Much press has been devoted recently to governmental takings of private
property under its eminent domain power. Fuel for the debate comes from
the United States Supreme Court's June, 2005 decision in Kelo v. City
of New London, 2005 WL 1469529 (2005).
The Fifth and Fourteenth Amendments to the United States Constitution allow
federal or state governments to take private property if the taking is
for a "public use." "Just compensation" must be paid
to the owner of property that is taken. The Kelo decision generates much
controversy because it broadens considerably the concept of "public
use" to extend far beyond traditionally recognized public uses such
as road widening projects, railroads, highways, or water reservoirs. Now,
redevelopment of existing property to more economically beneficial uses
sits firmly among the "public uses" that will initiate governmental
takings. In Kelo, the United States Supreme Court found a "public
use" in the City of New London's plan to condemn private property,
and develop it for office space, a parking lot, or other retail development.
The Supreme Court held that states are best able to judge the wisdom of
"public uses" that precipitate governmental takings. Though
eminent domain laws vary from state to state, the Supreme Court has gradually
chipped away at the 5th Amendment's "public use" requirement
until it has become, essentially, a "public purpose" requirement.
Now, land can be taken from one private owner and given to another without
any requirement that the taking is for something the public can and will
use. "Economic development" is now soundly among the list of
reasons the government may give to take property. Justice O'Connor
wrote, in her dissenting opinion, "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."
The line between public and private use is more blurred with the Kelo decision.
Private property may be obligated now to give way to large corporate interests
which purport to have a better way to use the land, make it more attractive,
or stimulate business and economic activity with it.
Domina Law Group's aggressive trial and litigation practice champions
Americans' private property rights. The firm has represented numerous
clients facing eminent domain proceedings. Despite the Kelo decision,
landowners can and should mount substantial challenges to governmental
entities' claims that property may be taken for economic reasons.
"Public use" requirements must continue to be enforced because
purely private takings remain unconstitutional. So do private takings
accomplished under the pretext of a public use, and discriminatory takings
that benefit one class of persons over another.
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