous with the scope of a sovereign's police
powers." 467 U.S., at 240, 81 L. Ed. 2d 186, 104 S. Ct. 2321. This language was unnecessary to
the specific holdings of those decisions. Berman and Midkiff simply did not put such language to
the constitutional test, because the takings in those cases were within the police power but also
for "public use" for the reasons I have described. The case before us now demonstrates why,
when deciding if a taking's purpose is constitutional, the police power and "public use" cannot
always be equated.
The Court protests that it does not sanction the bare transfer from A to B for B's benefit.
It suggests two limitations on what can be taken after today's decision. First, it maintains a role
for courts in ferreting out takings whose sole purpose is to bestow a benefit on the private
transferee—without detailing how courts are to conduct that complicated inquiry. For his part,
Justice Kennedy suggests that courts may divine illicit purpose by a careful review of the record
and the process by which a legislature arrived at the decision to take—without specifying what
courts should look for in a case with different facts, how they will know if they have found it,
and what to do if they do not. Whatever the details of Justice Kennedy's as-yet-undisclosed test,
it is difficult to envision anyone but the "stupid staff[er]" failing it. See Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 1025-1026, n. 12, 120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992).
The trouble with economic development takings is that private benefit and incidental public
benefit are, by definition, merged and mutually reinforcing. In this case, for example, any boon
for Pfizer or the plan's developer is difficult to disaggregate from the promised public gains in
taxes and jobs.
Even if there were a practical way to isolate the motives behind a given taking, the
gesture toward a purpose test is theoretically flawed. If it is true that incidental public benefits
from new private use are enough to ensure the "public purpose" in a taking, why should it matter,
as far as the Fifth Amendment is concerned, what inspired the taking in the first place? How
much the government does or does not desire to benefit a favored private party has no bearing on
whether an economic development taking will or will not generate secondary benefit for the
public. And whatever the reason for a given condemnation, the effect is the same from the
constitutional perspective—private property is forcibly relinquished to new private ownership.
A second proposed limitation is implicit in the Court's opinion. The logic of today's
decision is that eminent domain may only be used to upgrade—not downgrade—property. At
best this makes the Public Use Clause redundant with the Due Process Clause, which already
48
prohibits irrational government action. See Lingle, 544 U.S. 528, 161 L. Ed. 2d 876, 125 S. Ct.
2074. The Court rightfully admits, however, that the judiciary cannot get bogged down in
predictive judgments about whether the public will actually be better off after a property transfer.
In any event, this constraint has no realistic import. For who among us can say she already
makes the most productive or attractive possible use of her property? The specter of
condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel
6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. Cf. Bugryn v.
Bristol, 63 Conn. App. 98, 774 A.2d 1042 (2001) (taking the homes and farm of four owners in
their 70's and 80's and giving it to an "industrial park"); 99 Cents Only Stores v. Lancaster
Redevelopment Agency, 237 F. Supp. 2d 1123 (CD Cal. 2001) (attempted taking of 99 Cents
store to replace with a Costco); Poletown Neighborhood Council v. Detroit, 410 Mich. 616, 304
N.W.2d 455 (1981) (taking a working-class, immigrant community in Detroit and giving it to a
General Motors assembly plant), overruled by County of Wayne v. Hathcock, 471 Mich. 445, 684
N.W.2d 765 (2004); Brief for Becket Fund for Religious Liberty as Amicus Curiae 4-11
(describing takings of religious institutions' properties); Institute for Justice, D. Berliner, Public
Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent
Domain (2003) (collecting accounts of economic development takings).
The Court also puts special emphasis on facts peculiar to this case: The NLDC's plan is
the product of a relatively careful deliberative process; it proposes to use eminent domain for a
multipart, integrated plan rather than for isolated property transfer; it promises an array of
incidental benefits (even esthetic ones), not just increased tax revenue; it comes on the heels of a
legislative determination that New London is a depressed municipality. Justice Kennedy, too,
takes great comfort in these facts. But none has legal significance to blunt the force of today's
holding. If legislative prognostications about the secondary public benefits of a new use can
legitimate a taking, there is nothing in the Court's rule or in Justice Kennedy's gloss on that rule
to prohibit property transfers generated with less care, that are less comprehensive, that happen
to result from less elaborate process, whose only projected advantage is the incidence of higher
taxes, or that hope to transform an already prosperous city into an even more prosperous one.
Finally, in a coda, the Court suggests that property owners should turn to the States, who
may or may not choose to impose appropriate limits on economic development takings. This is
an abdication of our responsibility. States play many important functions in our system of dual
sovereignty, but compensating for our refusal to enforce properly the Federal Constitution (and a
provision meant to curtail state action, no less) is not among them.
***
It was possible after Berman and Midkiff to imagine unconstitutional transfers from A to
B. Those decisions endorsed government intervention when private property use had veered to
such an extreme that the public was suffering as a consequence. Today nearly all real property is
susceptible to condemnation on the Court's theory. In the prescient words of a dissenter from the
infamous decision in Poletown, "[n]ow that we have authorized local legislative bodies to decide
that a different commercial or industrial use of property will produce greater public benefits than
its present use, no homeowner's, merchant's or manufacturer's property, however productive or
valuable to its owner, is immune from condemnation for the benefit of other private interests that
49
will put it to a 'higher' use." 410 Mich., at 644-645, 304 N. W. 2d, at 464 (opinion of Fitzgerald,
J.). This is why economic development takings "seriously jeopardiz[e] the security of all private
property ownership." Id., at 645, 304 N. W. 2d, at 465 (Ryan, J., dissenting).
Any property may now be taken for the benefit of another private party, but the fallout
from this decision will not be random. The beneficiaries are likely to be those citizens with
disproportionate influence and power in the political process, including large corporations and
development firms. As for the victims, the government now has license to transfer property from
those with fewer resources to those with more. The Founders cannot have intended this perverse
result. "[T]hat alone is a just government," wrote James Madison, "which impartially secures to
every man, whatever is his own." For the National Gazette, Property, (Mar. 27, 1792), reprinted
in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).
I would hold that the takings in both Parcel 3 and Parcel 4A are unconstitutional, reverse
the judgment of the Supreme Court of Connecticut, and remand for further proceedings.
JUSTICE THOMAS, dissenting.
Long ago, William Blackstone wrote that "the law of the land . . . postpone[s] even public
necessity to the sacred and inviolable rights of private property." 1 Commentaries on the Laws of
England 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the
Constitution, allowing the government to take property not for "public necessity," but instead for
"public use." Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause
with a "'[P]ublic [P]urpose'" Clause (or perhaps the "Diverse and Always Evolving Needs of
Society" Clause (capitalization added)), a restriction that is satisfied, the Court instructs, so long
as the purpose is "legitimate" and the means "not irrational." This deferential shift in
phraseology enables the Court to hold, against all common sense, that a costly urban-renewal
project whose stated purpose is a vague promise of new jobs and increased tax revenue, but
which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."
I cannot agree. If such "economic development" takings are for a "public use," any
taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice
O'Connor powerfully argues in dissent. I do not believe that this Court can eliminate liberties
expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably,
however, the Court's error runs deeper than this. Today's decision is simply the latest in a string
of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to
its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful
limit on the government's eminent domain power. Our cases have strayed from the Clause's
original meaning, and I would reconsider them.
I
The Fifth Amendment provides:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval
50
forces, or in the Militia, when in actual service in time of War or public danger; nor shall
any person be subject for the same offence to be twice put in jeopardy of life or limb, nor
shall be compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation." (Emphasis added.)
It is the last of these liberties, the Takings Clause, that is at issue in this case. In my
view, it is "imperative that the Court maintain absolute fidelity to" the Clause's express limit on
the power of the government over the individual, no less than with every other liberty expressly
enumerated in the Fifth Amendment or the Bill of Rights more generally. Shepard v. United
States, 544 U.S. 13, 28, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005) (Thomas, J., concurring in
part and concurring in judgment) (internal quotation marks omitted).
Though one component of the protection provided by the Takings Clause is that the
government can take private property only if it provides "just compensation" for the taking, the
Takings Clause also prohibits the government from taking property except "for public use."
Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use
Clause served no function other than to state that the government may take property through its
eminent domain power—for public or private uses—then it would be surplusage. See ante, at
496, 162 L. Ed. 2d, at 462 (O'Connor, J., dissenting); see also Marbury v. Madison, 5 U.S. 137, 1
Cranch 137, 174, 2 L. Ed. 60 (1803) ("It cannot be presumed that any clause in the constitution is
intended to be without effect"); Myers v. United States, 272 U.S. 52, 151, 71 L. Ed. 160, 47 S.
Ct. 21 (1926). Alternatively, the Clause could distinguish those takings that require
compensation from those that do not. That interpretation, however, "would permit private
property to be taken or appropriated for private use without any compensation whatever." Cole
v. La Grange, 113 U.S. 1, 8, 28 L. Ed. 896, 5 S. Ct. 416 (1885) (interpreting same language in
the Missouri Public Use Clause). In other words, the Clause would require the government to
compensate for takings done "for public use," leaving it free to take property for purely private
uses without the payment of compensation. This would contradict a bedrock principle well
established by the time of the founding: that all takings required the payment of compensation. 1
Blackstone 135; 2 J. Kent, Commentaries on American Law 275 (1827) (hereinafter Kent); For
the National Property Gazette, (Mar. 27, 1792), in 14 Papers of James Madison 266, 267 (R.
Rutland et al. eds. 1983) (arguing that no property "shall be taken directly even for public use
without indemnification to the owner").20 The Public Use Clause, like the Just Compensation
Clause, is therefore an express limit on the government's power of eminent domain.
The most natural reading of the Clause is that it allows the government to take property
only if the government owns, or the public has a legal right to use, the property, as opposed to
taking it for any public purpose or necessity whatsoever. At the time of the founding,
20
Some state constitutions at the time of the founding lacked just compensation clauses and
took property even without providing compensation. See Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1056-1057, 120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992) (Blackmun, J.,
dissenting). The Framers of the Fifth Amendment apparently disagreed, for they expressly
prohibited uncompensated takings, and the Fifth Amendment was not incorporated against the
States until much later. See id., at 1028, n. 15, 120 L. Ed. 2d 798, 112 S. Ct. 2886.
51
dictionaries primarily defined the noun "use" as "[t]he act of employing any thing to any
purpose." 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter
Johnson). The term "use," moreover, "is from the Latin utor, which means 'to use, make use of,
avail one's self of, employ, apply, enjoy, etc." J. Lewis, Law of Eminent Domain § 165, p 224, n
4 (1888) (hereinafter Lewis). When the government takes property and gives it to a private
individual, and the public has no right to use the property, it strains language to say that the
public is "employing" the property, regardless of the incidental benefits that might accrue to the
public from the private use. The term "public use," then, means that either the government or its
citizens as a whole must actually "employ" the taken property. See id., at 223 (reviewing
founding-era dictionaries).
Ganted, another sense of the word "use" was broader in meaning, extending to
"[c]onvenience" or "help," or "[q]ualities that make a thing proper for any purpose." 2 Johnson
2194. Nevertheless, read in context, the term "public use" possesses the narrower meaning.
Elsewhere, the Constitution twice employs the word "use," both times in its narrower sense.
Claeys, Public-Use Limitations and Natural Property Rights, 2004 Mich. St. L. Rev. 877, 897
(hereinafter Public Use Limitations). Article I, § 10 provides that "the net Produce of all Duties
and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the
United States," meaning the Treasury itself will control the taxes, not use it to any beneficial end.
And Article I, § 8 grants Congress power "[t]o raise and support Armies, but no Appropriation of
Money to that Use shall be for a longer Term than two Years." Here again, "use" means
"employed to raise and support Armies," not anything directed to achieving any military end.
The same word in the Public Use Clause should be interpreted to have the same meaning.
Tellingly, the phrase "public use" contrasts with the very different phrase "general Welfare" used
elsewhere in the Constitution. See ibid. ("Congress shall have Power To . . . provide for the
common Defence and general Welfare of the United States"); preamble (Constitution established
"to promote the general Welfare"). The Framers would have used some such broader term if
they had meant the Public Use Clause to have a similarly sweeping scope. Other founding-era
documents made the contrast between these two usages still more explicit. See Sales, Classical
Republicanism and the Fifth Amendment's "Public Use" Requirement, 49 Duke L. J. 339, 367368 (1999) (hereinafter Sales) (noting contrast between, on the one hand, the term "public use"
used by 6 of the first 13 States and, on the other, the terms "public exigencies" employed in the
Massachusetts Bill of Rights and the Northwest Ordinance, and the term "public necessity" used
in the Vermont Constitution of 1786). The Constitution's text, in short, suggests that the Takings
Clause authorizes the taking of property only if the public has a right to employ it, not if the
public realizes any conceivable benefit from the taking.
The Constitution's common-law background reinforces this understanding. The common
law provided an express method of eliminating uses of land that adversely impacted the public
welfare: nuisance law. Blackstone and Kent, for instance, both carefully distinguished the law of
nuisance from the power of eminent domain. Compare 1 Blackstone 135 (noting government's
power to take private property with compensation) with 3 id., at 216 (noting action to remedy
"public . . . nuisances, which affect the public, and are an annoyance to all the king's subjects");
see also 2 Kent 274-276 (distinguishing the two). Blackstone rejected the idea that private
property could be taken solely for purposes of any public benefit. "So great . . . is the regard of
the law for private property," he explained, "that it will not authorize the least violation of it; no,
52
not even for the general good of the whole community." 1 Blackstone 135. He continued: "If a
new road . . . were to be made through the grounds of a private person, it might perhaps be
extensively beneficial to the public; but the law permits no man, or set of men, to do this without
the consent of the owner of the land." Ibid. Only "by giving [the landowner] full
indemnification" could the government take property, and even then "[t]he public [was] now
considered as an individual, treating with an individual for an exchange." Ibid. When the public
took property, in other words, it took it as an individual buying property from another typically
would: for one's own use. The Public Use Clause, in short, embodied the Framers' understanding
that property is a natural, fundamental right, prohibiting the government from "tak[ing] property
from A. and giv[ing] it to B." Calder v. Bull, 3 Dall. 386, 388, 1 L. Ed. 648 (1798); see also
Wilkinson v. Leland, 27 U.S. 627, 2 Pet. 627, 658, 7 L. Ed. 542 (1829); Vanhorne's Lessee v.
Dorrance, 2 U.S. 304, 2 Dallas 304, 1 L. Ed. 391 (CC Pa. 1795).
The public purpose interpretation of the Public Use Clause also unnecessarily duplicates
a similar inquiry required by the Necessary and Proper Clause. The Takings Clause is a
prohibition, not a grant of power: The Constitution does not expressly grant the Federal
Government the power to take property for any public purpose whatsoever. Instead, the
Government may take property only when necessary and proper to the exercise of an expressly
enumerated power. See Kohl v. United States, 91 U.S. 367, 371-372, 23 L. Ed. 449 (1876)
(noting Federal Government's power under the Necessary and Proper Clause to take property
"needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses,
post-offices, and court-houses, and for other public uses"). For a law to be within the Necessary
and Proper Clause, as I have elsewhere explained, it must bear an "obvious, simple, and direct
relation" to an exercise of Congress' enumerated powers, Sabri v. United States, 541 U.S. 600,
613, 158 L. Ed. 2d 891, 124 S. Ct. 1941 (2004) (Thomas, J., concurring in judgment), and it must
not "subvert basic principles of" constitutional design, Gonzales v. Raich, ante, at 65, 162 L. Ed.
2d 1, 125 S. Ct. 2195 (Thomas, J., dissenting). In other words, a taking is permissible under the
Necessary and Proper Clause only if it serves a valid public purpose. Interpreting the Public Use
Clause likewise to limit the government to take property only for sufficiently public purposes
replicates this inquiry. If this is all the Clause means, it is, once again, surplusage. The Clause is
thus most naturally read to concern whether the property is used by the public or the government,
not whether the purpose of the taking is legitimately public.
II
Early American eminent domain practice largely bears out this understanding of the
Public Use Clause. This practice concerns state limits on eminent domain power, not the Fifth
Amendment, since it was not until the late 19th century that the Federal Government began to
use the power of eminent domain, and since the Takings Clause did not even arguably limit state
power until after the passage of the Fourteenth Amendment. See Note, The Public Use
Limitation on Eminent Domain: An Advance Requiem, 58 Yale L. J. 567, 599-600, and nn. 3-4
(1949); Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. 243, 7 Pet. 243, 250-251, 8 L. Ed.
672 (1833) (holding the Takings Clause inapplicable to the States of its own force).
Nevertheless, several early state constitutions at the time of the founding likewise limited the
power of eminent domain to "public uses." See Sales 367-369, and n. 137 (emphasis deleted).
53
Their practices therefore shed light on the original meaning of the same words contained in the
Public Use Clause.
States employed the eminent domain power to provide quintessentially public goods,
such as public roads, toll roads, ferries, canals, railroads, and public parks. Lewis §§ 166, 168171, 175, at 227-228, 234-241, 243. Though use of the eminent domain power was sparse at the
time of the founding, many States did have so-called Mill Acts, which authorized the owners of
grist mills operated by water power to flood upstream lands with the payment of compensation to
the upstream landowner. See, e.g., id., § 178, at 245-246; Head v. Amoskeag Mfg. Co., 113 U.S.
9, 16-19, 28 L. Ed. 889, 5 S. Ct. 441, and n. (1885). Those early grist mills "were regulated by
law and compelled to serve the public for a stipulated toll and in regular order," and therefore
were actually used by the public. Lewis § 178, at 246, and n. 3; see also Head, supra, at 18-19,
28 L. Ed. 889, 5 S. Ct. 441. They were common carriers—quasi-public entities. These were
"public uses" in the fullest sense of the word, because the public could legally use and benefit
from them equally. See Public Use Limitations 903 (common-carrier status traditionally
afforded to "private beneficiaries of a state franchise or another form of state monopoly, or to
companies that operated in conditions of natural monopoly").
To be sure, some early state legislatures tested the limits of their state-law eminent
domain power. Some States enacted statutes allowing the taking of property for the purpose of
building private roads. See Lewis § 167, at 230. These statutes were mixed; some required the
private landowner to keep the road open to the public, and others did not. See id., § 167, at 230234. Later in the 19th century, moreover, the Mill Acts were employed to grant rights to private
manufacturing plants, in addition to grist mills that had common-carrier duties. See, e.g., M.
Horwitz, The Transformation of American Law 1780-1860, pp. 51-52 (1977).
These early uses of the eminent domain power are often cited as evidence for the broad
"public purpose" interpretation of the Public Use Clause, see, e.g., ante, at 479-480, n 8, 162 L.
Ed. 2d, at 450-451 (majority opinion); but in fact the constitutionality of these exercises of
eminent domain power under state public use restrictions was a hotly contested question in state
courts throughout the 19th and into the 20th century. Some courts construed those clauses to
authorize takings for public purposes, but others adhered to the natural meaning of "public
use."21 As noted above, the earliest Mill Acts were applied to entities with duties to remain open
21
Compare ante, at 479, 162 L. Ed. 2d, at 450-451, and n. 8 (majority opinion) (noting that
some state courts upheld the validity of applying the Mill Acts to private purposes and arguing
that the "'use by the public' test" "eroded over time"), with, e.g., Ryerson v. Brown, 35 Mich. 333,
338-339 (1877) (holding it "essential" to the constitutionality of a Mill Act "that the statute
should require the use to be public in fact; in other words, that it should contain provisions
entitling the public to accommodations"); Gaylord v. Sanitary Dist. of Chicago, 204 Ill. 576,
581-584, 68 N. E. 522, 524 (1903) (same); Tyler v. Beacher, 44 Vt. 648, 652-656 (1871) (same);
Sadler v. Langham, 34 Ala. 311, 332-334 (1859) (striking down taking for purely private road
and grist mill); Varner v. Martin, 21 W. Va. 534, 546-548, 556-557, 566-567 (1883) (grist mill
and private road had to be open to public for them to constitute public use); Harding v. Goodlett,
3 Yer. 41, 53 (Tenn. 1832); Jacobs v. Clearview Water Supply Co., 220 Pa. 388, 393-395, 69 A.
870, 872 (1908) (endorsing actual public use standard); Minnesota Canal & Power Co. v.
54
to the public, and their later extension is not deeply probative of whether that subsequent practice
is consistent with the original meaning of the Public Use Clause. See McIntyre v. Ohio Elections
Comm'n, 514 U.S. 334, 370, 131 L. Ed. 2d 426, 115 S. Ct. 1511 (1995) (Thomas, J., concurring
in judgment). At the time of the founding, "[b]usiness corporations were only beginning to upset
the old corporate model, in which the raison d'etre of chartered associations was their service to
the public," Horwitz, supra, at 49-50, so it was natural to those who framed the first Public Use
Clauses to think of mills as inherently public entities. The disagreement among state courts, and
state legislatures' attempts to circumvent public use limits on their eminent domain power,
cannot obscure that the Public Use Clause is most naturally read to authorize takings for public
use only if the government or the public actually uses the taken property.
III
Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural
reading of the Clause. The Court adopted its modern reading blindly, with little discussion of the
Clause's history and original meaning, in two distinct lines of cases: first, in cases adopting the
"public purpose" interpretation of the Clause, and second, in cases deferring to legislatures'
judgments regarding what constitutes a valid public purpose. Those questionable cases
converged in the boundlessly broad and deferential conception of "public use" adopted by this
Court in Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98 (1954), and Hawaii Housing
Authority v. Midkiff, 467 U.S. 229, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984), cases that take
center stage in the Court's opinion. The weakness of those two lines of cases, and consequently
Berman and Midkiff, fatally undermines the doctrinal foundations of the Court's decision.
Today's questionable application of these cases is further proof that the "public purpose"
standard is not susceptible of principled application. This Court's reliance by rote on this
standard is ill advised and should be reconsidered.
A
As the Court notes, the "public purpose" interpretation of the Public Use Clause stems
from Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 161-162, 41 L. Ed. 369, 17 S. Ct. 56
(1896). The issue in Bradley was whether a condemnation for purposes of constructing an
irrigation ditch was for a public use. 164 U.S., at 161, 41 L. Ed. 369, 17 S. Ct. 56. This was a
public use, Justice Peckham declared for the Court, because "[t]o irrigate and thus to bring into
possible cultivation these large masses of otherwise worthless lands would seem to be a public
purpose and a matter of public interest, not confined to landowners, or even to any one section of
the State." Ibid. That broad statement was dictum, for the law under review also provided that
"[a]ll landowners in the district have the right to a proportionate share of the water." Id., at 162,
41 L. Ed. 369, 17 S. Ct. 56. Thus, the "public" did have the right to use the irrigation ditch
because all similarly situated members of the public—those who owned lands irrigated by the
ditch—had a right to use it. The Court cited no authority for its dictum, and did not discuss
Koochiching Co., 97 Minn. 429, 449-451, 107 N. W. 405, 413 (1906) (same); Chesapeake Stone
Co. v. Moreland, 126 Ky. 656, 663-667, 104 S. W. 762, 765, 31 Ky. L. Rptr. 1075 (Ct. App.
1907) (same); Note, Public Use in Eminent Domain, 21 N. Y. U. L. Q. Rev. 285, 286, and n 11
(1946) (calling the actual public use standard the "majority view" and citing other cases).
55
either the Public Use Clause's original meaning or the numerous authorities that had adopted the
"actual use" test (though it at least acknowledged the conflict of authority in state courts, see id.,
at 158, 41 L. Ed. 369, 17 S. Ct. 56; supra, at 513-514, 162 L. Ed. 2d, at 473, and n 2). Instead,
the Court reasoned that "[t]he use must be regarded as a public use, or else it would seem to
follow that no general scheme of irrigation can be formed or carried into effect." Bradley, supra,
at 160-161, 41 L. Ed. 369, 17 S. Ct. 56. This is no statement of constitutional principle:
Whatever the utility of irrigation districts or the merits of the Court's view that another rule
would be "impractical given the diverse and always evolving needs of society," ante, at 479, 162
L. Ed. 2d, at 451, the Constitution does not embody those policy preferences any more than it
"enact[s] Mr. Herbert Spencer's Social Statics," Lochner v. New York, 198 U.S. 45, 75, 49 L. Ed.
937, 25 S. Ct. 539 (1905) (Holmes, J., dissenting); but see id., at 58-62, 49 L. Ed. 937, 25 S. Ct.
539 (Peckham, J., for the Court).
This Court's cases followed Bradley's test with little analysis. In Clark v. Nash, 198 U.S.
361, 49 L. Ed. 1085, 25 S. Ct. 676 (1905) (Peckham, J., for the Court), this Court relied on little
more than a citation to Bradley in upholding another condemnation for the purpose of laying an
irrigation ditch. 198 U.S., at 369-370, 49 L. Ed. 1085, 25 S. Ct. 676. As in Bradley, use of the
"public purpose" test was unnecessary to the result the Court reached. The government
condemned the irrigation ditch for the purpose of ensuring access to water in which "[o]ther land
owners adjoining the defendant in error . . . might share," 198 U.S., at 370, 49 L. Ed. 1085, 25 S.
Ct. 676, and therefore Clark also involved a condemnation for the purpose of ensuring access to
a resource to which similarly situated members of the public had a legal right of access.
Likewise, in Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 50 L. Ed. 581, 26 S. Ct.
301 (1906), the Court upheld a condemnation establishing an aerial right-of-way for a bucket
line operated by a mining company, relying on little more than Clark, see Strickley, supra, at
531, 50 L. Ed. 581, 26 S. Ct. 301. This case, too, could have been disposed of on the narrower
ground that "the plaintiff [was] a carrier for itself and others," 200 U.S., at 531-532, 50 L. Ed.
581, 26 S. Ct. 301, and therefore that the bucket line was legally open to the public. Instead, the
Court unnecessarily rested its decision on the "inadequacy of use by the general public as a
universal test." Id., at 531, 50 L. Ed. 581, 26 S. Ct. 301. This Court's cases quickly incorporated
the public purpose standard set forth in Clark and Strickley by barren citation. See, e.g., Rindge
Co. v. County of Los Angeles, 262 U.S. 700, 707, 67 L. Ed. 1186, 43 S. Ct. 689 (1923); Block v.
Hirsh, 256 U.S. 135, 155, 65 L. Ed. 865, 41 S. Ct. 458 (1921); Mt. Vernon-Woodberry Cotton
Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 32, 60 L. Ed. 507, 36 S. Ct. 234 (1916);
O'Neill v. Leamer, 239 U.S. 244, 253, 60 L. Ed. 249, 36 S. Ct. 54 (1915).
B
A second line of this Court's cases also deviated from the Public Use Clause's original
meaning by allowing legislatures to define the scope of valid "public uses." United States v.
Gettysburg Electric R. Co., 160 U.S. 668, 40 L. Ed. 576, 16 S. Ct. 427 (1896), involved the
question whether Congress' decision to condemn certain private land for the purpose of building
battlefield memorials at Gettysburg, Pennsylvania, was for a public use. Id., at 679-680, 40 L.
Ed. 576, 16 S. Ct. 427. Since the Federal Government was to use the lands in question, there is
no doubt that it was a public use under any reasonable standard. Nonetheless, the Court,
speaking through Justice Peckham, declared that "when the legislature has declared the use or
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purpose to be a public one, its judgment will be respected by the courts, unless the use be
palpably without reasonable foundation." Id., at 680, 40 L. Ed. 576, 16 S. Ct. 427. As it had
with the "public purpose" dictum in Bradley, the Court quickly incorporated this dictum into its
Public Use Clause cases with little discussion. See, e.g., United States ex rel. TVA v. Welch, 327
U.S. 546, 552, 90 L. Ed. 843, 66 S. Ct. 715 (1946); Old Dominion Land Co. v. United States, 269
U.S. 55, 66, 70 L. Ed. 162, 46 S. Ct. 39 (1925).
There is no justification, however, for affording almost insurmountable deference to
legislative conclusions that a use serves a "public use." To begin with, a court owes no deference
to a legislature's judgment concerning the quintessentially legal question of whether the
government owns, or the public has a legal right to use, the taken property. Even under the
"public purpose" interpretation, moreover, it is most implausible that the Framers intended to
defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express
provisions of the Bill of Rights. We would not defer to a legislature's determination of the
various circumstances that establish, for example, when a search of a home would be reasonable,
see, e.g., Payton v. New York, 445 U.S. 573, 589-590, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980),
or when a convicted double-murderer may be shackled during a sentencing proceeding without
on-the-record findings, see Deck v. Missouri, 544 U.S. 622, 161 L. Ed. 2d 953, 125 S. Ct. 2007
(2005), or when state law creates a property interest protected by the Due Process Clause, see,
e.g., Castle Rock v. Gonzales, post, at 756-758, 162 L. Ed. 2d 658, 125 S. Ct. 2796; Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 576, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972);
Goldberg v. Kelly, 397 U.S. 254, 262-263, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970).
Still worse, it is backwards to adopt a searching standard of constitutional review for
nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while
deferring to the legislature's determination as to what constitutes a public use when it exercises
the power of eminent domain, and thereby invades individuals' traditional rights in real property.
The Court has elsewhere recognized "the overriding respect for the sanctity of the home that has
been embedded in our traditions since the origins of the Republic," Payton, supra, at 601, 63 L.
Ed. 2d 639, 100 S. Ct. 1371, when the issue is only whether the government may search a home.
Yet today the Court tells us that we are not to "second-guess the City's considered judgments,"
ante, at 488, 162 L. Ed. 2d, at 457, when the issue is, instead, whether the government may take
the infinitely more intrusive step of tearing down petitioners' homes. Something has gone
seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from
the government in their homes, the homes themselves are not. Once one accepts, as the Court at
least nominally does, that the Public Use Clause is a limit on the eminent domain power of the
Federal Government and the States, there is no justification for the almost complete deference it
grants to legislatures as to what satisfies it.
C
These two misguided lines of precedent converged in Berman v. Parker, 348 U.S. 26, 99
L. Ed. 27, 75 S. Ct. 98 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 81 L. Ed.
2d 186, 104 S. Ct. 2321 (1984). Relying on those lines of cases, the Court in Berman and
Midkiff upheld condemnations for the purposes of slum clearance and land redistribution,
respectively. "Subject to specific constitutional limitations," Berman proclaimed, "when the
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legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In
such cases the legislature, not the judiciary, is the main guardian of the public needs to be served
by social legislation." 348 U.S., at 32, 99 L. Ed. 27, 75 S. Ct. 98. That reasoning was question
begging, since the question to be decided was whether the "specific constitutional limitation" of
the Public Use Clause prevented the taking of the appellant's (concededly "nonblighted")
department store. Id., at 31, 34, 99 L. Ed. 27, 75 S. Ct. 98. Berman also appeared to reason that
any exercise by Congress of an enumerated power (in this case, its plenary power over the
District of Columbia) was per se a "public use" under the Fifth Amendment. Id., at 33, 99 L. Ed.
27, 75 S. Ct. 98. But the very point of the Public Use Clause is to limit that power.
More fundamentally, Berman and Midkiff erred by equating the eminent domain power
with the police power of States. Traditional uses of that regulatory power, such as the power to
abate a nuisance, required no compensation whatsoever, see Mugler v. Kansas, 123 U.S. 623,
668-669, 31 L. Ed. 205, 8 S. Ct. 273 (1887), in sharp contrast to the takings power, which has
always required compensation. The question whether the State can take property using the
power of eminent domain is therefore distinct from the question whether it can regulate property
pursuant to the police power. In Berman, for example, if the slums at issue were truly
"blighted," then state nuisance law, not the power of eminent domain, would provide the
appropriate remedy. To construe the Public Use Clause to overlap with the States' police power
conflates these two categories.
The "public purpose" test applied by Berman and Midkiff also cannot be applied in
principled manner. "When we depart from the natural import of the term 'public use,' and
substitute for the simple idea of a public possession and occupation, that of public utility, public
interest, common benefit, general advantage or convenience . . . we are afloat without any certain
principle to guide us." Bloodgood v. Mohawk & Hudson R. Co., 18 Wend. 9, 60-61 (NY 1837)
(opinion of Tracy, Sen.). Once one permits takings for public purposes in addition to public
uses, no coherent principle limits what could constitute a valid public use-at least, none beyond
Justice O'Connor's (entirely proper) appeal to the text of the Constitution itself. I share the
Court's skepticism about a public use standard that requires courts to second-guess the policy
wisdom of public works projects. The "public purpose" standard this Court has adopted,
however, demands the use of such judgment, for the Court concedes that the Public Use Clause
would forbid a purely private taking. It is difficult to imagine how a court could find that a
taking was purely private except by determining that the taking did not, in fact, rationally
advance the public interest. The Court is therefore wrong to criticize the "actual use" test as
"difficult to administer." Ante, at 479, 162 L. Ed. 2d, at 451. It is far easier to analyze whether
the government owns or the public has a legal right to use the taken property than to ask whether
the taking has a "purely private purpose"—unless the Court means to eliminate public use
scrutiny of takings entirely. Obliterating a provision of the Constitution, of course, guarantees
that it will not be misapplied.
For all these reasons, I would revisit our Public Use Clause cases and consider returning
to the original meaning of the Public Use Clause: that the government may take property only if
it actually uses or gives the public a legal right to use the property.
IV
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The consequences of today's decision are not difficult to predict, and promise to be
harmful. So-called "urban renewal" programs provide some compensation for the properties
they take, but no compensation is possible for the subjective value of these lands to the
individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing
the government to take property solely for public purposes is bad enough, but extending the
concept of public purpose to encompass any economically beneficial goal guarantees that these
losses will fall disproportionately on poor communities. Those communities are not only
systematically less likely to put their lands to the highest and best social use, but are also the
least politically powerful. If ever there were justification for intrusive judicial review of
constitutional provisions that protect "discrete and insular minorities," United States v. Carolene
Products Co., 304 U.S. 144, 152, n. 4, 82 L. Ed. 1234, 58 S. Ct. 778 (1938), surely that principle
would apply with great force to the powerless groups and individuals the Public Use Clause
protects. The deferential standard this Court has adopted for the Public Use Clause is therefore
deeply perverse. It encourages "those citizens with disproportionate influence and power in the
political process, including large corporations and development firms," to victimize the weak.
Ante, at 505, 162 L. Ed. 2d, at 468 (O'Connor, J., dissenting).
Those incentives have made the legacy of this Court's "public purpose" test an unhappy
one. In the 1950's, no doubt emboldened in part by the expansive understanding of "public use"
this Court adopted in Berman, cities "rushed to draw plans" for downtown development. B.
Frieden & L. Sagalyn, Downtown, Inc. How America Rebuilds Cities 17 (1989). "Of all the
families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race
was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of
whites had incomes low enough to qualify for public housing, which, however, was seldom
available to them." Id., at 28. Public works projects in the 1950's and 1960's destroyed
predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at
28-29. In 1981, urban planners in Detroit, Michigan, uprooted the largely "lower-income and
elderly" Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie,
Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated
with the displacement of blacks; "[i]n cities across the country, urban renewal came to be known
as 'Negro removal.'" Pritchett, The "Public Menace" of Blight: Urban Renewal and the Private
Uses of Eminent Domain, 21 Yale L. & Pol'y Rev. 1, 47 (2003). Over 97 percent of the
individuals forcibly removed from their homes by the "slum-clearance" project upheld by this
Court in Berman were black. 348 U.S., at 30, 99 L. Ed. 27, 75 S. Ct. 98. Regrettably, the
predictable consequence of the Court's decision will be to exacerbate these effects.
***
The Court relies almost exclusively on this Court's prior cases to derive today's farreaching, and dangerous, result. But the principles this Court should employ to dispose of this
case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of
reclamation laws. When faced with a clash of constitutional principle and a line of unreasoned
cases wholly divorced from the text, history, and structure of our founding document, we should
not hesitate to resolve the tension in favor of the Constitution's original meaning. For the reasons
I have given, and for the reasons given in Justice O'Connor's dissent, the conflict of principle
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raised by this boundless use of the eminent domain power should be resolved in petitioners'
favor. I would reverse the judgment of the Connecticut Supreme Court.
60