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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