January 1, 1900

Anne L. H. Studholme

Governmental agencies have long condemned private property, especially as part of redevelopment plans, with those properties ultimately being conveyed to private entities. In the pending case of Kelo v. New London, the United States Supreme Court is considering the extent to which the government is limited when it condemns land that is to be turned over to private interests.

Background

The Fifth Amendment to the United States Constitution provides that, "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Condemnation of land by eminent domain has long been recognized as an appropriate exercise of governmental power when the land was to be used for a "public purpose."

The Facts in the Kelo Case

The Kelo case tests the power of the government to exercise eminent domain merely in order to lease the condemned property, including several private homes in good condition, to a private commercial developer. The government contends that the requisite "public purpose" is present on the grounds that the resulting large development would create jobs, increase tax revenues, and encourage economic growth throughout New London. The unblighted, economically viable residential properties in question were condemned for private commercial development as part of a plan for the "economic revitalization" of a similarly unblighted area.

The residents sued, saying that the speculative economic benefits to be gained by upscaling a neighborhood are not "public uses" and that there can be no public use when private parties retain control over the parcels' use. The Connecticut Supreme Court disagreed, concluding that "public use" may include public usefulness, utility or advantage, or what is productive of general benefit.

The proposed development in Kelo would include a waterfront hotel and conference center, along with marinas for transient tourist boaters and commercial fishing vessels, a public walkway along the waterfront, new residences, parking, retail services, research and development space, office space, and a variety of water-dependent commercial uses. As proposed, a private, non-profit municipal development corporation will own the land located within the development area and will lease various parcels to private developers.

The U.S. Supreme Court Proceedings

As one of the very few eminent domain cases to be granted review by the U.S. Supreme Court, the Kelo case has generated a flurry of amicus curiae briefs, most in support of the landowners and questioning the wisdom of carte blanche authority to condemn property for "speculative Îeconomic development' projects." Other briefs urge the Court not to fall back on a requirement of "blight" before land can be condemned. Those briefs describe land use difficulties, due to circumstances such as high population density, and argue that government needs very wide latitude in order to address these issues. Meanwhile, in the other direction, certain parties urge the Court to adopt a more restrictive test than mere "rational relation to a legitimate government objective" for upholding a declaration of public purpose.

Conclusion

No one can say for sure why the Court accepted review of the Kelo case. Perhaps the novelty of the type of economic redevelopment employed, combined with the increasing controversy around the country regarding such redevelopment issues, convinced the Court to accept the case. The Court seems to feel that the time has come to see whether there should be more restraint on takings of private property for redevelopment. Alternatively, it may see its long-established authority on this point as under siege and in need of reinforcement. The case has been orally argued and a decision can be expected shortly. Whatever the outcome, it is hoped that landowners, municipalities, and redevelopers will be given clear direction on what is, and is not, a "public use" for land taken by eminent domain. "The Kelo case tests the power of the government to exercise eminent domain merely in order to lease the condemned property·to a private commercial developer."

Anne L. H. Studholme is an associate of the firm. She is a member of the Land Use Division concentrating her practice in diverse land use matters.