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US Supreme Court upholds eminent domain for private redevelopment

23. June 2005 • Murph
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The United States Supreme Court today ruled in favor of the City of New London, CT’s power to use eminent domain to take (with just compensation) private property from one owner in order to clear the way for private redevelopment. The majority opinion was written by Justice Stevens, with “stinging” dissent by O’Conner, Scalia, Rehnquist, and Thomas.

The key distinction in the case was whether a local government’s power of eminent domain could be used to acquire land for a public purpose that was not a public use – with “slum” clearance or “economic development” often used as “public purposes” that involve delivering land to private developers; taking property for a “public use”, such as a street, school, police station or other publicly held building, is not questioned.

This ruling is the opposite of one made last summer by the Michigan Supreme Court last summer in County of Wayne v. Hathcock, in which that court declared only public uses to be valid results of eminent domain actions, overturning and criticizing its own 1981 Poletown ruling.



  1. Standard disclaimer: IANAL.

    I’m curious how the Michigan Hathcock decision interacts with the US Kelo decision. I see two options:

    1. Kelo overturns Hathcock.

    2. The Michigan State Constitution, as interpreted in Hathcock, provides stricter limits on uses of eminent domain than does the US Constitution, as interpreted in Kelo.
       —Murph.    Jun. 23 '05 - 03:08PM    #
  2. I believe (and hope) that Hathcock was based on the Michigan constitution and should not be affected by Kelo.

    And, by the way, my understanding is this—governments had already been able to use eminent domain to acquire land for public use (roads, parks, etc) and ALSO to clear ‘blighted’ areas. But now, it seems, even a finding of ‘blight’ is no longer needed—it is permissible for governments to condemn property whenever they can can be plausibly argue that doing so will provide a public benefit—where ‘public benefit’ may be nothing other than a new different private use of the property that will generate more economic activity and tax revenue than the current use. Which is to say just about any time they feel like it (or any time a big developer has enough power & influence).

    That said, there is nothing that prevents states from having more restrictive versions of eminent domain (the Kelo majority opinion makes this point explicitly, in fact).
       —mw    Jun. 23 '05 - 03:38PM    #
  3. mw,

    I hadn’t read through the Kelo opinion entirely – if it allows more restrictive state versions, then, yes, Michigan requires public use, as Hathcock was based on the Michigan Constitution.

    I had thought, though, that “blight” removal was the quintessential example of “public purpose” that other exercises for public purpose were based in.

    Ah, well. We’ll see if Mr. Stephen K Postema, City Attorney, answers my e-mail. He ought to know the answer.
       —Murph.    Jun. 23 '05 - 03:52PM    #
  4. Taking a quick look at the Michigan decision, my best guess is that it is impacted by today’s rulling. (i’ll save the long boring fed. cts. lecture). But – its not impacted in teh sense that it is overuled as such. Its impacted in teh sense that if litigation is brought again in Micghian, the michigan court will have to engage the USSC analysis – and they may fidn a way out (thought, not having read today’s opinion – it can proove difficult). D
       —David    Jun. 23 '05 - 04:08PM    #
  5. Okay, Murph, what do you have in mind?
       —Steve Bean    Jun. 23 '05 - 05:53PM    #
  6. Steve: I have in my mind a fervent hope that the Hathcock ruling, even if it wouldn’t stand up if tested against the Kelo ruling, will be enough deterrent that no Michigan city thinks it’s worth testing.

    Eminent domain is perhaps my least favorite tool.
       —Murph.    Jun. 23 '05 - 07:22PM    #
  7. From what some of the pundits have said, I get the impression that this decision leaves alot of room for states to make their own, more restrictive, laws. I’m going to sit down and read all of the ooinions tomorrow. Oh so fun.
       —Paul    Jun. 23 '05 - 11:54PM    #
  8. Eminent domain is used all of the time, especially for road work to acquire ROW and easements. I’m opposed to seeing it used as it was used in the New London situation but its use is sometimes necessary. Plus, landowners are still guaranteed just compensation under the Constitution.
       —John Q.    Jun. 24 '05 - 12:44AM    #
  9. This is a tough case because eminent domain is often misused and tends to be directed toward the least powerful residents in a municipality. But it is critical to note that there is a reason why all the most conservative justices sided with the “ordinary people” against the private developers and their public allies in this instance when they rarely do elsewhere. The New London case is part of a broader array of litigation by libertarian groups and others with the overall goal of preventing almost any government regulation of private land use, including restrictive zoning and environmental regulation, without compensation for lost value. This is the same impulse that has resulted in the overturning of a central aspect of Oregon’s progressive land-use policy, so for the extreme property rights movement the New London case was more about the larger attack on public regulation of private property.
       —Matt    Jun. 24 '05 - 02:54PM    #
  10. Matt, I don’t think the New London case could be characterized as an “extreme property rights” case (though I agree that the “extreme property rights” advocates supported Kelo et al). It seems to be more a matter of deferential review on Stevens’ part (“the legislature knows best”) vs. checks on government power through Scalian constructionism (“the constitution does not anywhere include a right to take private property for public purpose, just public use”).

    Just because a case is supported by some extremist opinion doesn’t mean that it is a result of that extremist opinion or in itself extremist. “My house” is hardly an extreme conception of property rights.
       —Murph.    Jun. 24 '05 - 03:24PM    #
  11. The Institute for Justice that pushed the New London case is the same group that filed all the lawsuits in the 1990s attacking affirmative action and pushing for private school vouchers.

    I take your point about deferential review but in broader perspective the New London case is part of the anti-regulation agenda that wants to dispense with all environmental checks on private land use, have homeowners in Oregon compensated if they can’t turn their farms into subdivisions, and so forth. It is not an isolated case but one chosen by conservative groups precisely for this purpose, with the same sort of sympathetic clients that they choose in other cases (working-class white women for the anti-affirmative action litigation, low-income minority families for the private school voucher litigation).

    This is a slippery slope argument, but the problem is that a precedent in this Supreme Court case could have been pushed much further by anti-regulation lower courts, and that is why the four most conservative justices supported the homeowners despite their lack of concern about such individuals in so many other cases. Granted it is a tough case for those of us who know that urban renewal and eminent domain et. al have so often been used to displace minorities and the poor and clear land for the benefit of private developers more than the people who live there. But eminent domain is a necessary tool of government; it just needs to be used wisely and progressively.
       —Matt    Jun. 25 '05 - 12:51PM    #
  12. This decision is not a debate about the utility and necessity of eminent domain. This is about the effective disposal of the constitutional limit to that power, the phrase “for public use”. While the states may be free to further restrict eminent domain, they must also respect our constitution. The USSC has thrown “public use” into an infinite grey area and effectively ammended our constitution, with the weak disclaimer that states can fix the mess.
       —Phil Roy    Jun. 26 '05 - 10:48PM    #
  13. The feds are responding to Kelo and have devised a plan to withhold federal funds from projects utilizing powers of eminent domain.

    WaPo article
       —Dale    Jul. 1 '05 - 10:27AM    #
  14. Matt – eminent domain is a useful tool of government, but it should be a tool of last resort. Using it in the fashion of Kelo shows a remarkable lack of creativity on the part of the planners responsible for the project.

    While this may be a pet issue of the same groups of people who backed the Oregon amendment, that doesn’t necessarily mean the New London takings were right.

    And I’m tragically disappointed in Pelosi’s response (in Dale’s WaPo article). The House voted to not send federal funds to any project using eminent domain for profit-generating development activities, and Pelosi decries it as a violation of the separation of powers, undercutting the Supreme Court? Please. As if the Federal government has a duty to fund everything that somebody may do. That’s the weakest imaginable protest.
       —Murph.    Jul. 1 '05 - 11:29AM    #
  15. Oh, and, timely enough, O’Connor just resigned.
       —Murph.    Jul. 1 '05 - 11:33AM    #
  16. Agreed; the feds put limits and requirements on what they will fund all the time and Pelosi’s argument seems like more of a partisan argument than a justifiable constitutional critique.

    O’Connor announced her retirement, btw.
       —Dale    Jul. 1 '05 - 11:34AM    #
  17. I’m into echoing everything Murph says today.
       —Dale    Jul. 1 '05 - 11:35AM    #