Professor Ilya Somin has posted a summary of a recent Fifth Circuit decision upholding an exercise of eminent domain for economic development because it was in accordance with an integrated plan.
Justice Stevens’ Kelo opinion took great effort to analogize New London’s exercise of eminent domain with the Euclidean zoning process. Those of us who practice land use law know that in order to pass Constitutional muster, zoning must be neutral, transparent, and comprehensive, or else it is subject to a due process challenge. The case that gave us this standard and upheld zoning, and is still the touchstone of comprehensive planning, is the 1926 case Village of Euclid v. Ambler Realty Co., upholding citywide zoning against a due process challenge.
The limitation on the government’s power, and the basis for a court’s deferral to the legislative judgment of the legislative branch, is that zoning of property is supposedly comprehensive and part of a larger plan. In the absence of comprehensiveness, zoning would violate due process. Justice Stevens refers to Euclid expressly as a reason why the taking in Kelo was for a public use/purpose. Look to the language in his recitation of the facts, where he repeatedly emphasizes the “neighborhood meetings,” the “integrated development plan,” the “carefully considered development plan,” and that “The City has carefully formulated an economic development plan,” etcetera.
Property owners can still challenge a zoning ordinance as a due process violation, or as “spot zoning,” which has constitutional overtones. A good example is the 1996 case from the New York Court of Appeals, Town of Orangetown v. Magee, 665 N.E.2d 1061, where the court held that public opposition to a vested development project was the reason for the town’s behavior, not comprehensive planning.
In the post-Kelo world will property owners have to prove “spot takings” in order to prevail under the Public Use clause of the Fifth Amendment?
