Get the latest Emerging
Issues Analysis on Kelo v. City of New London, 545 U.S. 469
(U.S. 2005), the landmark U.S. Supreme Court decision holding that condemnation of
non-blighted homes for retransfer for private urban redevelopment did not
violate the Fifth Amendment's Public Use Clause. In this Analysis, Professor
Steven J. Eagle examines cases since the Kelo decision and concludes
that the Supreme Court's promise to prevent abuse of condemnation for private
redevelopment largely has been unfulfilled. He writes:
State Law Developments After Kelo
In the five years since Kelo was
decided, legislation to limit or forbid condemnation for retransfer for private
revitalization has been introduced in most states and passed in many. This
legislation has been a mixed bag, with some states simply adding procedural
hurdles or purporting to eliminate such takings, and others providing
exceptions for loosely defined "blight." Generally speaking, anti-Kelo
legislation has been mostly utilized in States where revitalization
condemnation has not been utilized and least successful where it has been most
utilized. For a comprehensive analysis, see Steven J. Eagle & Lauren A. Perotti, "Coping with
Kelo: A Potpourri of Legislative and Judicial Responses," 43 Real
Property, Probate and Trust J. 799 (2008).
Likewise, some state courts have
stringently restricted or forbidden takings for retransfer for private
revitalization under state law. Notable among them are County of Wayne v. Hathcock, 471 Mich. 445, 684 N.W.2d
765 (Mich. 2004), decided the year before Kelo, that repudiated the
state supreme court's earlier approval of revitalization transfers, and City of Norwood v. Horney, 110 Ohio St. 3d 353, 853
N.E.2d 1115 (Ohio 2006), where the Supreme Court of Ohio held that "an
economic or financial benefit alone is insufficient to satisfy the public-use
requirement" of the state constitution. The court accepted the analyses
offered by the dissenting justices in Kelo and in County of Wayne v.
Hathcock as models for interpreting Ohio's constitution.
. . . .
Considering Types of Private Transfers Susceptible
In addition to his comments on rational
basis review just quoted, Justice Kennedy declared in his concurring opinion in
Kelo that general adherence to rational basis review "does not
foreclose the possibility that a more stringent standard of review than that
announced in Berman [v. Parker, 348 U.S. 26 (U.S. 1954)]
[v. Hawaii Housing Authority, 467 U.S.
229 (U.S. 1984)] might be appropriate for a more narrowly drawn category of takings.
There may be private transfers in which the risk of undetected impermissible
favoritism of private parties is so acute that a presumption (rebuttable or
otherwise) of invalidity is warranted under the Public Use Clause."
One situation that might lend itself to
heightened judicial scrutiny is the imposition of exactions by government-selected
redevelopers in exchange for promises not to condemn. This was the issue in Didden v. Village of Port Chester, 322 F. Supp. 2d 385
(S.D.N.Y. 2004), adjudicating claims of extortionate exactions by a
developer threatening condemnation under color of law.
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Also from Professor Steven J. Eagle - Regulatory Takings, Fourth Edition