Post-Kelo Eminent Domain Reform: A Double-Edged Sword for Historic Preservation

Post-Kelo Eminent Domain Reform: A Double-Edged Sword for Historic Preservation

By R. Benjamin Lingle

J.D. 2011, University of Florida Levin College of Law

Excerpted from Post-Kelo Eminent Domain Reform: A Double-Edged Sword for Historic Preservation, 63 Fla. L. Rev. 985

I. Introduction

The preservation of historic structures provides communities across the nation with both a source of pride in our national history and a window through which to view that history. Governments' powers of eminent domain have long served as a tool for historic preservation; however, eminent domain also facilitates the destruction of historic structures. Thus, commentators have referred to eminent domain as a double-edged sword for historic preservation. 1 With the 2005 Kelo v. City of New London decision [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], the U.S. Supreme Court altered the field of permissible condemnations, validating governments' constitutional authority to condemn non- blighted neighborhoods for private redevelopment. 2 States responded by reining in their governments' condemnation powers. 3 With the dust from the states' legislative flurry seemingly settled, it appears that eminent domain still cuts both ways in the realm of historic preservation.

The Takings Clause of the Fifth Amendment requires the federal government to pay just compensation when it takes private property for a public use. 4 Since 1897, the Supreme Court has incorporated this requirement against the states through the Due Process Clause of the Fourteenth Amendment. 5 What constitutes a public use has evolved considerably over the years, with the general trend toward a steadily more inclusive definition. 6 The evolution hit a high point with the Supreme Court's Kelo decision. In an opinion penned by Justice John Paul Stevens, the Kelo Court held that the use of eminent domain to transfer non-blighted private property ...

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