Kelo Decision Research Articles

Legislatively Revising Kelo V. City of New London: Eminent Domain, Federalism, and Congressional Powers

Legislatively Revising Kelo V. City of New London: Eminent Domain, Federalism, and Congressional Powers

DoesKeloTrample on Fundamental Property Rights?

I strongly feel the Kelo decision came out as it should have. However, many people around the country feel that a fundamental right has been trampled upon. Brilliant minds can debate the pros and cons of the decision and its affect on land use law. I have nothing to add to the intricacies of land use law that has not already been the subject of dueling editorials. However, two things come to mind about the opinion, held by many citizens, that the Kelo decision attacks fundamental property rights.

Connecticut Planners Weigh in: Eminent Domain is Important Land Use Tool

The day after the Kelo decision, the Hartford Courant, Connecticut's only statewide newspaper, ran a two-thirds page photo of a saddened Suzette Kelo on her front porch on its front page with the headline “5-4 for the Taking.” The imagery, and the lead paragraphs describing the Supreme Court's decision, contributed greatly to the emotional response by many people in Connecticut and around the country. Dozens of opinion letters and commentary by local residents, politicians, land use lawyers, and planners argued both sides of the case. The editorial commentary continues to this day.

Rumored Death of Property Rights is Greatly Exaggerated

The Supreme Court's Kelo decision blew open, rather than closed, the debate on the use of eminent domain for economic development purposes. It touched a raw nerve for most people about the boundaries between property rights of individuals and the authority of government. Despite the fury that erupted following the decision, the Court's opinion preserves the opportunity for municipalities to contribute to the national discussion about the legal, policy, and personal aspects of eminent domain.

What's Yours Can Be Mine: Are There Any Private Takings after <em>Kelo v. City of New London</em>?

The Supreme Court's decision in Kelo v. City of New London, (1) upholding the of eminent domain to take private property from one owner and give it to another in order to promote economic development, angered many. (2) Some felt that this decision meant the use stipulation for the of eminent domain no longer had any meaning and that the Court was now prepared to endorse any taking for any reason, so long as compensation was paid. Did Kelo in fact signal the death knell for the use doctrine? If yes, this is not the first time that property rights advocates would have made this claim. Following decisions such as Hawaii Housing Authority v. Midkiff (3) and Poletown Neighborhood Council v. City of Detroit (4) similar laments were heard. (5) This Article will argue that Kelo did not render toothless the public stipulation on eminent domain. Moreover, it will also argue that the decision did not really represent any major change in the law as it had evolved in the last 20, if not 100, or so years. The real importance of the Kelo decision lies in its effort to articulate a new test already emerging in state law regarding what separates a private from a public taking. This distinction centers in on the role of the comprehensive plan as a tool for demarcating the boundary between a purely private taking and one promoting a public use. The article first presents a jurisprudential history of the public doctrine at the federal and state level. The reason for this discussion is twofold: first, to show that economic development was already an accepted goal of eminent domain even prior to Kelo and, second, to show how previous efforts to draw a bright-line rule distinguishing a valid public from a private taking had failed. The second part of the Article examines the Supreme Court's Kelo opinion, concentrating on how it discussed the role of comprehensive plans as a possible means of distinguishing public from private takings. Finally, the third part of the article draws upon three pre-Kelo state court opinions to demonstrate two points. One point is that comprehensive plans had already been used in an effort to clarify when a taking is for a public as opposed to a private use. The other point is that even in jurisdictions that recognize a broad authority to eminent domain for economic development purposes, it is still possible to find that some takings are not valid in that they serve private interests. This is the case even when a comprehensive plan is in place. Overall, this article argues that while the Court in Kelo hinted at a new test to distinguish valid public from invalid private uses of eminent domain, and even though the presence of a comprehensive plan may not ultimately be a satisfactory means to distinguish the two types of takings, nonetheless, the decision does not mean that the public doctrine is dead. I. DISTINGUISHING PUBLIC FROM PRIVATE TAKINGS The jurisprudential road to City of New London v. Kelo is punctuated by three characteristics when it comes to the public doctrine. First, the term use is ambiguous, yielding many competing definitions. Second, previous efforts to forge a precise distinction or fashion a bright-line rule between a taking that is for a valid public versus one that is for a private benefit have failed. Third, use is an elastic concept, yielding over time to an ever broader array of activities which may be undertaken or facilitated by eminent domain. Due to these three characteristics, a brief history of the public doctrine reveals that, even prior to Kelo, the of eminent domain for economic development purposes was already well accepted and permitted. A. Competing Visions of Public Use 1. The Broad and Narrow Public Use Doctrines The use doctrine can be described as an essentially contested concept whereby its meaning has been subject to debate over time. …