Eminent Domain in the Aftermath of Kelo: A Research Guide   Tags: constitutional_law, property, real_estate  

Kelo v. City of New London, 545 U.S. 469 (2005), was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another to further economic development. The case arose from the condemnation by New London, Connecticut, of privately owned real property so that it could be used as part of a comprehensive redevelopment plan. The Court held in a 5-4 decision that the general benefits a community enjoyed from economic growth qualified such redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment.

The decision was widely criticized by American politicians and the general public. Many members of the general public saw the outcome as a gross violation of property rights and as a misinterpretation of the Fifth Amendment whose consequence would be to benefit large corporations at the expense of individual homeowners and local communities. Many have felt that in essence, through Kelo the U.S. Supreme Court removed federal constitutional protection from homeowners and threw the issue back to the states to decide if any state-level protection remains. This research guide collects and organizes legal materials that discuss current eminent domain law and the reaction of the states at the legislative level.

To view the full text of this case, courtesy of Findlaw, go to the following link: http://laws.findlaw.com/us/000/04-108.html

Governments, both state and federal, have the right to take private property for public use, provided that just compensation is paid. The Fifth Amendment to the United States Constitution sets the legal standard for these propositions; this power is known as the right of eminent domain. In the landmark decision, Kelo v. City of New London, the Supreme Court held that the taking of a citizen's private property for economic development qualified as a public use within the meaning of the Fifth Amendment. The ruling has extended the government's power of eminent domain to unprecedented areas.

In Kelo v. City of New London, the U.S. Supreme Court considered whether a city’s decision to take private property solely for the purpose of economic development satisfies the “public use” requirement of the Fifth Amendment. Kelo involved 90 acres of privately-owned land on which the City of New London, Connecticut wanted to develop for the stated purpose of “revitalizing an economically distressed city, including its downtown and waterfront areas.” The City estimated that the development would create “in excess of 1,000 jobs” and increase tax and other revenues. The City purchased most of the property earmarked for the project from willing sellers and then initiated condemnation proceedings against those who refused to sell. Those owners sued, claiming, among other things, that the government’s seizure of their properties violated the “public use” restriction in the Fifth Amendment’s Takings Clause.

Writing for the majority, Justice Stevens concluded that a “public purpose” such as creating jobs in a depressed city can satisfy the Fifth Amendment. No prior decision by the U.S. Supreme Court has authorized taking of property by eminent domain solely for economic development purposes. Pursuant to Kelo, there is no longer any need for an area to be declared “blighted” before it can be taken pursuant to an economic development plan so long as the plan is deliberative and the case is made that the taking is for the public’s purpose.

In a scathing dissent, retired Supreme Court Justice Sandra Day O’Connor voiced her dismay with the Court’s Kelo decision stating that the ruling could be used to replace “any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

Congress has responded to the Kelo decision by introducing a number of new bills aimed at curtailing the reach of Kelo. State legislatures also have responded with new legislation, moratoriums on eminent domain, and proposals to amend state constitutions to preclude takings such as the one in Kelo.

Businesses have also has reacted. The nation’s ninth largest bank, the North Carolina based BB&T, announced that it will refuse to lend money to commercial developers who plan to build on land seized from private citizens in protest against the government’s power to make compulsory purchases of land.

Kathryn Darden, as of Spring 2007, is a 3rd-year, part-time student at the Georgia State University College of Law. This guide was developed for Advanced Legal Research, taught by Professor Nancy Johnson, and was last updated April 10, 2007.

In Kelo, the U.S. Supreme Court ruled that economic development is a valid public purpose for which private property can be taken, just as it can be taken for already recognized public purposes such as roads, bridges, and public buildings. The reaction to the removal of federal protection of property rights has had an unprecedented reaction. This annotation presents primary and secondary research sources regarding the change in eminent domain law in the aftermath of the Kelo decision.

Bibliographies on this Web site were prepared for educational purposes by law students as part of Nancy P. Johnson's Advanced Legal Research course. The Law Library does not guarantee the accuracy, completeness, or usefulness of any information provided. Thorough legal research requires a researcher to update materials from date of publication; please note the semester and year the bibliography was prepared.

This annotation is not comprehensive and in no way should be understood to constitute legal advice. This annotation is intended to be a guide only and potential litigants should seek legal advice from an attorney or the appropriate state agency before relying on information provided here.

The author last updated this material Spring of 2007. Legal materials are constantly updated and news laws frequently passed. Users of this guide should therefore Keycite or Shepardize case law and statutes to ensure they are still good law. In addition, secondary sources frequently update annotations and add new ones, so users should verify they are using the most current edition of the publication and check the pocket parts.

Also, users should not rely on the author’s interpretation of cases, nor the authors referenced in treatises and journals, but read each case before citing it.

The author hopes this guide will provide an informative starting point for the user’s own research. The law library and its reference librarians will be an excellent source to determine where to proceed from there.