Exclusionary Eminent Domain

Abstract

This article explores the phenomenon of “exclusionary eminent domain”—the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality—and assesses the case for a new state constitutional law doctrine limiting exclusionary eminent domain. An exclusionary eminent domain doctrine would be rooted in the public use clauses of state constitutions, and would result in the application of heightened review to the condemnations of low-income housing in a locality or neighborhood that otherwise has less than its fair share of such housing. An exclusionary eminent domain doctrine would promote full cost internalization by condemning localities, and hence deter excessive condemnations of low-income households and tend to reduce social costs from concentrated poverty.