Why Kelo is not a blank check

Last week marked the third anniversary of the Supreme Court’s ruling in Kelo v. New London. The first time I read Kelo, I thought what many Americans probably thought: that any government could seize property for any reason, so long as it compensated prior owners. But after having taught Kelo to law students several times over the past few years, I now realize that Kelo is much more complex. Kelo was a 5-4 decision, and Justice Anthony Kennedy wrote a separate concurrence. Because Justice Kennedy was the “swing vote”, his decision predicts future Court decisionmaking more accurately than the Court’s primary opinion, because a taking which fails to satisfy Kennedy might not be able to get five votes in the Supreme Court.

2 minute read

July 4, 2008, 12:46 PM PDT

By Michael Lewyn @mlewyn


Last week marked the third anniversary of the Supreme Court's ruling in Kelo v. New London. The first time I read Kelo, I thought what many Americans probably thought: that any government could seize property for any reason, so long as it compensated prior owners.



But after having taught Kelo to law students several times over the past few years, I now realize that Kelo is much more complex. Kelo was a 5-4 decision, and Justice Anthony Kennedy wrote a separate concurrence. Because Justice Kennedy was the "swing vote", his decision predicts future Court decisionmaking more accurately than the Court's primary opinion, because a taking which fails to satisfy Kennedy might not be able to get five votes in the Supreme Court.



Justice Kennedy wrote:




This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimis. The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city's purposes.




Thus, the taking in Kelo was valid only because:



1. The city jumped through the appropriate procedural hoops, such as creating "a comprehensive development plan" and other "elaborate procedural requirements";



2. The city of New London was in a "serious city-wide depression";



3. The economic benefits of the taking were more than "de minimis"; and



4. The ultimate beneficiaries of the taking were "unknown at the time the city formulated its plans."



If any of these requirements are not met, the validity of a taking becomes a close call. For example, suppose the city wants to bulldoze a subdivision in a reasonably prosperous suburb to build a Wal-Mart. Even if appropriate procedures are followed, factors 2 and 4 (city-wide depression and "unknown" beneficiaries) are not met. Thus, Kelo is not on point and does not require lower courts to uphold the city's decision. Does this mean the city automatically loses? No, but it does mean that a plaintiff who wishes to challenge the taking may have a plausible claim.







Michael Lewyn

Michael Lewyn is a professor at Touro University, Jacob D. Fuchsberg Law Center, in Long Island. His scholarship can be found at http://works.bepress.com/lewyn.

portrait of professional woman

I love the variety of courses, many practical, and all richly illustrated. They have inspired many ideas that I've applied in practice, and in my own teaching. Mary G., Urban Planner

I love the variety of courses, many practical, and all richly illustrated. They have inspired many ideas that I've applied in practice, and in my own teaching.

Mary G., Urban Planner

Cover CM Credits, Earn Certificates, Push Your Career Forward

Aerial view of town of Wailuku in Maui, Hawaii with mountains in background against cloudy sunset sky.

Maui's Vacation Rental Debate Turns Ugly

Verbal attacks, misinformation campaigns and fistfights plague a high-stakes debate to convert thousands of vacation rentals into long-term housing.

July 1, 2025 - Honolulu Civil Beat

Logo for Planetizen Federal Action Tracker with black and white image of U.S. Capitol with water ripple overlay.

Planetizen Federal Action Tracker

A weekly monitor of how Trump’s orders and actions are impacting planners and planning in America.

July 2, 2025 - Diana Ionescu

White and purple sign for Slow Street in San Francisco, California with people crossing crosswalk.

San Francisco Suspends Traffic Calming Amidst Record Deaths

Citing “a challenging fiscal landscape,” the city will cease the program on the heels of 42 traffic deaths, including 24 pedestrians.

July 1, 2025 - KQED

"Altadena - Not For Sale" yard sign in front of burned down house after Eaton Fire in Altadena, California in January 2025.

Half of Post-Fire Altadena Home Sales Were to Corporations

Large investors are quietly buying up dozens of properties in Altadena, California, where a devastating wildfire destroyed more than 6,000 homes in January.

July 7 - Dwell

Dense multistory residential buildings in hilly San Francisco, California.

Opinion: What San Francisco’s Proposed ‘Family Zoning’ Could Really Mean

Mayor Lurie is using ‘family zoning’ to encourage denser development and upzoning — but could the concept actually foster community and more human-scale public spaces?

July 7 - The San Francisco Standard

Blue self-driving Ford Transit van shuttle in Jacksonville, Florida.

Jacksonville Launches First Autonomous Transit Shuttle in US

A fleet of 14 fully autonomous vehicles will serve a 3.5-mile downtown Jacksonville route with 12 stops.

July 7 - Smart Cities Dive

Urban Design for Planners 1: Software Tools

This six-course series explores essential urban design concepts using open source software and equips planners with the tools they need to participate fully in the urban design process.

Planning for Universal Design

Learn the tools for implementing Universal Design in planning regulations.

Associate/Senior Planner

Gallatin County Department of Planning & Community Development

Senior Planner

Heyer Gruel & Associates PA

Write for Planetizen