Case 12
On 15 December 1791, ratification of the Bill of Rights was completed, which included the 5th Amendment to the U.S. Constitution. It reads, in part, "...nor shall private property be taken for public use, without just compensation." This passage, known as "the takings clause"' was extended to the states during reconstruction on 9 July 1868 with final ratification of the 14th Amendment to the U.S. Constitution.
Over the course of U.S. history, cases at all levels of government challenging the power of eminent domain–the right of a government to seize private property for public use, in exchange for payment of fair market value–hinged on the courts' interpretation of the term "public use." In 1925, the U.S. Supreme Court ruled in Berman v. Parker that government may dispose of property obtained through eminent domain to a private developer, and in 1984 the Court held in Hawaii Housing Authority v. Midkiff that deference to the legislature's "public use" determination is required "until it is shown to involve an impossibility." Through Midkiff and other cases, the Court broadened the definition of public use over the decades since Berman to include nearly all purposes that states can plausibly put forth as "public." These include growth management, aesthetics, historic preservation, rural and agricultural preservation, urban revitalization and transferable development rights.
In February 2005, the U.S. Supreme Court heard its latest case concerning the definition of "public use" –Kelo et al. v. City of New London et al. The City of New London, Connecticut approved a development plan that, in the words of the Supreme Court of Connecticut, was "projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas." In assembling the land needed for this project, the City's development agent purchased property from willing sellers and proposed to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented in this case is whether the City's proposed disposition of this property qualifies as a "public use" within the meaning of the takings clause. By precedent, the seizure of blighted property for redevelopment is, and has long been, considered constitutional. Federal urban renewal programs of the latter half of the 20th century rested on this finding. Would, however, this precedent be extended by the Court to apply to properties in areas not considered blighted?
Susette Kelo, the named party in the case, has lived in the Fort Trumbull neighborhood of New London–part of the redevelopment area–since 1997. She made extensive improvements to her house, which she prizes for its water view. Wilhelmina Dery, who was also a party in the case, was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles has lived in the house since they married some 60 years ago. In all, the nine parties in the case own 15 properties in Fort Trumbull. Ten of the parcels are occupied by the owner or a family member and the other five are held as investment properties. There is no allegation that any of these properties is blighted or otherwise in poor condition. Rather, they were condemned only because they happen to be located in the development area.
On 23 June 2005, the Court delivered its opinion in Kelo, ruling in favor of the City. The Court reaffirmed Midkiff, deferring again to state legislatures. It ruled that redevelopment, ostensibly only to increase the local tax base, fell under the wide rubric of "public use".
The public response was immediate. It seemed many, even those who traditionally champion an expanded role for government, were shocked by the opinion. Had the court failed to protect the few from the tyranny of the many (in this case the citizens of New London)? Subsequently, and with a swiftness rare by Congress, the House of Representatives passed the Private Property Rights Protection Act that will prohibit any state or municipality from using federal funds for any project in which economic development is used as a justification for exercising eminent domain