What's the Use? the Court Takes a Stance on the Public Use Doctrine in Kelo v. City of New London - Randy J. Bates, Ii
| Citation | Vol. 57 No. 2 |
| Publication year | 2006 |
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What's the Use? The Court Takes a Stance on the Public Use Doctrine in Kelo v. City of New London
By a 5-4 vote1 in Kelo v. City of New London,2 the United States Supreme Court upheld the constitutionality of public takings for the purpose of private economic development under the Fifth Amendment's3 Public Use Clause.4 In holding that the takings were valid, the Court concluded that it must defer to the state legislature's judgment because the takings were beneficial to the public and were within the state's police power.5
I. Factual Background
The City of New London was in serious trouble. In 1990 a Connecticut state agency labeled the City of New London (the "City") a "distressed municipality." In 1996 the federal government closed the Naval Undersea Warfare Center, leaving 1500 residents without employment. In 1998 New London's unemployment rate was almost double the state average, and the City's population dropped to pre-Great Depression levels.6
The City had to do something to save itself, and that something came in the form of an economic revitalization plan for the City's Fort Trumbull area. To save the City, state and local officials reactivated the New London Development Corporation ("NLDC"), a private, nonprofit entity7 whose main mission was to assist the City in revitalizing New London.8
In January 1998 the State of Connecticut authorized two multi-million dollar bonds to support NLDC's planning activities and to create a Fort Trumbull State Park. Coincidentally, the pharmaceutical giant Pfizer Inc. announced its plans to build a $300 million global research facility on a site immediately adjacent to the Fort Trumbull area. Hoping to capitalize on Pfizer's presence, NLDC continued to develop its plan for the area and conducted neighborhood meetings to apprise the community of the rejuvenation process. After obtaining the city council's approval, NLDC submitted its plans to the relevant state agencies, which approved NLDC's findings. NLDC, as the City's development agency,9 moved into the next stage of development, securing the land for the project.10
NLDC's development plan divided the ninety-acre Fort Trumbull area11 into seven parcels.12 The two parcels that were the subject of the litigation were Parcel 3 and Parcel 4. Parcel 3 contained 90,000 square feet of research and development office space; Parcel 4 was divided into 4A and 4B. Parcel 4A provided support for the state park, either through parking or retail services, and a renovated marina was set for Parcel 4B.13
When the City approved the development plan, it also authorized NLDC to exercise the power of eminent domain in the City's name. NLDC was able to acquire most of the property without invoking the power of eminent domain; however, NLDC was unable to successfully negotiate with the petitioners. Consequently, in November 2000, NLDC initiated condemnation proceedings against the petitioners.14
In all, the nine petitioners15 owned fifteen properties in the development area.16 Four petitioners owned property in Parcel 3, and eleven owned property in Parcel 4A.17 Of the fifteen properties, ten were occupied by the owner or the owners' family members, and the other five were investment properties.18 One petitioner, Wilhelmina Dery, had lived with her husband in their house since 1946.19 Mrs. Dery was born there in 1918, and her family lived there for over a hundred years.20 Additionally, the petitioners' properties were not "blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area."21
In December 2000 the petitioners filed suit in the New London Superior Court, claiming, inter alia, that the takings violated the "public use" restriction in the Fifth Amendment. After a seven-day bench trial, the trial court allowed the takings of the Parcel 3 properties (four properties); however, the trial court issued a permanent restraining order, disallowing the takings in Parcel 4A (eleven properties). Both sides appealed to the Connecticut Supreme Court.22
The Connecticut Supreme Court held that all the takings were valid under Connecticut General Statute section 8-186,23 which allows land to be taken as part of an economic development plan and states that those takings constitute a public use in the "public interest."24 Furthermore, the Connecticut Supreme Court, relying primarily on Hawaii Housing Authority v. Midkiff25 and Berman v. Parker,26 held that the takings qualified as valid public uses under the United States Constitution and the Connecticut Constitution.27 Additionally, the court reasoned that the takings were "'reasonably necessary' to achieving the City's intended public use . . . and, second, . . . the takings were for 'reasonably foreseeable needs.'"28 Therefore, the court affirmed the trial court's finding as to Parcel 3, and the court reversed the trial court's finding as to Parcel 4A.29 The court concluded that "the intended use of this land was sufficiently definite and had been given 'reasonable attention' during the planning process."30 However, three justices dissented because they believed the takings should have been reviewed using a "heightened scrutiny" standard of judicial review.31
The United States Supreme Court "granted certiorari to determine whether a city's decision to take property for the purpose of economic development satisfies the 'public use' requirement of the Fifth Amendment"32 and held that takings for the purpose of economic development satisfy the public use requirement of the Fifth Amendment.33
II. Legal Background
Eminent domain is the power to take private property for a public use.34 The Fifth Amendment,35 in stating that "private property [shall not] be taken for public use, without just compensation" limits the exercise of the power of eminent domain.36 Consequently, for the government37 to exercise this power of eminent domain, two requirements must be met: (1) the person whose land is taken must be justly compensated (the "Just Compensation Clause") and (2) the land that is taken must be used for a public use (the "Public Use Clause").38
Eminent domain is not a new concept. With its origins in English common law, the use of eminent domain under state constitutions was accepted by early Americans.39 Early Americans rarely questioned whether the use of eminent domain for the construction of mills, roads, and other works was beneficial to the public; however, as state governments began to increase their support for commerce, the use of eminent domain became more controversial.40 Thus, eminent domain entered the earliest jurisprudence of the United States. Cases such as Calder v. Bull41 discussed the power of eminent domain and its limitations. In fact, the majority in Kelo,42 Justice O'Connor in her dissent,43 and Justice Thomas in his dissent,44 all cite Calder for its insight on the takings power.
Since the decision in Calder v. Bull, the legal landscape of the Public Use Clause has centered around two interpretations of the clause, one broad and one narrow. The current jurisprudence embraces the broader interpretation of "public use," which employs a "public purpose" test to decipher if a proposed condemnation is valid.45 In contrast, a reemer-gence of the narrow interpretation of public use has recently occurred in state courts. Its proponents advocate a more textualist, or literal, approach that interprets the clause to mean actual "use by the public," not use for a public purpose.46
A. The Public Purpose Test
In Fallbrook Irrigation District v. Bradley,47 the United States Supreme Court promulgated the public purpose test.48 In that case, the Court upheld condemnations for the purpose of constructing an irrigation ditch to provide water to millions of acres of arid, potentially worthless land.49 The Court held that "[a]ll landowners in the district have the right to a proportionate share of the water."50 However, the Court opined that "[t]o irrigate, and thus bring into possible cultivation, these large masses of otherwise worthless lands, would seem to be a public purpose. . . ."51 Shortly after the decision in Bradley, the Court again applied the public purpose test in Clark v. Nash.52 In that case, the Court cited Bradley in upholding another condemnation for the public purpose of laying an irrigation ditch even though the public also had a legal right to the land.53 In Strickley v. Highland Boy Gold Mining Co. ,54 the Court relied on Bradley to uphold a mining company's aerial right-of-way for a bucket line.55 These decisions became the bedrock of the public purpose test and its progeny.56
B. The Narrow Interpretation of Public Use
Under the narrow interpretation of public use, the public must have the opportunity to use the property taken.57 Early case law adopted this standard until Bradley shifted the United States Supreme Court's narrow interpretation to the broader interpretation.58 Interestingly, many state courts have struggled in deciding which interpretation is correct.59 For example, the Michigan Supreme Court recently overturned its broad interpretation of public use as applied in Poletown Neighborhood Council v. City of Detroit60 for a more restrictive, narrower interpretation of public use in County of Wayne v. Hathcock.61
In County of Wayne, the Michigan Supreme Court, under circumstances similar to those in Kelo, examined whether the condemnation of land to build a business or technological park for private parties was constitutional.62 The court analyzed the Michigan statute63 that authorized the taking for a public purpose and concluded that the term "public purpose," at the time of the ratification of the Michigan State Constitution in 1963, was understood to be more restrictive than the broad interpretation from Poletown.64 Therefore, the court held that public use takings could still occur but only under much more limited circumstances.65
C. Economic Redevelopment Cases
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