Content uploaded by Judy Gedge
Author content
All content in this area was uploaded by Judy Gedge on Jan 14, 2016
Content may be subject to copyright.
67/Vol.22/North East Journal of Legal Studies
IN THE LAND OF KELO:
STILL NO MEANINGFUL PROTECTION
FOR PROPERTY OWNERS
by
Judy Gedge*
ABSTRACT
This article analyzes Connecticut’s legislative response to
the Supreme Court’s decision in Kelo v. City of New London.
Following a brief summary of the Kelo case, the article
describes the municipal economic development statutes in
effect in 2000 when the New London project was approved and
how these statutes were changed in response to the popular
backlash against Kelo. Under newly adopted Conn. Gen. Stat.
8-193(b)(1), eminent domain may not be used to acquire
property for economic development if its primary purpose is to
increase local tax revenue. The New London development
plan in Kelo is put to the new statutory test to see if it would
protect the affected property owners. The clear conclusion is
that Connecticut’s statutory reform provides no meaningful
protection for property owners against the use of eminent
domain for private commercial projects.
* Visiting Assistant Professor of Business Law, School of
Business, Quinnipiac University, Connecticut.
2009/In the Land of Kelo/68
INTRODUCTION
In Kelo v. City of New London,
1
the U.S. Supreme Court
held that private economic development is a permitted public
use under the Fifth Amendment to the U.S. Constitution. Kelo
arose from the exercise of eminent domain under an economic
development plan adopted by the City of New London,
Connecticut in November 2000. The City condemned the
property of Susette Kelo and eight other property owners
pursuant to its plan for the Fort Trumbull section of the City in
which property would be transferred to a private developer to
build a project consisting of a hotel and conference center,
private residences and office buildings. The purpose was to
create jobs and increase tax revenues for the City. The use of
eminent domain for such private economic development was
explicitly authorized under Connecticut law.
2
The Supreme Court’s decision in Kelo created a popular
backlash against the use of eminent domain for private
economic development. In response to this national outcry,
many states have enacted reform measures to limit the power
of eminent domain.
This article provides a brief background of the Kelo case
including a summary of the Supreme Court decision. Its
primary focus, however, is an analysis of the reform enacted by
the State of Connecticut in response to Kelo. To determine
whether the statutory reform provides any meaningful
protection to property owners, the article also asks the
fundamental question: If the identical New London
development plan were adopted today, would the revised
Connecticut law protect property owners from a compulsory
purchase of their homes?
69/Vol.22/North East Journal of Legal Studies
BACKGROUND A. Property Rights
The legal issue raised in Kelo reflects a clash of two
bedrock principles - the government’s authority to exercise the
power of eminent domain and the individual’s right to use and
enjoy his private property. The right of private property is
among the most revered in the common law tradition. In fact,
the protection of property rights against government
interference can be traced as far back as the Magna Carta in the
thirteenth century.
3
The provisions in the U.S. Constitution
that protect property rights, including the Fifth Amendment,
reflect the paramount value placed by the Founding Fathers on
the right to acquire and own property.
4
In 1795, the Supreme Court emphasized the importance of
property rights as follows: “the right of acquiring and
possessing property and having it protected is one of the
natural, inherent and inalienable rights of man . . . [T]he
preservation of property then is a primary object of the social
compact.”
5
For more than two hundred years, the Supreme Court has
consistently held that it is unlawful for the government to take
property from A and give it to B. In the oft-cited case Calder
v. Bull, Justice Chase wrote:
An Act of the Legislature (for I cannot call it a
law) contrary to the great first principles of the
social compact, cannot be considered a rightful
exercise of legislative authority. . . . A few
instances will suffice to explain what I mean . . .
[A] law that takes property from A. and gives it
to B: It is against all reason and justice, for a
people to entrust a Legislature with such powers;
2009/In the Land of Kelo/70
and, therefore, it cannot be presumed that they
have done it.
6
B. Eminent Domain
While the sanctity of property rights is a long-standing
tradition dating back to early English law, the state’s power of
eminent domain also has a long history. It derives from the
sovereign’s inherent power to acquire private property and
purportedly dates back to Roman times.
7
The Fifth Amendment limits the government’s power of
eminent domain by requiring that a taking be for a public use
and that just compensation be paid to the owner.
8
Similar
protections are also embodied in state laws.
9
As Justice
O’Connor stated in her dissenting opinion in Kelo: “The public
use requirement . . . circumscribes[s] the very scope of the
eminent domain power: Government may compel an individual
to forfeit her property for the public’s use, but not for the
benefit of another private person. This requirement promotes
fairness as well as security.”
10
What then constitutes public use? The interpretation of
public use has been greatly expanded over the last fifty years.
11
This issue became the key battleground between the
individual’s right to possess and use his property and the
state’s competing interest in taking it for the public use.
It is well-established that eminent domain can properly be
used to take property which will be owned by the government
and open to the public (such as for a school or a highway).
12
Under what circumstances, however, is the exercise of eminent
domain constitutionally permitted when the property will be
transferred to a private party? There is no general consensus
on this issue.
13
It is the constitutionality of this expanded use
of eminent domain which is at the heart of the Kelo case where
property was taken for the purpose of transferring it to a
private party to build a private commercial development.
71/Vol.22/North East Journal of Legal Studies
C. New London and Susette Kelo
That the City of New London was in economic decline was
evidenced by its designation by the State as a distressed
municipality in 1990. In particular, the City had suffered from
the closing of the Naval Undersea Warfare Center in 1996
which resulted in the loss of over 1,500 jobs. In an effort to
revive the city, the New London Development Corporation
(NLDC) was reactivated in 1998 and authorized to act as the
City’s development agent. In early 1998, Pfizer Inc., the
pharmaceutical company, announced that it would build a $300
million research facility on the New London Mill site
immediately adjacent to the City’s Fort Trumbull waterfront
district. The project was projected to provide nearly 2,000
jobs.
14
Following Pfizer’s announcement, the NLDC prepared an
integrated municipal economic development plan for the Fort
Trumbull area pursuant to Connecticut General Statutes (CGS)
section 8-189. The development plan encompassed
approximately 90 acres consisting of 115 privately owned
properties and the 32 acres of land formerly occupied by the
naval facility. The plan included a waterfront conference hotel,
a 90,000 square foot research and development facility, new
houses, office, retail space, and other commercial uses.
15
The plan’s purpose was to complement the new Pfizer
project, create jobs, increase tax revenues, encourage public
access to the city’s waterfront and eventually build momentum
for the revitalization of the rest of the City including its
downtown area. The plan was also designed to make the City
generally more attractive and provide leisure and recreational
opportunities on the waterfront and in the park.
16
2009/In the Land of Kelo/72
The plan required the acquisition of the 90-acre project
area by the City and its subsequent transfer to a private party
who would be responsible for developing the property.
17
The
plan was approved by the New London City Council in January
2000 and the NLDC was authorized to purchase the property or
acquire it using eminent domain. The NLDC was able to
negotiate the purchase of most of the property in the project
area but it was unable to purchase fifteen parcels. Nine owners
refused to sell their properties to the City. The NLDC
exercised its power of eminent domain on behalf of New
London to condemn these properties.
18
These fifteen properties in the Fort Trumbull neighborhood
were not blighted. There is no claim that they were in poor
condition. They were condemned solely because they were
located within the area of the development plan adopted by
New London.
19
Susette Kelo and the eight other affected property owners
filed suit against the City of New London challenging the
condemnation of their properties. They argued that the takings
did not constitute a public use and were therefore invalid under
the Constitution of the State of Connecticut
20
and the U.S.
Constitution.
21
New London argued that the taking of non-
blighted property to transfer it to a private developer for the
purpose of private economic development which was intended
to increase tax revenues and create jobs was a public use and,
therefore, a constitutionally permitted taking.
The case was appealed to the Connecticut Supreme Court
which rejected the homeowners’ arguments. The court held
that an economic development plan that the City had rationally
determined would promote significant municipal economic
development constituted a valid public use, thus permitting the
exercise of eminent domain under both the federal and state
73/Vol.22/North East Journal of Legal Studies
constitutions.
22
The homeowners appealed to the U.S.
Supreme Court.
THE SUPREME COURT DECISION
In addressing the issues raised in Kelo, the Supreme Court
pointed out two polar propositions at the heart of the case.
23
First, the sovereign may not take the property of A for the sole
purpose of transferring it to another private party B even
though compensation is paid to A. However, the State may
transfer property from one private party to another if the
purpose is public use such as condemnation for a railroad with
common-carrier duties.
24
The Court traced the history of its
interpretation of public use concluding that, having rejected a
literal requirement that condemned property be put into use for
the general public, it had adopted instead a broader
interpretation of public use as public purpose.
25
The issue in Kelo was whether the New London plan
served a public purpose. In making this determination, the
Court afforded substantial deference to the legislature’s
determination of what public needs justify the use of the
takings power.
26
The Kelo decision relied heavily on Berman v. Parker,
27
a
case which affirmed the exercise of eminent domain to
transform a blighted area of Washington D.C. into a well-
balanced community through redevelopment.
28
In addition, the
Court relied on Hawaii Housing Authority v. Midkiff
29
which
upheld the compulsory transfer of fee title from property
owners to their tenants in order to reduce the concentration of
land ownership in Hawaii.
30
Relying on the reasoning of both
these cases, the Court stated: “It would be incongruous to hold
that the City's interest in the economic benefits to be derived
from the development of the Fort Trumbull area has less of a
public character than any of those other interests. Clearly,
2009/In the Land of Kelo/74
there is no basis for exempting economic development from
our traditionally broad understanding of public purpose.”
31
In upholding the constitutionality of the takings in Kelo, the
Court concluded that the comprehensive development that New
London believed would provide new jobs, increase tax
revenues and provide other appreciable benefits to the
community satisfied the public use requirement of the Fifth
Amendment.
32
In its majority opinion, the Supreme Court noted that
property owners can turn to their own state governments to
obtain more stringent restrictions on the exercise of the taking
power.
33
In direct response to Kelo, many states did enact
legislation to limit the power of eminent domain.
CONNECTICUT’S LEGISLATIVE REFORM
By January 1, 2008, thirty-nine states had enacted
legislation or passed ballot measures in response to Kelo.
34
Many polls taken following the Kelo ruling reflect an
overwhelming negative response to the use of eminent domain
for private economic development.
35
In Connecticut, a 2005
Quinnipiac University poll showed that 88% of the poll
participants disagreed with the use of eminent domain for
private economic development.
36
The Connecticut legislature
adopted its own post-Kelo reform measures in 2007.
37
A. Reform to Connecticut Municipal Economic Development
Statutes
The policy underlying municipal economic development in
Connecticut is to promote the growth of industry and business
by helping cities acquire and improve property. Cities are
authorized to acquire property for industrial and business
75/Vol.22/North East Journal of Legal Studies
purposes and, under certain circumstances, to obtain state funds
for development projects all of which are identified as public
uses and purposes.
38
The statutes governing municipal economic development in
effect in 2000 provided a detailed framework for a plan’s
contents,
39
a public hearing process,
40
and a plan’s adoption by
the city council.
41
Upon approval of a plan, the development
agency is authorized to acquire the real estate in the project
area but, if eminent domain will be used to acquire property,
the agency must obtain the prior approval of the city council.
42
The agency is specifically authorized to transfer property in the
project area to private parties provided such transfer is at fair
market value.
43
This statutory scheme was in effect in 2000
and remains in effect today subject to the recent reform
measures discussed below.
In 2007, the Connecticut legislature enacted revisions to
the statutes governing municipal economic development
projects (such as the one in New London) as well as to the
statutes governing municipal blight eradication projects.
1. Adoption of Primary Purpose Test.
The recently adopted reform measures impose a limitation
on the government’s power to condemn non-blighted property
for economic development. Under newly-adopted CGS section
8-193(b)(1), eminent domain may not be used to acquire
property for an economic development project if its primary
purpose is to increase local tax revenue.
44
In addition, under new statutory provisions, a development
plan must contain:
2009/In the Land of Kelo/76
A description of the public benefits of the project including
the estimated property tax benefits, its intended role in
increasing or sustaining market value of land in the
municipality and in maintaining or enhancing the
competitiveness of the municipality;
45
and
A finding that the public benefits of the plan outweigh any
private benefits, that the use of eminent domain is
reasonably necessary, and that the plan is not for the
primary purpose of increasing tax revenues.
46
Cities are authorized under this statutory framework to
adopt and implement a plan to develop non-blighted property.
This includes the right to acquire such property by eminent
domain and transfer it to private persons for development in
accordance with the approved plan. The only new substantive
limitation on this authority is that the proposed project may not
be ‘for the primary purpose of increasing local tax revenue.’
In addition, the newly-enacted statute requires the
development agency and the municipal legislative body to
make a finding that the public benefits outweigh any private
benefits and identifies additional project goals which constitute
public benefits. These new goals include: (i) increasing or
sustaining market value in the municipality; and
(ii) maintaining or enhancing the competitiveness of the
municipality.
47
It is interesting to note that the legislature
specifically added property tax benefits as a public benefit,
48
a
project goal that was not previously made explicit.
Therefore, under the post-Kelo reform measures, increasing
local tax revenues may not be the primary purpose of a project,
but the goal of increasing tax revenues is explicitly authorized
as a permitted purpose. In other words, a goal to increase local
(property) taxes by a private economic development project
77/Vol.22/North East Journal of Legal Studies
will satisfy the legislative requirements so long as it not the
primary goal. A project will meet the new statutory test if its
primary purpose, for example, is to increase or sustain market
value in the municipality or to maintain or enhance the
competitiveness of the municipality (both of which criteria
have been added as permitted goals). The goal of increasing
tax revenues is now explicitly permitted as long as it is not first
on the list of project goals.
2. Analysis of Legislative Reform in Municipal Economic
Development.
Does recent reform to the statutes governing municipal
economic development provide any meaningful protection to
Connecticut property owners? If the same plan at the heart of
Kelo were adopted today and a challenge brought by the New
London homeowners to the use of eminent domain, would their
homes be protected? The validity of the plan would be based
entirely on its compliance with the revised statutes.
In the wake of changes made to the governing statutes, the
City need only show that increasing tax revenues is not the
primary goal of the project. In the statement of project goals
contained in the 2000 development plan, increased tax revenue
is listed as only one of the project goals.
49
If creating jobs were
the primary goal of the project, then it satisfies the revised
statutory requirements and the use of eminent domain is
authorized. If building momentum for the revitalization of
downtown New London were the project’s primary goal, then
it satisfies the newly revised statutes and the use of eminent
domain is authorized. Moreover, the stated project goal of
revitalizing downtown New London falls squarely within the
new statutory criterion of ‘enhancing the competitiveness of
the municipality.’ In light of the new statutory limitation on
the use of eminent domain for economic development, New
London might simply omit ‘increased tax revenue’ from its list
2009/In the Land of Kelo/78
of project goals if it were adopting such a plan today. But,
assuming this was a project goal, placing it anywhere but first
on the list would satisfy the new statutory limitation.
It is clear that the New London development plan would be
authorized under the newly-revised statutes. If these statutory
revisions were in effect in the year 2000, the property of
Susette Kelo and the eight other homeowners in Fort Trumbull,
would not be any safer from seizure by the government. The
‘primary purpose’ test adds no meaningful protection to
Connecticut property owners. The measures adopted by the
Connecticut legislature in response to Kelo provide no
substantive protection limiting the government’s authority to
exercise eminent domain for the purpose of private economic
development.
50
Indeed, it seems unlikely that anyone but the
‘stupid staffer’
51
would fail to satisfy the statutory requirements
governing a taking for private economic development in the
State of Connecticut today. Connecticut property owners have
no more substantive protection against government seizure of
their property for private economic development today than
they did in 2000.
In addition to condemnations for economic development
projects, municipalities are authorized to condemn property to
eradicate blight.
52
The New London plan in Kelo did not
involve blighted properties and was not undertaken pursuant to
the blight eradication statutory provisions. However, as part of
its post-Kelo legislative reform, the Connecticut legislature also
enacted revisions to the blight eradication statutes.
B. Reform to Connecticut Blight Removal Statutes
The statutes governing blight removal have been revised to
prohibit the acquisition of property by eminent domain for a
blight removal project for the primary purpose of increasing
79/Vol.22/North East Journal of Legal Studies
tax revenue.
53
For the reasons discussed above regarding the
new primary purpose test in economic development projects,
this reform provides no substantive protection to property
owners. By its very nature of blight removal, the project’s
primary goal will undoubtedly be - removal of blight. Even if
increased tax revenue is a stated project goal, this would in all
likelihood be reflected as a non-primary goal.
Adding the primary purpose test as a limitation on eminent
domain takings under both economic development and blight
removal projects provides no meaningful protection to property
owners. However, the expanded definition of blight recently
enacted by the Connecticut legislature has the potential to
expand a city’s power of eminent domain substantially.
1. Broad Blight Definition.
The long-standing public policy of the statutes governing
blight eradication in Connecticut is redevelopment of blighted
areas. Municipalities are specifically authorized to use eminent
domain to acquire properties within a blight redevelopment
area with approval of the city’s legislative body.
54
Properties
which are unsafe, unsanitary or otherwise substandard are
deemed blighted under the statute. In addition, property that is
deteriorated or deteriorating is considered blighted.
55
Prior to recent legislative reform, there was no statutory
definition of ‘deteriorated’ or ‘deteriorating’ in the governing
statutes. Now these terms are defined in revised CGS section
8-125 to include factors such as unsafe plumbing, heating and
electrical facilities and unsafe streets. More importantly, under
the new statute, an area is considered deteriorated or
deteriorating if at least twenty percent of the buildings in the
area contain defects that warrant clearance. These defects
include improper location of structures, obsolete building types
2009/In the Land of Kelo/80
and detrimental land uses.
56
This new statutory provision re-
defining blight greatly expands the government’s eminent
domain power in Connecticut.
2. Analysis of Legislative Reform in Blight Removal Projects.
Connecticut cities have long had the power to use eminent
domain to acquire property in blighted areas for redevelop-
ment.
57
Under the new statutory definition, an area can be
designated as blighted if twenty percent of the properties meet
the nebulous condition of deteriorated property or the even
more nebulous condition of deteriorating property. A
neighborhood will be considered blighted even though eighty
percent of the properties are well maintained. It has been
suggested that, under this type of broad definition of blight,
some of the country’s most exclusive neighborhoods, such as
Beacon Hill and Greenwich Village, could be considered
blighted.
58
It is not unusual for a city to sponsor private economic
development under the statutory framework of blight
eradication. Including such vague criteria as detrimental land
use in defining blight makes it even easier for a city to use
eminent domain for private commercial projects. Using a
broad definition of blight, Times Square was declared blighted
in the 1980’s which paved the way for the City of New York to
use eminent domain to acquire property for a commercial
project including a new headquarters for the New York Times,
additional office space, condominiums, and retail space.
59
A
large portion of downtown Las Vegas was declared blighted
under a broad blight definition with the result that private
property was taken for the purpose of building a parking garage
to be operated by, and for the benefit of, a casino consortium.
60
81/Vol.22/North East Journal of Legal Studies
Similarly, private property is subject to taking under the
recently-expanded eminent domain authority governing blight
removal in Connecticut. Property owners achieved no
protection by the legislature’s adoption of this expansive
definition of deteriorated or deteriorating properties. In fact,
this reform likely results in a further erosion of property rights
in the state.
REFORM IN OTHER STATES
Many states have enacted meaningful limitations on the use
of eminent domain to protect property owners.
61
The Florida
legislature enacted reforms which effectively abolish the use of
eminent domain for private economic development.
62
In
addition, Florida citizens passed a referendum to amend the
state constitution so that enactment of any law that allows the
transfer to a private party of any private property taken by
eminent domain would require a three-fifths supermajority vote
of the state legislature.
63
Nevada has also enacted strong limitations on the use of
eminent domain. Projects that transfer the property to a private
person/entity are specifically excluded from permitted public
uses. Limited exceptions in the legislation permit transfer to a
private entity for such uses as utilities, railroads, airports or to
abate an immediate threat to public safety.
64
State Supreme Courts have also recently addressed the
constitutionality of condemnation for private economic
development interpreting their own state constitutions. Shortly
after the Connecticut Supreme Court decided Kelo, the
Michigan Supreme Court decided Wayne v. Hathcock.
65
The
project in Hathcock provided for construction of a conference
center, hotel and a recreational facility with private property to
be condemned and transferred to private parties. The project
2009/In the Land of Kelo/82
was estimated to create 30,000 jobs and $350 million in tax
revenues. The Michigan Supreme Court held that the taking
violated the public use limitation contained in the Michigan
State Constitution and explicitly overruled the state’s landmark
Poletown decision, effectively prohibiting the use of eminent
domain for private economic development.
66
The Michigan legislature subsequently endorsed Hathcock
by adopting Joint Resolution E proposing an amendment to the
Michigan State Constitution that provides: “‘Public Use’ does
not include the taking of private property for transfer to a
private entity for the purpose of economic development or
enhancement of tax revenues.”
67
The Supreme Courts of
Ohio
68
and Oklahoma
69
have also recently held that takings for
private economic development are unconstitutional under their
state constitutions.
In addition, many states have addressed the issue of blight
removal projects in response to Kelo (even though Kelo did not
deal with blight removal). For instance, under revisions
adopted by the Ohio legislature, a “blighted area” is now
defined as “an area in which at least seventy percent of the
parcels are blighted parcels.”
70
Florida explicitly prohibits the
use of eminent domain for blight removal.
71
If the
Connecticut legislature intended to restrict the power of
eminent domain for economic development or blight projects,
there are many ways this could have been accomplished.
CONCLUSION
In the wake of Kelo, Connecticut enacted revisions to its
statutes governing both municipal economic development and
blight removal. These reform measures may at first glance
appear to provide protection to property owners in the state.
However, an examination of the substance of the state’s reform
83/Vol.22/North East Journal of Legal Studies
measures reveals that the legislature has provided no
substantive limitation on the state’s power of eminent domain.
In fact, in the area of blight condemnation, the state’s eminent
domain power may well have been expanded. In the area of
takings for private economic development, Connecticut
legislative reform provides no meaningful protection to
property owners.
ENDNOTES
1
545 U.S. 469 (2005).
2
CONN. GEN. STAT. ANN. § 8-193 (West 2001).
3
MAGNA CARTA (1297 version, § 29) available at
http://www.archives.gov/exhibits/featured_documents/magna_carta/ translation.html (“No freeman is to be . . .
disseised of his free tenement . . . save by lawful judgment of his peers, or by the law of the land.”).
4
See generally JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF
PROPERTY RIGHTS 43, 54 (1992).
5
VanHorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310 (1795).
6
Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (emphasis deleted). It is interesting to note that this
basic legal principle was quoted in the Kelo majority opinion, 545 U.S. at 478 n.5, and in Justice
O’Connor’s dissent. Id. at 494 (O’Connor, J., dissenting).
7
1 NICHOLS’ THE LAW OF EMINENT DOMAIN § 1.12 (Julius L. Sackman et al. eds. rev. 3d ed. 2008).
8
U.S. CONST. amend. V.
9
Ely, supra note 4, at 31.
10
Kelo v. City of New London, 545 U.S. 469, 497 (2005) (O’Connor, J. dissenting ) (internal citations omitted).
11
See infra note 25.
12
See generally 2A NICHOLS’ THE LAW OF EMINENT DOMAIN § 7.06 (Julius L. Sackman et al. eds. rev. 3d ed.
2008).
13
In Wayne v. Hathcock, the Michigan Supreme Court overturned the landmark case of Poletown Neighborhood
Council v. Detroit, citing with approval Justice Ryan’s Poletown dissent for its well-reasoned historical analysis of
three established categories of permitted transfers to private entities: (a) a transfer to a private party for
2009/In the Land of Kelo/84
instrumentalities of commerce such as a railroad; (b) a transfer to a private party subject to public oversight
following the transfer, such as for a water pipeline owned by a regulated company; and (c) a transfer to a private
party based on “facts of independent public significance” such as taking property for slum clearance. Wayne v.
Hathcock, 684 N.W.2d 765, 781-83 (Mich. 2004). See also Kelo, 545 U.S. at 497-98 (O’Connor, J., dissenting).
14
Kelo, 545 U.S. at 472. Pfizer acquired the New London Mills Site from the City of New London in 1998 and
opened its research facility in 2001. Kelo v. City of New London, 843 A.2d 500, 508-09 (Conn. 2004).
15
The focus of Kelo is on these private commercial uses designated in the development plan. Note, however, that
the development plan also provided for a public riverwalk through the development, a state park, and the possibility
of a new U.S. Coast Guard Museum, all of which would constitute public uses under long-standing constitutional
theory.
16
Kelo, 545 U.S. at 474-75. According to the NLDC, the development was expected to generate: (a) between 518
and 867 construction jobs; (b) between 718 and 1362 direct jobs; (c) between 500 and 940 indirect jobs; and (d)
between $680,000 and $1,249,843 in annual property tax revenues for the City. Kelo, 843 A.2d at 510.
17
At the time of the trial in the Connecticut Superior Court, the NLDC was negotiating with Corcoran Jennison, a
private developer, to enter into a ninety-nine year ground lease of property designated as parcels 1, 2, and 3 in the
development plan for a rental fee of one dollar per year. Id. at 510.
18
Id. at 511.
19
Susette Kelo had made extensive improvements to her house. Another property owner, Wilhelmina Dery, was
born in her Fort Trumbull home in 1918 and had lived there her whole life. Kelo, 545 U.S. at 475.
20
CONN. CONST. art. I, § 11 (“The property of no person shall be taken for public use, without just compensation
therefor.”). Note that the court did not separately address the state constitutional argument because the plaintiffs did
not assert that the Connecticut state constitution’s public use clause offered them any greater protection than that of
the federal constitution. Kelo, 843 A.2d at 522 n.29.
21
The Fifth Amendment to the U.S. Constitution provides in relevant part: “No person shall be . . . deprived of life,
liberty, or property, without due process of law; nor shall private property be taken for public use, without just
compensation.” The Fifth Amendment’s public use restriction has been made applicable to the states through the
Fourteenth Amendment to the U.S. Constitution. Mo. Pac. Ry. v. Nebraska, 164 U.S. 403, 417 (1896); Chi.
Burlington & Quincy Rd. Co. v Chicago, 166 U.S. 226, 236 (1897).
22
. Kelo, 843 A.2d at 528. At the Connecticut Supreme Court, Kelo was a 4-3 decision. Justice Zarella’s dissent
takes the position that private economic development projects do not constitute public use in the absence of clear and
convincing evidence that the property will actually be developed to achieve a public purpose. Id. at 600-601
(Zarella, J., dissenting). Note also that in upholding the constitutionality of the takings in New London, the court
specifically singled out the case of Poletown Neighborhood Council v. Detroit. Id. at 528 (majority opinion) (citing
Poletown, 304 N.W.2d 455 (1981)). Poletown is a landmark case which upheld, under the Michigan State
Constitution, the taking of private homes for the construction of a major car manufacturing assembly plant in Detroit.
85/Vol.22/North East Journal of Legal Studies
Shortly after the Connecticut Supreme Court released its decision in Kelo, however, Poletown was overturned by the
Michigan Supreme Court in Wayne v. Hathcock. 684 N.W.2d 765 (Mich. 2004). See infra note 66.
23
Kelo, 545 U.S. at 477.
24
Id.
25
See id. at 479-80 (quoting, in part, Hous. Auth. v. Midkiff, 467 U.S. 229, 244 (1984). (“[T]his ‘Court long ago
rejected any literal requirement that condemned property be put into use for the general public.’ Indeed, while many
state courts in the mid-19th century endorsed ‘use by the public’ as the proper definition of public use, that narrow
view steadily eroded over time. Not only was the ‘use by the public’ test difficult to administer (e. g., what proportion
of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and
always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at
the close of the 19th century, it embraced the broader and more natural interpretation of public use as ‘public
purpose.’” (internal citations omitted)).
26
See id. at 488 (Quoting. Midkiff, 467 U.S. at 242-43) ( “When the legislature’s purpose is legitimate and its
means are not irrational, our cases make clear that empirical debates over the wisdom of takings—no less than
debates over the wisdom of other kinds of socioeconomic legislation—are not to be carried out in the federal
courts.”).
27
Berman v. Parker, 348 U.S. 26 (1954). In Berman, the Court upheld a redevelopment plan for a blighted area of
Washington, D.C. Under the plan, the area would be condemned and part of it utilized for the construction of
streets, schools, and other public facilities. The remainder of the land would be leased or sold to private parties for
the purpose of redevelopment, including the construction of low-cost housing. The owner of a department store
located in the area challenged the condemnation, arguing that his store was not itself blighted and that the creation of
a “better balanced, more attractive community” was not a valid public use. The Court rejected his constitutional
argument and unanimously held that the taking was a public use.
28
See Kelo, 545 U.S. at 480-81.
29
Midkiff, 467 U.S. 229 (1984) (holding that the abolition of a land oligopoly was a public benefit).
30
Kelo, 545 U.S. at 481-82.
31
Id. at 485.
32
Chief Justice Rehnquist, and Justices O’Connor, Scalia, and Thomas dissented vigorously from the majority
opinion. See id. at 494 (O’Connor, J., dissenting) (“To reason, as the Court does, that the incidental public benefits
resulting from the subsequent ordinary use of private property render economic development takings ‘for public use’
is to wash out any distinction between private and public use of property.”); see also id. at 506 (Thomas, J.,
dissenting) (“If such ‘economic development’ takings are for a ‘public use,’ any taking is, and the Court has eras ed
the Public Use Clause from our Constitution . . . .”). Justice O’Connor also memorably reiterated her concern
expressed at oral argument, asserting “[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-
Carlton, any home with a shopping mall, or any farm with a factory.” Id. at 503 (O’Connor, J., dissenting).
2009/In the Land of Kelo/86
33
Id. at 489 (“We emphasize that nothing in our opinion precludes any State from placing further restrictions on its
exercise of the takings power. Indeed, many States already impose ‘public use’ requirements that are stricter than the
federal baseline. Some of these requirements have been established as a matter of state constitutional law, while
others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be
exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent
domain to promote economic development are certainly matters of legitimate public debate.”).
34
For an extensive summary of legislative reform and other initiatives adopted by states in response to Kelo, see the
website of the National Conference of State Legislatures at http://www.ncsl.org. See also
http://www.castlecoalition.org; http://www.ij.org.
35
See, e.g., Press Release, Castle Coalition, Polls Remain Clear, Public Opposes Eminent Domain Abuse, (Mar. 27,
2006), available at http://www.castlecoalition.org/ index.php?option=com_content&task=view&id=260 (last visited
Nov. 13, 2008).
36
Quinnipiac University Poll, July 19-25, 2005, Quinnipiac University Polling Institute, available at
http://www.quinnipiac.edu/ x1296.xml?ReleaseID=821 (last visited Nov. 13, 2008).
37
Conn. Pub. Act 07-141 (adopted June 25, 2007) and Conn. Pub. Act 07-207 (adopted July 10, 2007). The
Connecticut legislature had earlier responded to the Kelo U.S. Supreme Court case in 2006 by creating an Office of
Ombudsman for Property Rights. CONN. GEN. STAT. ANN. § 48-50 et seq. (West Supp. 2008). See infra note 50.
38
CONN. GEN. STAT. ANN. § 8-186 (West 2001). (Note, this statute has not been modified since the Kelo case.) (“It
is found and declared that the economic welfare of the state depends upon the continued growth of industry and
business within the state; . . . [the acquisition and improvement of property] often cannot be accomplished through
the ordinary operations of private enterprise at competitive rates of progress and economies of cost; that permitting
and assisting municipalities to acquire [property] . . . are public uses and purposes for which public moneys may be
expended . . . .”) (The statutes governing economic development are compiled in Chapter 132 of the Connecticut
General Statutes.).
39
CONN. GEN. STAT. ANN. § 8-189 (West 2001). (Included in the detailed requirements of the project plan are “a
statement of the number of jobs which the development agency anticipates would be created by the project . . .,” a
finding that the property will be used “principally for industrial or business purposes,” and a finding that “the project
will contribute to the economic welfare of the municipality and the state . . . .”) (This statute was subsequently
amended by Conn. Pub. Act 07-141 § 10 which added to the required contents of a development plan but did not
delete any of the plan requirements in effect under prior law. See infra note 45.).
40
CONN. GEN. STAT. ANN. § 8-191(a) (West 2001). (Minor changes were made to this statute by Conn. Pub. Act 07-
141 § 11.).
41
Id.
42
CONN. GEN. STAT. ANN. § 8-193(a) (West 2001). (This statute was subsequently amended by Conn. Pub. Act 07-
141 § 1. See infra note 50.).
87/Vol.22/North East Journal of Legal Studies
43
Id.
44
Conn. Pub. Act 07-141 § 1 (codified at CONN. GEN. STAT. ANN. § 8-193(b)(1) (West Supp. 2008)) (“[N]o real
property may be acquired by eminent domain pursuant to this subsection for the primary purpose of increasing local
tax revenue.”). See also Conn. Pub. Act 07-141 § 10 (codified at CONN. GEN. STAT. ANN. § 8-189(a)(14)(D) (West
Supp. 2008).
45
Conn. Pub. Act 07-141 § 10 (codified at CONN. GEN. STAT. ANN. § 8-189(a) (West Supp. 2008)) (“The
project plan shall meet an identified public need and include . . . (12) a description of the public benefits
of the project including, but not limited to . . . (B) the estimated property tax benefits; . . . (G) a general
description of the project’s intended role in increasing or sustaining market value of land in the
municipality; (H) a general description of the project’s intended role in assisting residents of the
municipality to improve their standard of living; and (I) a general statement of the project’s role in
maintaining or enhancing the competitiveness of the municipality; . . . [and ] (14) a preliminary statement
describing the proposed process for acquiring each parcel of real property, including findings that (A)
public benefits resulting from the development plan will outweigh any private benefits; (B) existing use
of the real property cannot be feasibly integrated into the overall development plan for the project; (C)
acquisition by eminent domain is reasonably necessary to successfully achieve the objectives of such
development plan; and (D) the develop- ment plan is not for the primary purpose of increasing local tax
revenues . . . .”).
46
Id.
47
Id.
48
Id.
49
See Kelo v. City of New London, 545 U.S. 469, 474 (2005). (The development plan, as approved by the City of
New London, reflected the goals of the project as creating jobs, generating tax revenue, and helping to build
momentum for the revitalization of downtown New London.).
50
Note that other statutory changes were made to Chapter 132 (governing municipal economic development) but
they do not provide any meaningful restriction on the municipality’s power to exercise eminent domain. See Conn.
Pub. Act 07-141 § 1 (codified at CONN. GEN. STAT. ANN. § 8-193 (West Supp. 2008) (affording a property owner a
right of first refusal to purchase his property if it will not be used for its intended purpose or some other public use;
imposing a ten-year time limitation on the exercise of eminent domain after the first property in the development area
is acquired; and a requirement for a public hearing to use eminent domain for an economic development project and
approval by two-thirds of the legislative body). See also Conn. Pub. Act 07-141 § 8 (codified at CONN. GEN. STAT.
ANN. § 8-129(a)(2) (West Supp. 2008) (compensation payable for property taken for economic development is
increased to 125% (or 150% under certain circumstances) of its appraised value.). In addition, the Connecticut
Legislature in 2006 created the Office of the Ombudsman for Property Rights. The duties imposed on the
Ombudsman include: providing assistance regarding eminent domain procedures to public agencies and private
property owners, identifying governmental actions that have potential eminent domain implications, providing
information to citizens about eminent domain law and their rights, and recommending changes that the Ombudsman
2009/In the Land of Kelo/88
thinks should be made to the state’s eminent domain law. The Office of Ombudsman for Property Rights is governed
by CONN. GEN. STAT. ANN. § 48-50 et seq. (West Supp. 2008).
51
See generally Kelo, 545 U.S. at 502 (O’Connor, J., dissenting) (citing Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1025-26 n.12 (1992)) (“[I]t is difficult to envision anyone but the “stupid staff[er]” failing it.”).
52
CONN. GEN. STAT. ANN. § 8-124 et seq. (West Supp. 2008). (The statutes governing blight eradication are
compiled in Chapter 130 of the Connecticut General Statutes.).
53
Conn. Pub. Act 07-141 § 2 (codified at CONN. GEN. STAT. ANN. § 8-127a (West Supp. 2008). (“No real property
may be acquired by a redevelopment agency by eminent domain pursuant to section 8-128 under a redevelopment
plan under this chapter for the primary purpose of increasing local tax revenue.”) Note that other statutory changes
were made to the statutes governing blight removal but they do not provide any meaningful restriction on a
municipality’s power to exercise eminent domain. There is now a requirement that the public benefits outweigh any
private benefits from the project; the current use of the property cannot be feasibly integrated into the project plan;
and the taking is reasonably necessary to achieve the plan’s objectives. Id. Other reforms include: imposing a ten
year time limitation on the exercise of eminent domain after the first property is acquired under the plan; and
affording a property owner a right of first refusal to purchase his property if it will not be used for its intended
purpose or some other public use. Id. In addition, compensation payable is increased to 125% of appraised value
under certain circumstances. Conn. Pub. Act 07-141 § 8 (codified at CONN. GEN. STAT. ANN. § 8-129(a)(2) (West
Supp. 2008)).
54
CONN. GEN. STAT. ANN. § 8-128(a) (West Supp. 2008). This section is unchanged by recent reform but has been
re-numbered.
55
CONN. GEN. STAT. ANN. § 8-125(2) (West Supp. 2008). For purposes of the blight removal statutes, a
redevelopment area means one that is “deteriorated, deteriorating, substandard or detrimental to the safety, health,
morals or welfare of the community . . . . and may include structures not in themselves substandard or insanitary
which are found to be essential to complete an adequate unit of development, if the redevelopment area is
deteriorated, deteriorating, substandard or detrimental to the safety, health, morals or welfare of the community.”
This section is unchanged by recent reform but has been re-numbered.
56
Conn. Pub. Act 07-207 § 1 (codified at CONN. GEN. STAT. ANN. § 8-125(7) (West Supp. 2008) (“‘Deteriorated’
or ‘deteriorating’ with respect to a redevelopment area means an area within which at least twenty per cent of the
buildings contain one or more building deficiencies or environmental deficiencies, including, but not limited to: (A)
Defects that warrant clearance; (B) conditions from a defect that are not correctable by normal maintenance; (C)
extensive minor defects that collectively have a negative effect on the surrounding area; (D) inadequate original
construction or subsequent alterations; (E) inadequate or unsafe plumbing, heating or electrical facilities; (F)
overcrowding or improper location of structures on land; (G) excessive density of dwelling units; (H) conversion of
incompatible types of uses, such as conversion of a structure located near family dwelling units to rooming houses;
(I) obsolete building types, such as large residences or other buildings which because of lack of use or maintenance
have a blighting influence; (J) detrimental land uses or conditions, such as incompatible uses, structures in mixed
use, or adverse influences from noise, smoke or fumes; (K) unsafe, congested, poorly designed, or otherwise
89/Vol.22/North East Journal of Legal Studies
deficient streets; (L) inadequate public utilities or community facilities that contribute to unsatisfactory living
conditions or economic decline; or (M) other equally significant building deficiencies or environmental
deficiencies.”).
57
CONN. GEN. STAT. ANN. § 8-128 (West 2001).
58
Norwood v. Horney, 853 N.E.2d 1115, 1144 n.13, 1145-46 (Ohio 2006). The Norwood Court overturned the
taking of homeowners’ property based on a local ordinance defining blight to include a “deteriorating” area. The
Court held the term deteriorating area to be unconstitutionally void for vagueness and offending due process r ights:
“In essence, ‘deteriorating area’ is a standardless standard.” Id. at 1145-46. See also infra note 68.
59
In re W. 41st St. Realty v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (N.Y. App. Div. 2002).
60
City of Las Vegas Downtown Redev. Agency v. Pappas, 76 P.3d 1 (Nev. 2003).
61
See supra note 34.
62
FLA. STAT. § 73.013 (enacted by HB 1567 effective May 11, 2006) (providing in part: “(1) Notwithstanding any
other provision of law . . . ownership or control of property acquired pursuant to [an eminent domain] petition may
not be conveyed by the condemning authority or any other entity to a natural person or private entity, by lease or
otherwise, except that ownership or control of property acquired pursuant to such petition may be conveyed, by lease
or otherwise, to a natural person or private entity [for common carrier services, public transportation, public
infrastructure].”).
63
Florida legislative referendum passed by 69% vote in 2006. See Nat’l Conference of State Legislatures,
http://www.ncsl.org/ncsldb/elect98/irsrch.cfm?recid=2775 (last visited Nov. 13, 2008).
64
Nevada Assembly Bill No. 102, § 4 amending NEV. REV. STAT. § 37.010 (adopted May 23, 2007) (This bill
provides in part: “Notwithstanding any other provision of law and except as otherwise provided in this subsection,
the public uses for which private property may be taken by the exercise of eminent domain do not include the direct
or indirect transfer of any interest in the property to another person or entity. . . .” Transfers to a private party are
permitted in limited circumstances including use for a utility, railroad, airport and the like, and a taking required to
abate an immediate threat to the safety of the public or remediate hazardous waste. The Nevada Legislature also
adopted in Assembly Joint Resolution 3 a proposed amendment to the Nevada Constitution incorporating the
provisions of Assembly Bill No. 102.).
65
Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004).
66
Id. at 787 (explicitly overruling Poletown Neighborhood Council v. Detroit, 304 N.W.2d 455 (Mich. 1981). In
Poletown, the Michigan court held constitutional the condemnation of private residential properties for transfer to a
private corporation for the construction of a General Motors assembly plant in Detroit which was intended to add
jobs and taxes to both the city and state.
67
Joint Resolution E adopted by Michigan Legislature on December 13, 2005.
2009/In the Land of Kelo/90
68
Norwood v. Horney, 853 N.E. 2d 1115 (Ohio 2006). In addition to holding the definition of deteriorated and
deteriorating areas to be void for vagueness, Norwood held that providing an economic benefit to the City, standing
alone, does not satisfy the public use requirement of the Ohio State Constitution. In Norwood, the City condemned
property in an area that it determined to be “deteriorating” to transfer it to a private developer for construction of
apartments, condominiums, office space, retail space, and City-owned parking garages. The City estimated the
project would result in nearly $2 million in annual revenues for it. The Norwood court cited with approval the
analysis of Hathcock, the dissenting opinions of the Supreme Court Justices in Kelo, and the dissenting opinions of
the Connecticut justices in Kelo. Id. at 1140-41. See supra note 58.
69
Muskogee County v. Lowery, 136 P.3d 639 (Okla. 2006); see also id. at 650-51 (“[W]e hold that economic
development alone does not constitute a public purpose and therefore does not constitutionally justify the County’s
exercise of eminent domain . . . . [W]e view the transfer of property from one private party to another in furtherance
of potential economic development or enhancement of a community in the absence of blight as a purpose, which
must yield to our greater constitutional obligation to protect and preserve the individual fundamental interest of
private property ownership.”).
70
OHIO REV. CODE ANN. § 1.08(A)(2007). Contrast this with Connecticut’s definition of blight as an area within
which at least twenty percent of the buildings are deficient. CONN. GEN. STAT. ANN. § 8-125(7) (West Supp. 2008)
(adopted by Conn. Pub. Act 07-207 § 1).
71
FLA. STAT. § 73.014(2) (enacted by HB 1567 effective May 11, 2006) (providing in part: “Notwithstanding any
other provision of law . . . the state . . . may not exercise the power of eminent domain for the purpose of preventing
or eliminating slum or blight conditions . . . .”).