Irrelevance of “Public Use” in State Eminent Domain Reforms
| Author | Amanda M. Olejarski |
| Published date | 01 October 2018 |
| Date | 01 October 2018 |
| DOI | 10.1177/0275074017729035 |
| Subject Matter | Articles |
research-article2017
Article
American Review of Public Administration
2018, Vol. 48(7) 631 –643
Irrelevance of “Public Use” in State Eminent
© The Author(s) 2017
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https://doi.org/10.1177/0275074017729035
DOI: 10.1177/0275074017729035
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Amanda M. Olejarski1
Abstract
“Public use” is a constitutional limitation on the governmental authority to take private property using eminent domain. This
study finds that it is irrelevant, an artifact of the federal constitution, in state reforms enacted in the last decade. Expansive
language permitting economic development and private development have rendered public use to be merely symbolic.
Forty-six states enacted takings reforms following Kelo v. New London, a landmark U.S. Supreme Court decision in 2005;
approximately 80% of those states allow economic or private takings while also invoking the public use. This mixed-method
analysis and normative theoretical grounding explain stark contradictions in the prevailing reforms nationwide, resulting in
substantive implementation challenges that may be mitigated by sensitivity to regime values, one of which is property.
Keywords
eminent domain, discretion, public use, economic and private development
Eminent domain is the constitutional right to take private
an increase in takings. Moreover, contrary to public percep-
property for public use, provided that property owners are
tion, public use has never been interpreted by the Court as
paid just compensation. Governments are empowered requiring an actual use by the public; just the opposite has
through the Takings Clause of the Fifth Amendment to the
been the law since its first ruling in 1896. In the decade since
U.S. Constitution: “Nor shall private property be taken for
the landmark Kelo v. New London (2005) decision, states
public use, without just compensation.” The Takings Clause,
passed takings reforms en masse that explicitly permitted eco-
therefore, provides two constitutional limitations on the gov-
nomic and private development takings and relegated the sta-
ernmental use of eminent domain: public use and just com-
tus of the public use limitation to being a symbolic artifact of
pensation. Because the U.S. Supreme Court has ruled that
the U.S. Constitution. The implementation problem presented
just compensation means fair market value of the home,
for the field is that these reforms also require the economic and
business, or land being taken by eminent domain, the public
private development takings to be in the public use, which has
use requirement is the only normative constitutional limita-
lost all substantive meaning, as these findings show.
tion on governmental power and authority. Grounding our
Rohr (1989) argues that administrators should use Court
understanding of the Takings Clause in the theory of regime
decisions, holistically beyond the majority opinion, for
value of property (Rohr, 1989) helps mitigate takings imple-
reflecting on their discretionary power to implement public
mentation challenges revolving around public use as an
policy, in large part because they are critical arguments on
actionable constitutional principle. This research seeks to
constitutional problems. Using the law as Rohr suggests
answer the following question: What is the context of con-
uncovers the values of the people, the regime values—one of
temporary takings reforms regarding economic and private
which is property. The Court’s takings rulings are not a
development takings?—Using the regime values approach,
departure from precedent, but what has changed rapidly is
is public use still relevant for implementing eminent domain
the use of takings in practice post-Kelo. By igniting debates
policies? This comprehensive study is important to the field
on the interpretation of public use, the decision brought to
of public administration because it explains a high-stakes,
the forefront economic, and especially private, development
complex policy environment. It is relevant to practicing
takings that were not as prevalent pre-Kelo. At the Court’s
managers charged with making decisions about takings and
those interested in community development. Scholars should
1West Chester University, PA, USA
find value in advancing the normative understanding of how
regime values can still apply in our constitutional republic.
Corresponding Author:
Amanda M. Olejarski, Associate Professor, Department of Public Policy
As a limitation on governmental action, however, the Court
and Administration, West Chester University, 50 Sharpless Street,
has consistently expanded public use to include economic and
West Chester, PA 19380, USA.
private development over the last 60 years, paving the way for
Email: AOlejarski@wcupa.edu
632
American Review of Public Administration 48(7)
urging to enact stricter reforms, states responded with an
To show the gradual erosion of public use as a constitu-
expanse of these types of eminent domain, while also requir-
tional limitation in practice, the next section begins with a
ing the taking to be for public use, conflicting the values of
brief description of eminent domain, followed by an over-
public use, private property, and economic and private devel-
view of landmark U.S. Supreme Court takings precedents
opment in theory and practice. “Not all values are equal,”
and the current constitutional guide, Kelo v. New London. An
writes Rohr (1989), and under the regime values method,
examination of the post-Kelo environment shows how tak-
property is a “principle held for several generations by the
ings are practiced post-Kelo, as well as the analysis of state
overwhelming majority of the American people” (pp. 63,
eminent domain reforms. Scholarship brings forth imple-
74). A central tenet of the regime values argument is admin-
mentation challenges for those studying and working in the
istrators using their discretion to take the opportunity to do
field, pointing to regime values as a theoretical grounding
better by advancing or impeding the eminent domain pro-
that can restore practicality to public use. Implications for
cess, the high road, rather than using it to stay out of trouble,
research and practice apply the regime values approach to
the low road. Public use is a symbol of property in the
the study’s findings. This work improves constitutional dis-
Constitution that should be restored through administrators’
course in public administration because it focuses on the
discretionary authority in the implementation process via
challenges that result when constitutional principles conflict
deliberate thoughtfulness of normative regime values.
with policy design and policy implementation.
This research examines the practical relevance of public
use in implementing eminent domain by way of recent
Economic and Private Development
reforms to explore the economic and private development
Takings
takings environment. Empirically studying all state reforms
passed in the decade following Kelo v. New London facili-
Eminent domain for economic and private development is
tates analysis through the normative framework of the regime
constitutional, per the U.S. Supreme Court’s decisions
value of property and contemporary takings uses of eco-
from the first case on the issue in 1896 through the most
nomic and private development. An analysis of all 46 states’
recent case, Kelo v. New London, in 2005. The following
reforms shows that the constitutional public use requirement
analysis of takings scholarship cultivates a fundamental
for eminent domain is being undermined by provisions
understanding of technical aspects of economic and pri-
allowing for economic and private development takings
vate takings. Han (2008) argues that there is a distinction
because they simultaneously invoke public use. Economic
between economic development and urban revitalization
development takings include increased jobs and tax growth,
(i.e., blight removal), the latter of which he maintains ties
and private development takings involve transferring prop-
more closely with the public use requirement. Cohen
erty between individuals, often including developers. (2006) advances this, noting that economic development
Historically, pre-Kelo, the Court ruled that economic and pri-
takings should be prohibited, absent a direct public use.
vate development takings are constitutional; the 2005 Kelo
Boudreaux (2005) holds a similar stance on private devel-
decision was not a new constitutional question. The policy
opment, or eminent domain involving a private gain. Given
outcomes were, however, because of the resulting reforms
the climate of governments being required to do more with
that diminish the regime value of property to status as a con-
less, quasi-public organizations and public-private part-
stitutional artifact, rather than a principle.
nerships involving developers are increasing as a means to
From a policy-design-implementation perspective, the
producing tax revenue or bring jobs to the community.
dichotomous nature of the post-Kelo eminent domain environ-
Some scholars (Farjad, 2007; Salkin & Lucero, 2005) sup-
ment challenges practitioners’ ability to implement takings
port eminent domain for economic development...
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