Public Use in a Post-KeloWorld

Abstract

The aftermath of Kelo gives rise to urgent land use issues, both theoretical and historical. On the former, I argue that the analysts should be aware of the close and positive connection between restrictive land use policies on the one hand and local governments’ willingness to condemn parcels for private development on the other. The inability to overcome local opposition to private development forces developers to get, in essence, pre-acquisition approval through public condemnation. One way, therefore, to ease the pressure on public use is to retreat from aggressive land use regulation to a scheme that more closely approximates that of the common law rules on nuisance and restrictive covenants. However, this outcome will be hard to achieve since local systems of voting give little weight to the interest of potential buyers who live outside the governance area. Historically, this opportunity was lost when the United States Supreme Court in Berman v. Parker distanced itself from the thoughtful decision of Judge Prettyman below in Schneider v. District of Columbia, which sought to cabin in the ends for which the eminent domain power could be used, even if it gave too much deference to local governments on any means/ends connections.