Students of the Supreme Court’s infamous-the-day-it-was-decided decision in Kelo v. City of New London know that the legal issue presented and decided by the Court was somewhat narrow, but that the decision had a broad cultural impact such that Susette Kelo’s SCOTUS 5-4 loss was merely a precursor to widespread political and moral victories.
Legally narrow issue? Yes, recall that the question presented in that case was whether takings for “economic development” are so particularly untrustworthy and susceptible to abuse that they require the judiciary to depart from the usual rational basis review and cast a more skeptical “heightened scrutiny” eye on what the Court in Berman said was a legislative judgment “well-nigh conclusive,” and Midkiff equated with run-of-the-mill exercises of the police power.
The Kelo majority held no, that at least in the case as presented, the taking of a home and neighborhood on the theory that another owner would make a more economically-intense — and thus publicly beneficial — uses of these properties did not warrant stricter scrutiny than a taking for other purposes such as a post office or a public road.
The Fort Trumbull condemnations were, after all, part of New London’s redevelopment plan the majority concluded, so there was no reason for a court to inject itself into what to the majority appeared to be democracy functioning as it should. Kelo’s remedy, the majority implicitly concluded, was to fight it out in the planning process. That she lost there was of no constitutional consequence, them’s the breaks. That’s democracy, that’s life.
Most revealing was the majority’s stealth-citation to the Supreme Court decision which forms the basis of land use planning and zoning, and the high degree of deference which the courts pay to zoning decisions, Village of Euclid v. Ambler Realty Co., 72 U.S. 365 (1926). You land users will find the majority’s language very familiar:
Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue. As with other exercises in urban planning and development,12 the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.
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12. Cf. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
Takings outside of a plan might be subject to more scrutiny, but here New London had a plan. In other words, using the eminent domain power to deprive an owner of her property and oust her from possession is just like a run-of-the-mill police power zoning, and as long as the taking is part of some “plan,” deserves the same judicial deference.
In the time since Kelo, there have been commentary on the necessity of a plan, as well as cases from other courts which focus on the “plan” which a taking is supposedly part of. Necessary? Some say yes, some say no, as do others. Some courts have held that an imaginary plan is ok.
In that vein, check this out, a piece by John C. Mozena, “The Supreme Court’s Big ‘Kelo’ Mistake Was Trusting Economic Development Plans,” at the Center for Economic Accountability.
The author dives in and asks whether the Court should have relied on these redevelopment plans as the trigger to rational basis review (or, as the question was presented in Kelo, whether the usual high deference courts pay to legislative judgments about what uses are “public”). Not so fast:
This reliance on government planning and implicit assumption that those plans’ existence could and would result in their planned outcomes showed through in the language Stevens used to describe the future. His opinion referenced a hotel “that will include restaurants and shopping” and “will also have marinas for both recreational and commercial uses,” as well as another parcel that “will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park.” [Emphasis added.]
Stevens was wrong in these assertions. Not only wrong morally and legally, but also wrong factually as there would never be a hotel, restaurants and shopping, 80 new residents or any of the other benefits whose existence he so confidently asserted. The “carefully formulated economic development plan” that justified seizing Susette’s home fell apart almost immediately, Pfizer left town and the land remained vacant for years, famously becoming home to a colony of feral cats instead of buildings full of pharmaceutical researchers.
The Kelo majority’s emphasis on a “plan,” Mozena writes, incentivized condemnors to produce plans to that shield private purposes and benefits and other non-democratic outcomes “no matter how haphazard or farfetched it [the plan] might be[.]” Mozena goes on to catalog redevelopment/takings plans that never went anywhere, something the great teacher and practitioner of eminent domain law, Professor Gideon Kanner, wrote about in his final law review article, “Eminent Domain Projects that Didn’t Work Out,” 12 Brigham-Kanner Property Rts. J. 171 (2023).
Will the fact that many of these plans are just pie-in-the-sky have any impact on Justices who believe that the process by which these plans are adopted is more important than the question of whether the plans will actually work? In the land use arena, we haven’t seen any indication that judges care all that much about the chances of success of government plans, whether those plans be zoning, planning, economic legislation, or eminent domain. Indeed, courts studiously eschew any role in what is called the “means-end-fit,” or whether legislation will “work.”
We wish courts would care in eminent domain, even if they don’t care generally. There’s something different about eminent domain and takings someone’s property away, than when the government is merely exercising its police or other power to regulate property, isn’t there? Not to the Kelo majority.
And the usual majoritarian processes by which plans are adopted and someone’s property is targeted are not very good at protecting vulnerable owners from a government officials’ starry-eyed thinking and economic pipe dreaming. We think that is where the majority’s assumptions were horribly wrong.
True, eminent domain comes with just compensation. But as Susette Kelo’s case starkly illustrated, sometimes the dignity of keeping your property cannot be replaced with money, and courts should recognize and protect that. The Supreme Court’s recent decision in Sheetz was a good sign the Court is starting that recognition. There, the Court was in “radical agreement” that just because it is the legislature which imposes an exaction as the price of exercising your constitutional property rights, does not insulate the legislation from the dual requirements of logical nexus and rough proportionality.
One of these days, the Court is going to confront this same vibe in eminent domain.