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.
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.
New London, Four Years After Kelo
The 2005 Supreme Court decision on Kelo v. New London was a landmark in eminent domain law, paving the way for Pfizer to develop there. Four years later, Pfizer is pulling up stakes.
Vermont Land Use Case Could Go to Supreme Court
Property owners argue that a new law protecting wildlife corridors amounts to an unconstitutional taking of property.
Dakota Access Pipeline Owners Win Eminent Domain Appeal in Iowa Supreme Court
The Iowa Supreme Court affirmed a lower court ruling that found that the Iowa Utilities Board was justified in giving the private owners of the Dakota Access Pipeline the use of eminent domain. Climate change was considered in the ruling.
Planetizen Federal Action Tracker
A weekly monitor of how Trump’s orders and actions are impacting planners and planning in America.
Chicago’s Ghost Rails
Just beneath the surface of the modern city lie the remnants of its expansive early 20th-century streetcar system.
Amtrak Cutting Jobs, Funding to High-Speed Rail
The agency plans to cut 10 percent of its workforce and has confirmed it will not fund new high-speed rail projects.
Ohio Forces Data Centers to Prepay for Power
Utilities are calling on states to hold data center operators responsible for new energy demands to prevent leaving consumers on the hook for their bills.
MARTA CEO Steps Down Amid Citizenship Concerns
MARTA’s board announced Thursday that its chief, who is from Canada, is resigning due to questions about his immigration status.
Silicon Valley ‘Bike Superhighway’ Awarded $14M State Grant
A Caltrans grant brings the 10-mile Central Bikeway project connecting Santa Clara and East San Jose closer to fruition.
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.
Caltrans
City of Fort Worth
Mpact (founded as Rail~Volution)
City of Camden Redevelopment Agency
City of Astoria
City of Portland
City of Laramie
