From new London to Norwood: A year in the life of eminent domain

Duke Law Journal

Volumn 57, Issue 5, 2008, Pages 1449-1483

  Han, Andrew S ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 45949083689     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (217)

1. Kelo v. City of New London, 125 S. Ct. 2655 (2005).
2. See City of Norwood v. Horney, 853 N.E.2d 1115, 1142 (Ohio 2006) ("[A]n economic or financial benefit alone is insufficient to satisfy the public-use requirement . . . .").
3. See infra Parts I.B, II.
4. City of Norwood v. Horney, 853 N.E.2d 1115 (Ohio 2006).
5. Restricting Eminent Domain, CHATTANOOGA TIMES FREE PRESS, May 26, 2006, at B6.
6. U.S. CONST. amend. V ("[N]or shall private property be taken for public use, without just compensation.").
7. See, e.g., Marie Price, Eminent Domain Petition is Filed, TULSA WORLD, Dec. 21, 2005, at A11 ("In [Kelo], the [C]ourt said the U.S. Constitution allows the government to condemn property for private development purposes if the result would increase jobs or tax revenue.").
8. See Judy Coleman, The Powers of a Few, the Anger of the Many, WASH. POST, Oct. 9, 2005, at B2 ("[T]he result was a firestorm of public resentment that cut across party and ideological lines.").
9. See id. (noting that a resident of California filed a petition to condemn Justice Souter's New Hampshire home because Justice Souter had voted with the majority).
10. See Protection of Homes, Small Businesses, and Private Property Act of 2005, S. 1313, 109th Cong. (2005) (attempting to require that "'public use' . . . not be construed to include economic development"); see also Sonya D. Jones, Note and Comment, That Land Is Your Land, This Land Is My Land . . . Until the Local Government Can Turn It for a Profit: A Critical Analysis of Kelo v. City of New London, 20 BYU J. PUB. L. 139, 161 (2005) ("Within five days of the announcement of the Kelo decision, Sen. John Cornyn (R-TX) proposed the Protection of Homes, Small Businesses, and Other Private Property Rights Act of 2005, which would withhold federal funds from states that use eminent domain power for economic development.").
11. E.g., Patricia H. Lee, In the Aftermath of Kelo v. New London, a Resurrection in Norwood: One Public Interest Attorney's View, 29 W. NEW ENG. L. REV. 121, 139-40 (2006) (praising Norwood and calling for states to "resurrect . . . the constitutional protections tossed out by the [U.S.] Supreme Court"). Kelo invites this argument: 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. Kelo v. City of New London, 125 S. Ct. 2655, 2668 (2005).
12. See, e.g., T.R. Reid, Missouri Condemnation No Longer So Imminent; Supreme Court Ruling Ignites Political Backlash, WASH. POST, Sept. 6, 2005, at A2 (reporting that within three months of the Kelo decision, three states passed new laws restricting eminent domain and "hundreds of local governments around the country" began considering similarly restrictive ordinances); see also Nat'l Conference of State Legislatures, Eminent Domain 2006 State Legislation, http://www.ncsl.org/programs/natres/emindomainleg06.htm (last visited Mar. 7, 2008) (reporting that all of the forty-four state legislatures in session in 2006 at least considered legislation to restrict eminent domain and that twenty-eight of those states actually passed bills to that effect). The Castle Coalition, a project of the Institute of Justice, includes a section discussing how to advocate for legislative reform as a regular citizen in its "Eminent Domain Abuse Survival Guide."
13. CASTLE COALITION, EMINENT DOMAIN ABUSE SURVIVAL GUIDE: GRASSROOTS STRATEGIES FOR WINNING THE FIGHT AGAINST EMINENT DOMAIN ABUSE 3-24 (n.d.), available at http://www.castlecoalition.org/pdf/publications/survival-guide.pdf.
14. An American's Home Is Still Her Castle; Lexington, ECONOMIST, Nov. 25, 2006, at 36. For example, in New Hampshire, more than 85 percent of voters voted in favor of an amendment to the state constitution prohibiting the transfer of taken property, "directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property."
15. CASTLE COALITION, 50 STATE REPORT CARD: TRACKING EMINENT DOMAIN REFORM LEGISLATION SINCE KELO 33 (2007) (quoting Constitutional Amendment Con. Res. 30, 159th Gen. Court, Reg. Sess. (N.H. 2006)), available at http://www.castlecoalition.org/pdf/ publications/report_card/50_State_Report.pdf.
16. See Castle Coalition, Legislative Center, http://www. castlecoalition.org/legislation/index.html (last visited Mar. 7, 2008) (cataloging state and federal legislative activity in detail).
17. Justice Stevens anticipated that state courts would play a key role in the future of eminent domain when he referred to both state constitutional law and state statutes. See Kelo, 125 S. Ct. at 2668 (noting that states' public use restrictions "have been established as a matter of state constitutional law" and by limiting language within state statutes).
18. "Public use" is typically judged to have two competing definitions. The "broad" definition of "public use" equates it with "public advantage." Kelo v. City of New London, 843 A.2d 500, 531 n.41 (Conn. 2004), aff'd, 125 S. Ct. 2655 (2005). The "narrow" definition means that "the property acquired by eminent domain must actually be used by the public or that the public must have the opportunity to use the property taken." Id. (quoting 2A P. NICHOLS, EMINENT DOMAIN § 7.02[2]-[7] (J. Sackman ed., rev. 3d ed. 2003)).
19. See, e.g., Lee, supra note 11, at 139-40 (praising Norwood and calling for states to "resurrect . . . the constitutional protections tossed out by the [U.S.] Supreme Court").
20. Kelo v. City of New London, 843 A.2d 500 (Conn. 2004), aff'd, 125 S. Ct. 2655 (2005).
21. Kelo, 125 S. Ct. at 2658.
22. Id. at 2659.
23. Id. at 2658. "Distressed municipality" is defined in the Connecticut Statutes. CONN. GEN. STAT. ANN. § 32-9p (West 2003). There are several ways that a city can be designated a "distressed municipality," but generally, the city must meet certain "thresholds of distress" in areas such as "high unemployment and poverty, aging housing stock and low or declining rates of growth in job creation, population and per capita income." Id. Those thresholds may be set at either the state or federal level. Id. For example, if a city met the criteria to be eligible for an Urban Development Action Grant, it could be designated a "distressed municipality." Id. The United States Department of Housing and Urban Development issues regulations that lay out those criteria. The grant was part of a federal program intended to encourage municipalities to leverage private funds into redevelopment projects. See H.R. REP NO. 95-634, at 45 (1977) (Conf. Rep.), as reprinted in 1977 U.S.C.C.A.N. 2965, 2965 (clarifying that the program aimed to "stimulat[e] . . . private investment and community revitalization" in areas of outmigration and stagnation). Although the statute authorizing the program remains active, Congress has not appropriated funds for the program since 1988.
24. Kary L. Moss, The Privatizing of Public Wealth, 23 FORDHAM URB. L.J. 101, 130 n.166 (1995).
25. Kelo, 843 A.2d at 510. The court noted that "approximately 1900 government sector positions" had been lost during the years leading up to the case. Id.
26. Kelo, 125 S. Ct. at 2658.
27. Kelo, 843 A.2d at 508. The state "authorized a $5.35 million bond issue to support the NLDC's planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park." Kelo, 125 S. Ct. at 2659.
28. DVD: Distinctive Aspects of American Law, Kelo v. City of New London, 545 U.S. 469 (2005) (Duke University School of Law 2006) (on file with the Duke Law Journal).
29. Kelo, 843 A.2d at 508. The research facility cost approximately $300 million to construct. Kelo, 125 S. Ct. at 2659. In June 2001, the Pfizer facility opened and began operations. Kelo, 843 A.2d at 509.
30. Kelo, 843 A.2d at 508.
31. Id. at 553.
32. Id. at 510. Those alternate plans included the following: (1) no action, with the assumption that some development activities would proceed under the direction of other entities, such as the United States Navy, without action by the development corporation; (2) recreational and cultural facilities to complement the adjacent state park; (3) residential construction with minor amounts of retail and office space; (4) a business campus supported by the hotel and conference center; and (5) two mixed use alternates combining residences, recreational, commercial, hotel and retail uses in differing arrangements. Id. at 510 n.6. The development plan was projected to generate between "(1) 518 and 867 construction jobs; (2) 718 and 1362 direct jobs; and (3) 500 and 940 indirect jobs. The composite parcels of the development plan also [were] expected to generate between $680,544 and $1,249,843 in property tax revenues for the city." Id. at 510.
33. Kelo, 125 S. Ct. at 2660.
34. CONN. GEN. STAT. ANN. § 8-193 (West 2003).
35. Kelo, 843 A.2d at 510-11.
36. Id. at 511.
37. Id. at 509. The plans for each of these areas ranged from a waterfront hotel and conference center on parcel 1 to office, parking, and retail space on parcel 5. Id.
38. Kelo, 125 S. Ct. at 2660. Parcel 4 was "subdivided into two smaller parcels, 4A and 4B." Kelo, 843 A.2d at 509.
39. Kelo, 125 S. Ct. at 2660.
40. Id.
41. Kelo, 843 A.2d at 509.
42. Id. The proposed Fort Trumbull State Park was planned for parcel 2. Id.
43. Id. at 511.
44. Kelo, 125 S. Ct. at 2660.
45. Id.
46. Id. at 2669.
47. Id. at 2658. Justice Stevens's choice of the neutral phrase "proposed disposition of this property" is not insignificant. At the heart of the eminent domain debate is whether the "proposed disposition" was "urban redevelopment" or whether it was "economic development." See infra Part III.B. Of course, this semantic difference might just be a red herring.
48. Kelo, 125 S. Ct. at 2661 ("On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.").
49. Id. ("On the other hand, it is equally clear that a State may transfer property from one private party to another if future 'use by the public' is the purpose of the taking . . . .").
50. Berman v. Parker, 348 U.S. 26 (1954).
51. Haw. Hous. Auth. v. Midkiff, 467 U.S. 229 (1984).
52. Kelo, 125 S. Ct. at 2663-64.
53. Berman, 348 U.S. at 35; accord Kelo, 125 S. Ct. at 2663. In Justice Stevens's view, the key to Berman was not the taking itself, but rather the Court's holding that the area in question must be looked at as a whole, which therefore justifies the public use. Kelo, 125 S. Ct. at 2665 n.13. Justice Stevens relied on the effect, not the actual taking itself.
54. Midkiff, 467 U.S. at 242; accord Kelo, 125 S. Ct. at 2663-64.
55. Kelo, 125 S. Ct. at 2660. Justice Stevens also cites to Ruckelhaus v. Monsanto Co., 467 U.S. 986 (1984), as a further argument against seeking a bright-line rule in takings jurisprudence. Kelo, 125 S. Ct. at 2663 n.10. Ruckelhaus provided an example of a transfer of property from private owners to other private owners, but which had a direct benefit to the public. Perhaps due to the fact that the property involved was not land, Ruckelhaus is typically not discussed when legal scholars refer to the precedents leading up to Kelo. See, e.g., Alan T. Ackerman, Kelo v. City of New London: The Answer to the Public Use Question or Just a Source of More Questions?, in CURRENT CONDEMNATION LAW: TAKINGS, COMPENSATION, AND BENEFITS 293, 299-301 (Alan T. Ackerman & Darius W. Dynkowski eds., 2d ed. 2006) (discussing only Berman and Midkiff together).
56. Kelo, 125 S. Ct. at 2669.
57. Id. at 2668. The majority cited Michigan's County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), as an example of state constitutional law acting as a more stringent limit on eminent domain than the federal constitution. Kelo, 125 S. Ct. at 2668 n.22.
58. Cf. id. at 2677 (O'Connor, J., dissenting) ("Today nearly all real property is susceptible to condemnation on the Court's theory.").
59. Id. Justice O'Connor also pointed out the irony of asking states to "compensat[e] for [the Supreme Court's] refusal to enforce properly . . . a provision meant to curtail state action." Id.
60. Between the Kelo decision in June 2005 and the Norwood decision in July 2006, the highest courts of seven states cited the Supreme Court's Kelo decision but did not directly address its legal holding. See Kellogg v. Dearborn Info. Servs., 119 P.3d 20, 24 (Mont. 2005) (Rice, J., dissenting) (employing a quote by James Madison from Justice O'Connor's dissent stating that a "just government" should secure to each citizen "whatever is his own"); Nevadans for the Prot. of Prop. Rights, Inc. v. Heller, 141 P.3d 1235, 1243-44 (Nev. 2006) (noting that a voter initiative seeking to restrict eminent domain was responding to the Kelo decision); id. at 1251-52 (Maupin, J. dissenting) (the same); McCarran Int'l Airport v. Sisolak, 137 P.3d 1110, 1126 (Nev. 2006) (citing Kelo in support of a holding that states may interpret their own constitutions as restricting their taking powers more than the federal constitution does); In re Initiative Petition No. 382, 142 P.3d 400, 408 (Okla. 2006) (noting that Kelo "has prompted a national discussion on the proper limitations on the power of eminent domain"); Conti v. R.I. Econ. Dev. Corp., 900 A.2d 1221, 1231 (R.I. 2006) (citing Kelo in support of the proposition that the Just Compensation Clause of the federal constitution applies to the states via the Fourteenth Amendment); R.I. Econ. Dev. Corp. v. Parking Co., 892 A.2d 87, 104 (R.I. 2006) (citing Kelo for the proposition that a condemnation must be done in good faith and that a comprehensive plan is indicative of the public use of the takings); Benson v. State, 710 N.W.2d 131, 146 (S.D. 2006) (holding that despite the federal constitution's allowance of takings that get conveyed to private owners, Kelo allows states to construe their own constitutions more narrowly, which South Dakota does); Hoffman Family, L.L.C. v. City of Alexandria, 634 S.E.2d 722, 731 (Va. 2006) (noting the inapplicability of Kelo to a condemnation for a public utility to be run by the city and that Kelo's holding only applies to the federal constitution); Norfolk Redevelopment & Hous. Auth. v. C & C Real Estate, Inc., 630 S.E.2d 505, 509 (Va. 2006) (citing Kelo as paralleling the takings clause of the Virginia Constitution); HTK Mgmt., L.L.C. v. Seattle Popular Monorail Auth., 121 P.3d 1166, 1168 (Wash. 2005) (distinguishing Kelo because the condemnation was for a monorail - a clear public use); id. at 639 (Johnson, J., dissenting) (citing Kelo because states are permitted to restrict the takings power); see also Bd. of County Comm'rs v. Lowery, 136 P.3d 639, 650 (Okla. 2006) (explaining a holding that was inconsistent with Kelo based on Justice Stevens's permitting states to interpret state laws more strictly).
61. See City of Norwood v. Horney, 853 N.E.2d 1115, 1122 (Ohio 2006) ("Our consideration does not take place in a vacuum.").
62. Id.
63. Id. at 1124 n.3.
64. Id.
65. Id.
66. Id. at 1123.
67. Id.
68. See id. at 1124 (describing the construction of Interstate 71 and the concomitant and subsequent replacement of residences with businesses).
69. Id. Significantly, in Norwood the private developer approached the municipality whereas in Kelo the state bond provided the impetus for the municipality to approach the private developer. See supra text accompanying notes 24-26.
70. Norwood, 853 N.E.2d at 1124. The residential and retail spaces would have been owned by Rookwood, and the parking facilities would have been owned by Norwood. Id.
71. Id.
72. Compare id. (suggesting that the financial impetus for the redevelopment in Norwood was a private company), with Kelo v. City of New London, 843 A.2d 500, 508 (Conn. 2004) (noting that the financial impetus for the redevelopment in New London was a state bond), aff'd, 125 S. Ct. 2655 (2005).
73. Norwood, 853 N.E.2d at 1124.
74. Id. at 1125. Many of the residents in the neighborhood were happy to sell and ended up enjoying lucrative compensation. See generally Steven Kemme & Gregory Korte, Editorial, Untold Story, CIN. ENQUIRER, Apr. 30, 2006, at 1E (providing details on how "most of the . . . property owners were handsomely compensated" and describing the legal battles of the six holdouts).
75. Norwood, 853 N.E.2d at 1125 n.4 (citing NORWOOD, OHIO, CODIFIED ORDINANCES §§ 163.03 to 163.09, which required a "study of an area in order to determine whether redevelopment [was] needed").
76. Id. at 1125. The Norwood Code distinguished between a "deteriorated area" and a "deteriorating area." Id. at n.5. According to CODIFIED ORDINANCES § 163.02(b), a "deteriorated area" was the equivalent of a slum or blighted area. Id. In contrast, according to CODIFIED ORDINANCES § 163.02(c), a "deteriorating area" was an area, whether predominantly built up or open, which is not a slum, blighted or deteriorated area but which . . . is detrimental to the public health, safety, morals and general welfare, and which will deteriorate, or is in danger of deteriorating, into a blighted area. Id. (citing CODIFIED ORDINANCES § 163.02(c)).
77. Id. at 1125-26.
78. Id. at 1126.
79. Id. (emphasis added).
80. Id. at 1126-27 (emphasis added).
81. Id. at 1127.
82. Id. at 1128 (citing as an example ROBERT MELTZ, DWIGHT H. MERRIAM & RICHARD M. FRANK, THE TAKINGS ISSUE: CONSTITUTIONAL LIMITS ON LAND USE CONTROL AND ENVIRONMENTAL REGULATION 10 (1999)).
83. Id. at 1129; see also OHIO CONST. art. I, § 1 ("All men . . . have certain inalienable rights, among which are those of . . . acquiring, possessing, and protecting property."); OHIO CONST. art. I, § 19 ("Private property shall ever be held inviolate, but subservient to the public welfare . . . .").
84. Norwood, 853 N.E.2d at 1129.
85. Id. at 1130; see also OHIO CONST. art. I, § 19 ("[I]n all other cases, where private property shall be taken for public use, a compensation therefor shall first be made . . . .").
86. Norwood, 853 N.E.2d at 1130.
87. Id. at 1131-35.
88. Id. at 1135.
89. Id. at 1135-36 (citations omitted).
90. Id. at 1136 (citations omitted).
91. See id. at 1137 (asserting the danger in allowing the state to use police power as a means to "virtually immunize all takings from judicial review"). The police power was one of the key rationales given in Berman and Midkiff for deferring to the legislature's determination of public use. Id. But see infra note 138.
92. See, e.g., Norwood, 853 N.E.2d at 1138 ("The scrutiny by the courts in appropriation cases is limited in scope, but it clearly remains a critical constitutional component.").
93. Id. at 1140. The Connecticut Supreme Court was not immune to this fear either. In siding with New London, it thoroughly considered Pfizer's involvement in the creation of the development plan. Kelo v. City of New London, 843 A.2d 500, 542 (Conn. 2004), aff'd, 125 S. Ct. 2655 (2005). Although Pfizer had certain "requirements" it hoped that New London would implement, the executive vice president of RKG Associates, which had assisted the NLDC in developing the development plan, was "never told that Pfizer would not come to the city if the hotel [which was needed] was not built." Id. at 538. The court was ultimately satisfied that the takings were done in good faith. Id. at 542.
94. Norwood, 853 N.E.2d at 1138 (quoting Kelo v. City of New London, 125 S. Ct. 2655, 2676-77 (2005) (O'Connor, J., dissenting)); see also infra note 167.
95. Norwood, 853 N.E.2d at 1140 (quoting Kelo, 843 A.2d at 579 (Zarella, J., dissenting)); see also infra notes 108, 116 and accompanying text.
96. Norwood, 853 N.E.2d at 1140.
97. Id. at 1141 (citations omitted).
98. See id. at 1142-43 (analyzing the case under the void-for-vagueness doctrine). At least one commentator sharply criticized the Ohio Supreme Court's application of the void-for vagueness doctrine to eminent domain statutes, finding the doctrine's purposes inapposite to the property context. See generally Sarah Sparks, Comment and Casenote, Deteriorated vs. Deteriorating: The Void-For-Vagueness Doctrine and Blight Takings, Norwood v. Horney, 75 U. CIN. L. REV. 1769 (2007) (arguing against the void-for-vagueness doctrine in the eminent domain context and warning that such application might problematically lead to the doctrine's application to the "public use" clauses in statutes).
99. See Norwood, 853 N.E.2d at 1146 (holding that because the void-for-vagueness doctrine applied, there was no "adequate showing that the takings were for a public use"). The case was decided unanimously. See id. at 1153 (listing the justices concurring in the judgment).
100. County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004).
101. See Norwood, 853 N.E.2d at 1141 ("Although economic benefit can be considered as a factor among others in determining whether there is a sufficient public use and benefit in a taking, it cannot serve as the sole basis for finding such benefit."); see also infra Part III.B (discussing the language of "economic benefit").
102. See Norwood, 853 N.E.2d at 1141 (stating explicitly that the approach of the Kelo dissent is the preferred way to interpret Section 19, Article I of the Ohio Constitution).
103. There is some indication that Ohio residents themselves are not sure which side of the debate can best use the Norwood decision. See Gregory Korte, Owners, City Refer to Same Land Case, CIN. ENQUIRER, Dec. 8, 2006, at 2B ("Both sides in a Clifton Heights[, Ohio,] eminent domain dispute argued their case before a state appeals court Thursday, and both cited the same Norwood case as precedent.").
104. Kelo v. City of New London, 843 A.2d 500, 587 (Conn. 2004) (Zarella, J., dissenting), aff'd, 125 S. Ct. 2655 (2005).
105. Id. at 600-01.
106. Id. at 581.
107. Id. at 582.
108. CONN. GEN. STAT. ANN. § 8-200(b) (West 2003).
109. Kelo, 848 A.2d at 578 (Zarella, J., dissenting).
110. Id. at 579. The dissent further distinguished chapter 132 by comparing it directly to other Connecticut General Statutes in which the "disposition of property," that is, the transfer of taken property to private ownership, was "'incidental to' the elimination of blight" (i.e., the public use). Id.
111. Id. at 580 (describing CONN. GEN. STAT. ANN. § 8-200(b)).
112. Id. at 587. In step one, the court should examine the facial constitutionality of the statutory scheme, and the party opposing the taking should bear the initial burden of proving that the proposed public use of private economic development is unconstitutional. Id. If the opposing party succeeds, the inquiry ends and the taking is invalid. Id. at 587-88. If not, then step two asks that the party opposing the taking prove that the primary intent of the plan is to benefit private, rather than public, interests. Id. at 588. Again, if the opposing party succeeds, the inquiry ends and the taking is invalid. Id. If not, then the test moves on to step three, where the burden shifts for the first time to the taking party to show that the proposed economic development will in fact benefit the public. Id. Finally, if the taking party succeeds in meeting that test, the inquiry moves to step four, in which the burden shifts back to the opposing party, who must prove that "the specific condemnation at issue is not reasonably necessary to implement the plan." Id. at 591. The taking only passes constitutional muster if the opposing party cannot disprove the reasonable necessity of the condemnation at this stage. Id.
113. Id. at 587.
114. Id. at 588. The dissent likens the level of proof required to that required in a claim of adverse possession in a civil suit. Id. at 589.
115. Id. at 593-94.
116. Id. at 595-96.
117. Among other pieces of evidence, the dissent noted that no development agreement had been signed at the time of the taking. Id. at 596.
118. Id. at 602.
119. Id. at 582; see also id. at 584 n.13 ("[T]he question is not whether the development plan and the statutes reasonably ensure adherence to the development plan, but, rather, whether 'private sector participants' are available and willing to develop the property and whether the terms by which they agree to develop the property will result in a public benefit such that the private benefit will be incidental thereto.").
120. Poletown Neighborhood Council v. Detroit, 304 N.W.2d 455 (Mich. 1981), overruled by County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004).
121. This Note argues, however, that this rule is an unfortunate misconstruction of what the state Kelo holding actually was. See infra Part III.
122. Wayne County, Michigan, About WC, http://www.waynecounty.com/about (last visited Mar. 7, 2008).
123. Hathcock, 684 N.W.2d at 770.
124. Id.
125. Id.
126. Id.
127. Id. at 771.
128. Id.
129. Id. at 781.
130. Id. at 783; cf. Kelo v. City of New London, 125 S. Ct. 2655, 2673 (2005) (O'Connor, J., dissenting) (identifying "three categories of takings that comply with the public use requirement").
131. Hathcock, 684 N.W.2d at 783 (Mich. 2004). As examples, the first category included "highways, railroads, canals, and other instrumentalities of commerce." Id. at 781. The second category included a petroleum pipeline over which the state retained some control. Id. at 782 (citing Lakehead Pipe Line Co. v. Dehn, 64 N.W.2d 903 (Mich. 1954)). And the third category included the removal of blight. Id. at 783 (citing In re Slum Clearance, 50 N.W.2d 340 (Mich. 1951)).
132. Kelo, 125 S. Ct. at 2671. Justice Rehnquist, Justice Scalia, and Justice Thomas joined. Id. Justice Thomas wrote an additional dissenting opinion arguing that an originalist approach to the text was best, and that such an analysis would yield the same conclusions Justice O'Connor reached. Id. at 2677 (Thomas, J., dissenting). In particular, he wrote that the holdings in Berman and Midkiff were misguided to construe the respective takings in each case as being "coterminous" with the police power. Id. at 2685 (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 240 (1984)). Justice Thomas's unique observation, however, dealt with the practical reality of whom such a taking power would likely displace in society. He wrote that the losses of personal property "will fall disproportionately on poor communities." Id. at 2686-87. Furthermore, "[U]rban renewal projects have long been associated with the displacement of blacks; '[i]n cities across the country, urban renewal came to be known as Negro removal.'" Id. at 2687 (quoting Wendell E. Pritchett, The "Public Menace" of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 YALE L. & POL'Y REV. 1, 47 (2003)) (internal quotation marks omitted).
133. Id. at 2673 (O'Connor, J., dissenting) ("We give considerable deference to legislatures' determinations about what governmental activities will advantage the public. . . . An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning.").
134. Id. Justice O'Connor listed "a road, a hospital, or a military base" as examples. Id.
135. Id. Justice O'Connor listed "a railroad, a public utility, or a stadium" as examples. Id.
136. Id. The takings in Berman and Midkiff were cited for this category. Id.
137. See id. ("This case returns us . . . to the hard question of when a purportedly 'public purpose' taking meets the public use requirement.").
138. Id.
139. Id.
140. Id. at 2674. But see supra note 50.
141. Some commentators have noted that language in the dissent suggests that Justice O'Connor had become dissatisfied with what Berman and particularly Midkiff, an opinion written by Justice O'Connor, had come to stand for in the development of the public use doctrine. See, e.g., Steven J. Eagle, Kelo v. City of New London: A Tale of Pragmatism Betrayed," in EMINENT DOMAIN USE AND ABUSE: KELO IN CONTEXT 195, 202 (Dwight H. Merriam & Mary Massaron Ross eds., 2006) ("Some of Justice O'Connor's . . . language resembled nothing more than a mea culpa."). Both opinions liken the eminent domain power to the legislature's police power, thereby suggesting near limitless deference to legislative determinations of public use takings. Id. ("If Berman and Midkiff focused on elimination of harm, Justice O'Connor saw the Court's new jurisprudence as unrestrained.").
142. Kelo, 125 S. Ct. at 2674 (O'Connor, J., dissenting).
143. Id. at 2675.
144. Compare id. at 2673 ("[W]e have allowed that . . . takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use."), with County of Wayne v. Hathcock, 684 N.W.2d 765, 783 (Mich. 2004) (noting that the main example "turned on the fact that the act of condemnation itself, rather than the use to which the condemned land eventually would be put, was a public use").
145. Kelo, 125 S. Ct. at 2673 (O'Connor, J., dissenting).
146. See Hathcock, 684 N.W.2d at 782 ("[T]he transfer of condemned property to a private entity is consistent with the constitution's 'public use' requirement when the private entity remains accountable to the public in its use of that property.").
147. Kelo v. City of New London, 843 A.2d 500, 587-92 (Conn. 2004) (Zarella, J., dissenting), aff'd, 125 S. Ct. 2655 (2005).
148. Id. at 583.
149. Id. at 582.
150. To Justice O'Connor, the Supreme Court majority was satisfied with the fact that "[t]he NLDC's plan is the product of a relatively careful deliberative process"; meanwhile, Justice O'Connor was concerned with finding a limiting principle that could ferret out "property transfers generated with less care, that are less comprehensive, that happen to result from less elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope to transform an already prosperous city into an even more prosperous one." Kelo, 125 S. Ct. at 2676-77 (O'Connor, J., dissenting).
151. Hathcock, 684 N.W.2d at 783.
152. Kelo, 843 A.2d at 588.
153. City of Norwood v. Horney, 853 N.E.2d 1115, 1141 (Ohio 2006).
154. See supra notes 73-75 and accompanying text (distinguishing the Norwood Code's definition of a "deteriorating" area and a "deteriorated" area).
155. Norwood, 853 N.E.2d at 1146.
156. See id. ("We therefore hold that the use of 'deteriorating area' as a standard . . . is void for vagueness . . . . Further, we hold that the term 'deteriorating area' cannot be used as a standard for a taking, because it inherently incorporates speculation as to the future condition of the property . . . .").
157. Kelo v. City of New London, 125 S. Ct. 2655, 2662 (2005).
158. Id.
159. Id. at 2673 (O'Connor, J., dissenting).
160. Id. at 2662 (majority opinion) (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 244 (1984)).
161. Id. at 2663.
162. Olmstead v. Camp, 33 Conn. 532 (1866).
163. Kelo v. City of New London, 843 A.2d 500, 522 (Conn. 2004), aff'd, 125 S. Ct. 2655 (2005).
164. Id.
165. Id. at 523.
166. Kelo, 843 A.2d at 523 n.32 (citation omitted) (citing Katz v. Brandon, 245 A.2d 579, 586 (Conn. 1968); Barnes v. City of New Haven, 98 A.2d 523 (Conn. 1953)).
167. Id. at 524-25 (quoting Katz, 245 A.2d at 586) (emphasis omitted). This point is particularly relevant because it suggests that deference to the legislature regarding the public use doctrine is not a blind surrender to legislative determinations, as the United States Kelo opinion often is viewed.
168. "Urban revitalization" may be more applicable to New London's situation, and "economic development" may be more applicable to Norwood's case.
169. Compare Brief of Respondent at 1, Kelo v. City of New London, 125 S. Ct. 2655 (2005) (No. 04-108) ("QUESTION PRESENTED: Does the Takings Clause of the Fifth Amendment forbid an economically distressed city from employing its eminent domain power to condemn, and pay just compensation for, private property in order to reverse decades of economic decline, create thousands of jobs and significantly increase property taxes and other sources of revenue for the city, and to realize immediate structural and environmental benefits for the city and its residents?"), with Brief of Petitioners at 1, Kelo v. City of New London, 125 S. Ct. 2655 (2005) (No. 04-108) ("QUESTION PRESENTED: What protection does the Fifth Amendment's public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of 'economic development' that will perhaps increase tax revenues and improve the local economy?").
170. See Kelo, 125 S. Ct. at 2677 (O'Connor, J., dissenting) ("Any property may now be taken for the benefit of another private party . . . .").
171. County of Wayne v. Hathcock, 684 N.W.2d 765, 786 (Mich. 2004).
172. See, e.g., Kelo, 843 A.2d at 587 (Zarella, J., dissenting) ("[S]o, too, should a heightened standard of judicial review be required to ensure that the constitutional rights of private property owners are protected adequately when property is taken for private economic development . . . .").
173. See, e.g., id. at 520 (majority opinion) ("We conclude that economic development projects . . . contributing to urban revitalization,
174. WEBSTER'S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 543 (1996).
175. Id. at 1648.
176. Kelo, 843 A.2d at 507.
177. The second time the issue was stated was at the conclusion of the Connecticut Supreme Court's analysis of eminent domain legal precedent: [W]e conclude that economic development plans that the appropriate legislative authority rationally has determined will promote municipal economic development by creating new jobs, increasing tax and other revenues, and otherwise revitalizing distressed urban areas, constitute a valid public use for the exercise of the eminent domain power under either the state or federal constitution. Id. at 531. The third time, the court was applying the law to the facts of one of the parcels owned by the petitioners: [W]e concluded that economic development projects created and implemented pursuant to chapter 132 of the General Statutes that have the public economic benefits of creating new jobs, increasing tax and other revenues, and contributing to urban revitalization, namely, the development plan in the present case, satisfy the public use clauses of the federal and state constitutions. Id. at 555-56. The fourth and final description of the issue occurred when the court was again applying the law to the facts of the case: In part II of this opinion, we concluded that economic development projects created and implemented pursuant to chapter 132 of the General Statutes that have the public economic benefits of creating new jobs, increasing tax and other revenues, and contributing to urban revitalization, namely, the development plan in the present case, satisfy the public use clauses of the federal and state constitutions. Id. at 569.
178. One commentator argues that the City of New London has itself to blame for this. Although New London's statutorily defined status as a "distressed municipality" prompted the development plan, in its brief to the Supreme Court, the city chose to focus on the benefits of economic development isolated from the initial disposition of the city. See Ackerman, supra note 52, at 306 ("Rather than focus on the established, legitimate exercise of the police power for blight removal, the Respondent sought a confirmation that economic development alone was also a legitimate exercise of the police power as long as the legislature had declared it to be so.").
179. Compare Kelo v. City of New London, 125 S. Ct. 2655, 2658 (2005) ("The question presented is whether the city's proposed disposition of this property qualifies as a 'public use' within the meaning of the Takings Clause of the Fifth Amendment to the Constitution."), with Kelo, 843 A.2d at 520 ("We conclude that economic development projects created and implemented pursuant to chapter 132 that have the public economic benefits of creating new jobs, increasing tax and other revenues, and contributing to urban revitalization, satisfy the public use clauses of the state and federal constitutions.").
180. See supra note 21 and accompanying text.
181. Id.
182. Hudson Hayes Luce, The Meaning of Blight: A Survey of Statutory and Case Law, 35 REAL PROP. PROB. & TR. J. 389, 394 (2000).
183. Compare Kelo, 125 S. Ct. at 2658 ("[I]t is appropriate for us . . . to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan."), with Kelo 843 A.2d at 537 n.50 ("[A]n appropriate public use analysis necessarily requires evaluation of the development plan as a whole - the end result of the sum of all of its parts.").
184. See Kelo, 125 S. Ct. at 2665 n.13 ("It was important to redesign the whole area . . . . The entire area needed redesigning . . . ." (quoting Berman v. Parker, 75 S. Ct. 98, 103 (1954))).
185. See, e.g., id. at 2676 (O'Connor, J., dissenting) ("[T]he judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer.").
186. For a proposal on a model definition of blight that is more immune to the potential manipulation of legislatures, see generally Will Lovell, Note, The Kelo Blowback: How the Newly-Enacted Eminent Domain Statutes and Past Blight Statutes Are a Maginot Line-Defense Mechanism for All Non-Affluent and Minority Property Owners, 68 OHIO ST. L.J. 609 (2007).
187. See City of Norwood v. Horney, 853 N.E.2d 1115, 1123 (Ohio 2006) ("We hold that although economic factors may be considered in determining whether private property may be appropriated, the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement of Section 19, Article I of the Ohio Constitution.").
188. Cf. id. at 1142 (holding that "an economic or financial benefit alone" is not a public use).
189. See Kelo, 125 S. Ct. at 2673 (O'Connor, J., dissenting) (accepting takings to eliminate blight as a constitutional example of "public use").
190. See supra note 21 and accompanying text.
191. See supra note 73-75 and accompanying text.
192. The Connecticut Supreme Court, for example, recognized this concern. Kelo v. City of New London, 843 A.2d 500, 543, aff'd, 125 S. Ct. 2655 (2005) ("[A]n exercise of the eminent domain power is unreasonable . . . if the facts and circumstances of the particular case reveal that the taking specifically is intended to benefit a private party.").
193. See Norwood, 853 N.E.2d at 1124 ("A private, limited-liability company, Rookwood Partners, Ltd. . . . entered discussions with Norwood about redeveloping the appellants' neighborhood."); see also Sparks, supra note 95, at 1779 ("In 2002, a development group approached the City Council of Norwood, Ohio with a redevelopment project proposal, and asked the council to exercise its power of eminent domain to aid in the project.").
194. See supra notes 24-26 and accompanying text.
195. See Kelo, 843 A.2d at 536 (distinguishing the case at hand from problematic takings for economic development on the basis of the "carefully considered development plan" at issue).
196. See, e.g., id. at 544 (analogizing the standard of review of the development plan to that which would be applied to "contractual" restraints).
197. See supra note 29 and accompanying text.
198. See Kelo, 843 A.2d at 545 ("We . . . conclude that the trial court properly determined that the significant state involvement in this project . . . functions to provide a level of governmental oversight beyond that provided by the development corporation.").
199. See supra text accompanying notes 127-128, 143.
200. Kelo, 843 A.2d at 544 n.63.
201. Id. at 545 n.64.
202. See supra text accompanying note 138.
203. Kelo, 843 A.2d at 545 ("[T]here are sufficient assurances that the public use of the development plan will be carried out.").
204. See id. at 536 ("[R]esponsible judicial oversight over the ultimate public use question does much to quell the opportunity for abuse of the eminent domain power.").
205. See supra notes 88-89 and accompanying text.
206. See supra note 180 and accompanying text.
207. See supra note 181 and accompanying text.
208. See Kelo, 843 A.2d at 558-62 (analyzing the market for a class A office building).
209. Id. at 528 n.39; see also Kelo v. City of New London, 125 S. Ct. 2655, 2667-68 (2005) ("The disadvantages of a heightened form of review are especially pronounced in this type of case.").
210. Interestingly, it is unclear what precedent the court was relying on to engage in this parcel-specific analysis.
211. See supra note 147.
212. See supra Part III.
213. New London culled through no fewer than six city development plans to create its final plan. See supra note 29.
214. Several courts have explicitly held that property ownership is a fundamental right, e.g., City of Norwood v. Horney, 853 N.E.2d 1115, 1129 (Ohio 2006), which typically demands heightened scrutiny review, Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997). In property law, however, this conclusion does not necessarily follow. See ConocoPhillips Co. v. Henry, 520 F. Supp. 2d 1282, 1318-19 (N.D. Okla. 2007) (explaining that the U.S. Supreme Court does not protect all aspects of property rights, though fundamental, under substantive due process).
215. See, e.g., Lee, supra note 11, at 139-40 (referring to Norwood and noting "the judiciary may yet be the branch that restores new life to the principle that constitutional limits do exist with respect to eminent domain"); Elisabeth Sperow, The Kelo Legacy: Political Accountability, Not Legislation, Is the Cure, 38 MCGEORGE L. REV. 405, 424-25 (2007) ("Norwood exemplifies that additional legislation is not needed for state court judges to adopt and follow their own standards of review."); see also Sparks, supra note 95, at 1793-94 (warning future state supreme courts away from adopting Norwood's void-for-vagueness rationale).
216. See, e.g., Sperow, supra note 212, at 426-27 (advocating that political accountability is a superior check on eminent domain abuse than are state courts); see also Recent Case, City of Norwood v. Horney, 853 N.E.2d 1115 (Ohio 2006), 120 HARV. L. REV. 643, 648-49 (2006) (challenging the Ohio Supreme Court's assumption in Norwood that contractors will inevitably exert more influence on the political process than would the collective voice of individual property owners).
217. Some have argued that Justice O'Connor's concerns over economic development project benefits actually adhering to the public have already been realized because many urban renewal projects have failed. See, e.g., Lovell, supra note 183, at 627-28 ("Not only is [urban renewal] generally thought to be ineffective, it is also considered to cause more harm than good.").