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The power of eminent domain is granted to governmental bodies — federal, state and local — by the Fifth Amendment to the U.S. Constitution, under the simple phrase, “…nor shall private property be taken for public use, without just compensation.” In simple terms, the government can take privately owned land, as long as the land will be used by the public and the owner is paid a fair price for the land, what the amendment calls, “just compensation.”
Typically, governments exercised their power of eminent domain to acquire property for facilities clearly intended for use by the public, like schools, freeways or bridges. While such eminent domain actions are often viewed as distasteful, they are generally accepted because of their overall benefit to the public.
In the case of Kelo v. City of New London, 545 U.S. 469 (2005), the U.S. Supreme Court changed the interpretation of the government’s power of eminent domain by condoning the new trend among cities to use eminent domain to acquire land for the redevelopment or revitalization of depressed areas. In other words, the use of eminent domain for economic, rather than public purposes.
Review the Attached Case and Write a Forum Post Answering the Following Questions:
What do you think of the expansion of Eminent Domain in this manner? What property rights, if any, do you believe are violated? Can you think of a good balancing test for governments to use when taking property via eminent domain to ensure fairness?
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SUSETTE KELO, et al., Petitioners v. CITY OF NEW LONDON, CONNECTICUT,
et al.
No. 04-108
SUPREME COURT OF THE UNITED STATES
545 U.S. 469; 125 S. Ct. 2655; 162 L. Ed. 2d 439; 2005 U.S. LEXIS 5011; 10 A.L.R.
Fed. 2d 733; 35 ELR 20134; 60 ERC (BNA) 1769; 18 Fla. L. Weekly Fed. S 437
February 22, 2005, Argued
June 23, 2005, Decided
SUBSEQUENT HISTORY: US Supreme Court rehearing denied by Kelo v. New London, 545 U.S. 1158, 126 S. Ct.
24, 162 L. Ed. 2d 922, 2005 U.S. LEXIS 5331 (U.S., Aug. 22, 2005)
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT.
Kelo v. City of New London, 268 Conn. 1, 843 A.2d 500, 2004 Conn. LEXIS 54 (2004)
DISPOSITION: Affirmed.
CASE SUMMARY:
PROCEDURAL POSTURE: Respondent development agent, on behalf of respondent city, initiated condemnation
proceedings with respect to land owned by petitioners, nine property owners. The trial court prohibited the taking of
certain properties, but the Connecticut Supreme Court reversed that finding and upheld all of the takings. The owners
petitioned for a writ of certiorari, which the United States Supreme Court granted.
OVERVIEW: The city approved a development plan that had been submitted by the development agent. The plan
called for construction of a waterfront hotel, restaurants, retail stores, residences, and office space; also, portions of the
development area were to be used for marinas and for support services. The city authorized the agent to purchase
property in the development area or to acquire it by eminent domain. The agent purchased most of the required
property, but the nine owners refused to sell. The Court found that the development plan served a public purpose and
therefore constituted a public use under the Takings Clause of the Fifth Amendment. The plan was not adopted to
benefit a particular class of identifiable individuals. Although the owners’ properties were not blighted, the city’s
determination that a program of economic rejuvenation was justified was entitled to deference. There was no basis for
exempting economic development from the broad definition of “public purpose.” The Court declined to require a
reasonable certainty that the expected public benefits would accrue, nor was it proper to second-guess the city’s
determination of the boundary of the development area.
OUTCOME: The judgment of the Connecticut Supreme Court was affirmed.
Page 2
545 U.S. 469, *; 125 S. Ct. 2655, **;
162 L. Ed. 2d 439, ***; 2005 U.S. LEXIS 5011
CORE TERMS: public use, public purpose, eminent domain, economic development, parcel, development plan,
private party, condemnation, private property, private use, neighborhood, planning, public benefits, incidental,
developer, ownership, blighted, urban, power of eminent domain, original meaning, redevelopment, deference, mining,
police power, irrigation, condemned, harmful, space, general public, right to use
LexisNexis(R) Headnotes
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
[HN1] See U.S. Const. amend. 5.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Constitutional Law > Bill of Rights > State Application
[HN2] The Takings Clause of the Fifth Amendment is made applicable to the states by the Fourteenth Amendment.
Civil Procedure > Eminent Domain Proceedings > General Overview
Public Health & Welfare Law > Social Services > Economic Development
Real Property Law > Inverse Condemnation > General Overview
[HN3] Conn. Gen. Stat. § 8-186 et seq. (2005) expresses a legislative determination that the taking of land, even
developed land, as part of an economic development project is a “public use” and in the “public interest.”
Civil Procedure > Eminent Domain Proceedings > General Overview
Real Property Law > Eminent Domain Proceedings > Constitutional Limits & Rights > Just Compensation
Transportation Law > Rail Transportation > Lands & Rights of Way
[HN4] On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose
of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally
clear that a state may transfer property from one private party to another if future “use by the public” is the purpose of
the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example.
Environmental Law > Zoning & Land Use > Eminent Domain Proceedings
Real Property Law > Eminent Domain Proceedings > General Overview
Real Property Law > Inverse Condemnation > General Overview
[HN5] A city will no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on
a particular private party. A purely private taking cannot withstand the scrutiny of the public use requirement; it serves
no legitimate purpose of government and will thus be void. Nor will a city be allowed to take property under the mere
pretext of a public purpose, when its actual purpose was to bestow a private benefit.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Real Property Law > Eminent Domain Proceedings > Constitutional Limits & Rights > Public Use
[HN6] The United States Supreme Court has long ago rejected any literal requirement that condemned property be put
into use for the general public. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as
the proper definition of public use, that narrow view has steadily eroded over time. Not only is the “use by the public”
test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?), but it
has proved to be impractical given the diverse and always evolving needs of society. Accordingly, when the Court
began applying the Fifth Amendment to the states at the close of the 19th century, it embraced the broader and more
natural interpretation of public use as “public purpose.”
Civil Procedure > Eminent Domain Proceedings > General Overview
Governments > Public Improvements > Community Redevelopment
Real Property Law > Eminent Domain Proceedings > Constitutional Limits & Rights > Public Use
[HN7] With respect to the “public purpose” requirement for condemned property, without exception, the United States
Supreme Court’s cases have defined that concept broadly, reflecting the Court’s longstanding policy of deference to
Page 3
545 U.S. 469, *; 125 S. Ct. 2655, **;
162 L. Ed. 2d 439, ***; 2005 U.S. LEXIS 5011
legislative judgments in this field.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Real Property Law > Eminent Domain Proceedings > General Overview
[HN8] Community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis–lot by lot,
building by building.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Real Property Law > Eminent Domain Proceedings > General Overview
[HN9] The United States Supreme Court does not sit to determine whether a particular housing project is or is not
desirable. The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as
physical, aesthetic as well as monetary. It is within the power of a legislature to determine that a community should be
beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. If those who govern
a city decide that it should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the
way.
Civil Procedure > Appeals > Case Transfers
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Real Property Law > Eminent Domain Proceedings > General Overview
[HN10] The United States Supreme Court has rejected the contention that the mere fact that a state immediately
transfers properties to private individuals upon condemnation somehow diminishes the public character of the taking. It
is only the taking’s purpose, and not its mechanics, that matters in determining public use.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Real Property Law > Eminent Domain Proceedings > General Overview
[HN11] With respect to takings, viewed as a whole, United States Supreme Court jurisprudence has recognized that the
needs of society have varied between different parts of the Nation, just as they have evolved over time in response to
changed circumstances. The Court’s earliest cases in particular have embodied a strong theme of federalism,
emphasizing the “great respect” that the Court owes to state legislatures and state courts in discerning local public
needs. These needs are likely to vary depending on a state’s resources, the capacity of the soil, the relative importance of
industries to the general public welfare, and the long-established methods and habits of the people. For more than a
century, the Court’s public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of
affording legislatures broad latitude in determining what public needs justify the use of the takings power.
Energy & Utilities Law > Mining Industry > General Overview
Public Health & Welfare Law > Social Services > Economic Development
Real Property Law > Eminent Domain Proceedings > General Overview
[HN12] For purposes of the Fifth Amendment’s Takings Clause, promoting economic development is a traditional and
long accepted function of government. There is, moreover, no principled way of distinguishing economic development
from the other public purposes that the United States Supreme Court has recognized.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Public Health & Welfare Law > Social Services > Economic Development
Real Property Law > Eminent Domain Proceedings > Constitutional Limits & Rights > Public Use
[HN13] For purposes of the Fifth Amendment’s Takings Clause, the government’s pursuit of a public purpose will often
benefit individual private parties.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Real Property Law > Eminent Domain Proceedings > General Overview
[HN14] For purposes of the Fifth Amendment’s Takings Clause, the public end may be as well or better served through
an agency of private enterprise than through a department of government–or so the Congress might conclude. The
Page 4
545 U.S. 469, *; 125 S. Ct. 2655, **;
162 L. Ed. 2d 439, ***; 2005 U.S. LEXIS 5011
United States Supreme Court cannot say that public ownership is the sole method of promoting the public purposes of
community redevelopment projects.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Environmental Law > Hazardous Wastes & Toxic Substances > Pesticides
[HN15] By focusing on a property’s future use, as opposed to its past use, the United States Supreme Court’s cases are
faithful to the text of the Takings Clause. U.S. Const. amend. 5.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Real Property Law > Eminent Domain Proceedings > General Overview
[HN16] The intimation that a “public purpose” may not be achieved by the action of private parties confuses the
purpose of a taking with its mechanics, a mistake the United States Supreme Court has warned of.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
[HN17] The Takings Clause largely operates as a conditional limitation, permitting the government to do what it wants
so long as it pays the charge.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Real Property Law > Eminent Domain Proceedings > General Overview
[HN18] With respect to the takings power, it is not sufficient to urge that the power may be abused, for such is the
nature of all power–such is the tendency of every human institution: and, it might as fairly be said, that the power of
taxation, which is only circumscribed by the discretion of the Body, in which it is vested, ought not to be granted,
because the Legislature, disregarding its true objects, might, for visionary and useless projects, impose a tax to the
amount of nineteen shillings in the pound. A court must be content to limit power where it can, and where it cannot,
consistently with its use, the court must be content to repose a salutory confidence.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Real Property Law > Eminent Domain Proceedings > General Overview
[HN19] When the legislature’s purpose is legitimate and its means are not irrational, the United States Supreme Court’s
cases make clear that empirical debates over the wisdom of takings–no less than debates over the wisdom of other
kinds of socioeconomic legislation–are not to be carried out in the federal courts.
Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Takings
Real Property Law > Eminent Domain Proceedings > General Overview
[HN20] It is not for the courts in a takings review to oversee the choice of a boundary line nor to sit in review on the
size of a particular project area. Once the question of the public purpose has been decided, the amount and character of
land to be taken for the project and the need for a particular tract to complete an integrated plan rests in the discretion of
the legislative branch.
DECISION: [***439] Proposed disposition of property “to increase tax and other revenues, and to revitalize . . .
economically distressed city” held to qualify as “public use” within meaning of takings clause of Federal Constitution’s
Fifth Amendment.
SUMMARY: After the state of Connecticut authorized two bond issues–one to support the planning activities of a
private nonprofit development corporation that had been established to assist the city of New London in planning
economic development, and the other to support creation of a state park in the city’s waterfront area–a pharmaceutical
company announced that it would build a $300 million research facility near the park.
Page 5
545 U.S. 469, *; 125 S. Ct. 2655, **;
162 L. Ed. 2d 439, ***439; 2005 U.S. LEXIS 5011
Subsequently, the city approved a development plan that (1) according to the Connecticut Supreme Court, was
“projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically
distressed city, including its downtown and waterfront areas”; and (2) involved land that (a) included the state park and
approximately 115 privately owned properties, (b) was adjacent to the pharmaceutical company’s facility, and (c) had
been designated for a hotel, restaurants, retail and office spaces, marinas for both recreational and commercial uses, a
pedestrian riverwalk, approximately 80 new residences, a museum, and parking spaces.
When the city, through the development agency, sought to use the power of eminent domain to acquire some of the
property in the development area, nine owners of 15 of the privately owned properties in the area–none of which
properties were alleged to be blighted or otherwise in poor condition–brought, in the New London Superior Court, an
action including claims that the taking of the owners’ properties would violate the provision, in the Federal
Constitution’s Fifth Amendment, that a government could take [***440] private property for only “public use.” The
Superior Court (1) granted a permanent restraining order prohibiting the taking of the some of the properties; but (2)
denied relief as to others.
On appeal, the Connecticut Supreme Court, in affirming in part and reversing in part, held that (1) the “economic
development” in question qualified as a valid public use under federal and state law; and (2) all of the city’s proposed
takings were valid (268 Conn. 1, 843 A.2d 500).
On certiorari, the United States Supreme Court affirmed. In an opinion by Stevens, J., joined by Kennedy, Souter,
Ginsburg, and Breyer, JJ., it was held that the city’s proposed disposition of property under the development plan
qualified as a “public use” under the Fifth Amendment, so that the city properly could use the power of eminent domain
to acquire the unwilling sellers’ property, as:
(1) The city had carefully formulated a plan that it believed would provide appreciable benefits to the community,
including–but by no means limited to–new jobs and increased tax revenue.
(2) As with other exercises in urban planning and development, the city was endeavoring to coordinate a variety of
commercial, residential, and recreational uses of land, with the hope that these uses would form a whole greater than the
sum of its parts.
(3) To effectuate the plan, the city had invoked a state statute that specifically authorized the use of eminent domain to
promote economic development.
(4) Given the comprehensive character of the plan, the thorough deliberation that had preceded the plan’s adoption, and
the limited scope of the Supreme Court’s review, it was appropriate for the court to resolve the challenges of the
individual private owners, not on a piecemeal basis, but rather in light of the entire plan.
Kennedy, J., concurring, expressed the view that (1) a court applying rational-basis review under the Fifth
Amendment’s public use clause should strike down a taking that, by a clear showing, is intended to favor a particular
private party, with only incidental or pretextual public benefits; (2) where the purpose of a taking is economic
development and that development is to be carried out by private parties or private parties will benefit, a court must
decide if the stated public purpose is incidental to the benefits to private parties; and (3) a court confronted with a
plausible accusation of impermissible favoritism to private parties should review the record to see if the objection has
merit, though with the presumption that the government’s actions were reasonable and intended to serve a public
purpose.
O’Connor, J., joined by Rehnquist, Ch. J., and Scalia and Thomas, JJ., dissenting, expressed the view that (1) as a result
of Supreme Court’s opinion in the case at hand, under the banner of economic development, all private property was
vulnerable to being taken and transferred to another private owner, so long as the property might be “upgraded”–given
to an owner who would use it in a way that the legislature deemed more beneficial to the public–in the process; and (2)
the reasoning, expressed in the court’s [***441] opinion, that the incidental public benefits resulting from the
Page 6
545 U.S. 469, *; 125 S. Ct. 2655, **;
162 L. Ed. 2d 439, ***441; 2005 U.S. LEXIS 5011
subsequent ordinary use of private property rendered economic-development takings “for public use” (a) washed out
any distinction between private and public use of property, and (b) thereby effectively deleted the words “for public
use” from the Fifth Amendment.
Thomas, J., dissenting, expressed the view that (1) if such economic-development takings as the one in question were
for a public use, than (a) any taking was for public use, and (b) the Supreme Court had erased the public use clause from
the Constitution; and (2) the case at hand was one of a string of the court’s cases that (a) had strayed from the public use
clause’s original meaning, and (b) ought to be reconsidered.
LAWYERS’ EDITION HEADNOTES:
EMINENT DOMAIN §33
— public use — economically distressed city — increases in jobs and revenue — revitalization
Headnote: [1A][1B]
A city’s proposed disposition of some real property under a development plan that was “projected to create in excess of
1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown
and waterfront areas” qualified as a “public use” within the meaning of the takings clause of the Federal Constitut …
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