Vol. 28, No. 5 #3 (October 2005). Kelo v. City of New London: Economic Development as a Public Use under the Fifth Amendment.

• Author: By James L. Radda

Wyoming Bar Journal

2005.

Vol. 28, No. 5 #3 (October 2005).

Kelo v. City of New London: Economic Development as a Public Use under the Fifth Amendment

WYOMING LAWYEROctober 2005/Vol. XXVIII, No. 5Kelo v. City of New London: "Economic Development" as a "Public Use" under the Fifth AmendmentBy James L. Radda

The Public Use Clause, which appears in the last line of the Fifth Amendment, states, "nor shall private property be taken for public use, without just compensation."(fn1) Only the exercise of eminent domain for a public use, then, satisfies that requirements of the Fifth Amendment. But what exactly is a public use? Is public use synonymous with public purpose? Does public use include economic development? Is economic development a public use even in situations where the condemned land is transferred to a private developer? Stated another way, can the government, consistent with the Public Use Clause, "transfer[] citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes[?]"(fn2)

The United States Supreme Court recently answered these questions in Kelo v. City of New London, Connecticut,(fn3) a case in which the Court ruled that the exercise of eminent domain by the City of New London, for the stated purpose of economic development, satisfied the requirement of the Fifth Amendment that property be taken for a "public use."

As the opinion in Kelo explains, the City's decision to condemn followed decades of economic decline, resulting in the designation of the City in 1990 as a "distressed municipality." The City was struck an economic blow in 1996 with the closure of the Naval Undersea Warfare Center, which had been located in the Fort Trumbull area of the City and had employed 1,500 people. By 1998, the City's unemployment rate was double that of the State, and its population of just under 24,000 people was at its lowest since 1920.(fn4)

In its attempt to help revitalize New London, the State in 1998 authorized two bond issues - $5.35 to support the City's planning activities(fn5) and $10 million to fund the creation of a state park in the Fort Trumbull area of the City. Soon thereafter, the pharmaceutical company Pfizer announced plans to build a $300 million research center adjacent to the Fort Trumbull area.(fn6)

Hoping that Pfizer would attract new business to the area, the City embarked on a plan to redevelop the Fort Trumbull area. After...