Maintaining government accountability: Calls for a "public use" beyond eminent domain

Indiana Law Journal

Volumn 83, Issue 3, 2008, Pages 1097-1119

  Knapp, Gregory S ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 49049097285     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (146)

1. Estate of A.B., 1 Tuck. 247, 249 (N.Y. Surr. Ct. 1866).
2. Henry Clay, Speech at Ashland, Ky. (Mar. 1829).
3. 545 U.S. 469 (2005).
4. See, e.g., Scott Bullock, The Specter of Condemnation, WALL ST. J., June 24, 2006, at A11 (characterizing the approval of the taking of private property for economic development in Keo as "the most universally despised Supreme Court decision in decades," setting off "a nearly unprecedented, grass-roots backlash against eminent domain abuse . . .");
5. Michael Corkery & Ryan Chittum, Eminent Domain Backlash Threatens Some Projects, CHI. TRIB., Aug. 14, 2005, at 39 (reporting on public opinion regarding eminent domain, which, in the wake of Kelo, was overwhelmingly against the taking of private property for economic development);
6. Dan Haar, Plan Expertly Before Grabbing, HARTFORD COURANT, July 31, 2005, at D1 (characterizing Kelo as "a touchstone for a nationwide uprising against 'eminent domain abuse'").
7. "[N]or shall private property be taken for public use, without just compensation." U.S. CONST. amend. V. As used herein, the "public use provision" refers to the "for public use" language of the Fifth Amendment.
8. See discussion infra Part I for an overview of the criticism of the Supreme Court's deferential review of economic development takings.
9. 348 U.S. 26 (1954).
10. Id. at 28.
11. Id. at 32-33.
12. Id. at 33.
13. 467 U.S. 229 (1984).
14. Id. at 242.
15. Eight members of the Court joined the opinion in Midkiff (including the author, Justice O'Connor), but Justice Marshall took no part in the case.
16. Midkiff, 467 U.S. at 241.
17. Id. at 240.
18. 545 U.S. 469 (2005).
19. Id. at 472.
20. Id. at 484.
21. Midkiff, 467 U.S. at 241.
22. Kelo, 545 U.S. at 478.
23. Id. at 484.
24. See Steven M. Simpson, Judicial Abdication and the Rise of Special Interests, 6 CHAP. L. REV. 173 (2003) (arguing that rational basis review of laws affecting economic and property rights encourages special interest legislation). In the context of economic development takings, Simpson states that a deferential judicial standard allows the condemnation of private property "on little more than legislative fiat." Id. at 198
25. (citing DANA BERLINER, PUBLIC POWER, PRIVATE GAIN: A FIVE-YEAR STATE-BY-STATE REPORT EXAMINING THE ABUSE OF EMINENT DOMAIN (2003), http://www. castlecoalition.org/pdf/report/ED_report.pdf.
26. See Nicole Stelle Garnett, The Public-Use Question as a Takings Problem, 71 GEO. WASH. L. REV. 934 (2003) (arguing for a heightened "means-ends" standard of review of economic development takings on the ground that rational basis review permits the exploitation of eminent domain against the politically unorganized);
27. Ilya Somin, Overcoming Poletown: County of Wayne v. Hathcock, Economic Development Takings, and the Future of Public Use, 2004 MICH. ST. L. REV. 1005, 1008-10 (observing that the "economic development rationale" is so broad that it can justify any exercise of eminent domain, making economic development takings particularly prone to abuse by powerful commercial interests at the expense of the poor).
28. See Ashley J. Fuhrmeister, Note, In the Name of Economic Development: Reviving "Public Use" as a Limitation on the Eminent Domain Power in the Wake of Kelo v. City of New London, 54 DRAKE L. REV. 171, 213 (2005) (attacking judicial deference toward economic development takings as fostering "interest group capture" of the eminent domain power, allowing special interests to acquire land at a lower cost than that of the free market); Stephen J. Jones, Note, Trumping Eminent Domain Law: An Argument for Strict Scrutiny Analysis Under the Public Use Requirement of the Fifth Amendment, 50 SYRACUSE L. REV. 285, 301-02 (2000) (criticizing the judiciary for erroneously presuming that economic development takings result from a truly democratic process, when in fact special interests often abuse the eminent domain power to acquire land more cheaply than the open market price
29. (citing RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 354-55 (1993))).
30. See Fuhrmeister, supra note 24, at 207-09 (distinguishing economic development takings from "traditional" takings in that the asserted public benefits derived from the former, such as increased jobs and taxes, are not guaranteed but contingent on the future success of the private transferee).
31. See id. at 208 ("When the public purpose derived from a taking is merely a fortuitous side-effect of the subsequent private use, it is difficult to see how the public benefit is paramount to the private benefit."); Somin, supra note 23, at 1011 (emphasizing that the lack of accountability placed on private recipients to deliver the public gains contemplated by the taking "creates an incentive . . . to rely on exaggerated claims of economic benefit . . ."); Haar, supra note 4 (urging a drawback from Kelo's permissive standard for approving economic development takings, "not because private property rights are sacred," but because the asserted benefits of the taking may not materialize due to "shoddy planning").
32. Ivan C. Dale, Economic Development Incentives, Accountability Legislation and a Double Negative Commerce Clause, 46 ST. LOUIS U. L.J. 247, 256-57 (2002) (decrying states' and localities' seemingly irrational decisions to offer economic incentives to attract business with no guarantee of a return public benefit);
33. see also Peter M. Agnetti, Comment, Are You Still Master of Your Domain? Abuses of Economic Development Takings, and Michigan's Return to "Public Use" in County of Wayne v. Hathcock, 79 ST. JOHN'S L. REV. 1259, 1273-74 (2005) (suggesting that, without a federal standard of holding private recipients of condemned land accountable to deliver promised economic benefits, states and localities will "race to the bottom" in their competitive attempts to attract private developers).
34. See James Geoffrey Durham, Efficient Just Compensation as a Limit on Eminent Domain, 69 MINN. L. REV. 1277, 1306 (1985) (arguing that, because "[s]pecific demoralization costs appear to be greater for eminent domain actions than for other governmental actions," they should factor into the costs of taking private property); Garnett, supra note 23, at 944-49 (citing background research in support of the proposition that a fair market valuation of condemned property does not take into account the property owner's psychological losses).
35. Durham, supra note 28, at 1301; see also Garnett, supra note 23, at 938 (arguing for a stricter standard of review of economic development takings on the ground that fair market monetary compensation does not necessarily cover all of the condemnee's losses).
36. 198 U.S. 45 (1905).
37. Id. at 56.
38. Id. at 53.
39. Id. at 61.
40. See, e.g., Rebecca E. Zietlow, Exploring a Substantive Approach to Equal Justice Under Law, 28 N.M. L. REV. 411, 418-19 (1998) (characterizing the Lochner Court as an "agent of the wealthy" in its establishment of substantive economic rights and noting that no such constitutional protection has been extended to the economic rights of the poor).
41. Lochner, 198 U.S. at 56.
42. Id. at 64.
43. 291 U.S. 502 (1934).
44. Id. at 538.
45. Id.; see also W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937) ("Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the legislature is entitled to its judgment.").
46. 508 U.S. 307 (1993).
47. Id. at 313; see also Heller v. Doe, 509 U.S. 312, 320 (1993) ("[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." (quoting Beach Commc'ns, 508 U.S. at 315)).
48. Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984).
49. Nebbia, 291 U.S. at 525. Indeed, nowhere in the Beach Communications or Heller opinions does the word "arbitrary" appear.
50. Beach Commc'ns, 508 U.S. at 318 (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)).
51. See id. at 313 (noting that the Fourteenth Amendment "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices"); Nebbia, 291 U.S. at 531.
52. See Paul Boudreaux, Eminent Domain, Property Rights, and the Solution of Representation Reinforcement, 83 DENV. U. L. REV. 1, 16 (2005) (suggesting that the Supreme Court has not developed a heightened scrutiny standard for eminent domain controversies, despite the sharp criticism of its takings jurisprudence, because "eminent domain was carried along in the wide stream of judicial deference to economic regulation in the twentieth century").
53. See Kelo v. City of New London, 545 U.S. 469, 490 (2005) (Kennedy, J., concurring) (noting that the Midkiff public use requirement - that a taking be "'rationally related to a conceivable public purpose'" - "echoes the rational-basis test used to review economic regulation" (quoting Midkiff, 467 U.S. at 241)); Midkiff, 467 U.S. at 243 ("[E]mpirical debates over the wisdom of takings - no less than debates over the wisdom of other kinds of socioeconomic legislation - are not to be carried out in the federal courts."); Berman v. Parker, 348 U.S. 26, 32 (1954) (indicating that the principle of deference toward social legislation "admits of no exception merely because the power of eminent domain is involved").
54. See discussion supra Part II.
55. See discussion supra Part I.
56. See Paul R. Verkuil, Public Law Limitations on Privatization of Government Functions, 84 N.C. L. REV. 397, 417-21 (2006) (comparing past public frustration over the seeming inefficiencies of government bureaucracy with the modern recognition of the essential role of the government in overseeing the provision of defense and entitlement programs);
57. David Brooks, Editorial, From Freedom to Authority, N.Y. TIMES, May 14, 2006, at 12 (contrasting the conservatism of the 1970s and 1980s, which viewed less government as desirable for enhancing freedom, with that of the present, which fears not "bureaucrats possessing too much control" but "ungoverned sources surging out of control").
58. See Verkuil, supra note 50, at 418 (arguing that privatization has reached its limits in that civil services have been contracted out to such an extent that insufficient government personnel are available to conduct oversight on the provision of those services).
59. See discussion infra Part IV.
60. See, e.g., DAVID M. WALKER, U.S. GOV'T ACCOUNTABILITY OFFICE, GAO'S HIGH-RISK PROGRAM, GAO-06-497T, at 13-15 (2006) (reporting on the DOD's continued failure to hold contractors accountable for delivering services as promised, resulting in billions in wasted expenditures).
61. See U.S. GOV'T ACCOUNTABILITY OFFICE, CONTRACT MANAGEMENT: DOD VULNERABILITIES TO CONTRACTING FRAUD, WASTE, AND ABUSE, GAO-06-838R, at 3-6 (2006) (noting that the DOD's expenditures on services provided by the private sector have increased just as the size of its acquisition workforce has decreased, subjecting more public funds to the risk of waste, fraud, and abuse).
62. See, e.g., Verkuil, supra note 50, at 441 (characterizing the conflict in Iraq as a "bonanza" for private contractors); James Glanz, Series of Woes Mar Iraq Project Hailed as Model, N.Y. TIMES, July 28, 2006, at A1 (reporting on the failure of an American construction company to complete a children's hospital, "the latest in a series of American taxpayer-financed health projects in Iraq to face overruns, delays, and cancellations");
63. Frank Rich, Editorial, The Road from K Street to Yusufiya, N.Y. TIMES, June 25, 2006, at 13 (decrying the Bush Administration's "lax privatization of [Iraq's] reconstruction" with "pet companies and campaign contributors and without safeguards or accountability to guarantee results").
64. See WILLIAM T. WOODS, U.S. GOV'T ACCOUNTABILITY OFFICE, HURRICANE KATRINA: PLANNING FOR AND MANAGEMENT OF FEDERAL DISASTER RECOVERY CONTRACTS, GAO-06-622T, at 6-7 (2006) (reporting that federal agencies deployed insufficient personnel to oversee private contractors hired to provide disaster relief in response to Hurricane Katrina).
65. See, e.g., Editorial, At Their Bidding-Katrina Works Out Well for Administration's Friends, PITT. POST-GAZETTE, Sept. 20, 2005, at B6 (comparing the government's "leisurely response" to the Katrina catastrophe with the speed with which no-bid contracts were awarded "to politically well-connected firms whose names you may recognize from the roster of those rebuilding Iraq");
66. Molly Ivins, Editorial, Hurricanes Bringing Out Corruption, BUFFALO NEWS, Sept. 28, 2005, at A7 (criticizing the award of $1.5 billion in no-bid contracts for Hurricane Katrina relief by the Federal Emergency Management Agency (FEMA) as indicative of a "pattern of crony contracts" and "corporate clout" in the Bush Administration); Rich, supra note 55 (attributing the inadequate response to Hurricane Katrina to poor leadership at FEMA, which had been privatized to such an extent that "there was little government left to manage the disaster").
67. See Judy Coleman, The Powers of a Few, the Anger of the Many, WASH. POST, Oct. 9, 2005, at B2 (suggesting that, while the use of eminent domain may be the only way to attract the private investment necessary to rebuild New Orleans, "[t]he urgency of government planning . . . is offset by the fact that the first contracts went out to some of the usual suspects").
68. See, e.g., Editorial, Backlash, BALT. SUN, NOV. 8, 2006, at 22A (attributing the shift in party power resulting from the 2006 congressional elections to voters' frustration with political corruption, abuse of power, and special-interest projects);
69. Judy Sarasohn, Under Bush, the Revolving Door Gains Speed, WASH. POST, Oct. 27, 2005, at A25 (suggesting that the movement of personnel between the private and public sectors "contributes to a cynicism about government - who is making policy and why, and who is making money off public service").
70. See Coleman, supra note 58 (characterizing the backlash against Kelo not as a genuine defense of American property values, but as a "deeper distrust" that government operates as a "too-eager partner of private interests").
71. See BERLINER, supra note 22, at 3 (identifying the states' "widespread abuse of eminent domain . . . for private benefit and private profit").
72. See discussion infra Part IV.B.
73. See, e.g., Act of Oct. 3, 2006, ch. 84, § 1(a)(1), 2006 Alaska Sess. Laws (finding that Kelo "demonstrates that an overly expansive application of eminent domain powers can be a threat to the property rights of all private property owners"); Act of May 18, 2006, ch. 192, 2006 Kan. Sess. Laws 1345 (presenting as the purpose of eminent domain legislation a reaction against the U.S. and Kansas Supreme Courts' approval of the taking and transferring of private property from one private party to another . . .");
74. CASTLE COALITION, INST. FOR JUST., 50 STATE REPORT CARD: TRACKING EMINENT DOMAIN REFORM LEGISLATION SINCE KELO 33 (2007), http://www.castlecoalition.org/ pdf/publications/report_card/50_State_Report.pdf (observing that the Governor of New Hampshire signed eminent domain legislation on the one-year anniversary of the Kelo decision).
75. Haar, supra note 4 (emphasis added).
76. See discussion supra Part III.A.
77. See William A. Fischel, The Political Economy of Public Use in Poletown: How Federal Grants Encourage Excessive Use of Eminent Domain, 2004 MICH. ST. L. REV. 929, 934 (comparing the "embarrassingly visible" nature of abuses of eminent domain with less politically costly means of granting special favors, such as tax breaks and deregulation);
78. Audrey G. McFarlane, The New Inner City: Class Transformation, Concentrated Affluence and the Obligations of the Police Power, 8 U. PA. J. CONST. L. 1, 6 (2006) (noting that the most publicized controversies surrounding urban renewal projects involve eminent domain, and the individual property owner who resists condemnation "becomes an embodiment of the status quo in the face of structural change and often an inadvertent champion of community interests").
79. See discussion supra Part III.A.
80. Durham, supra note 28, at 1307 (comparing the targets of eminent domain proceedings, who directly observe the consequences of government actions that adversely affect them, with federal taxpayers, who do not directly link particular government actions with which they disapprove to their individual tax burdens).
81. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 343-48 (2006) (observing that federal taxpayers have no standing to challenge tax or spending policies by virtue of their status as taxpayers and holding that state taxpayers also lack such standing).
82. See Garnett, supra note 23, at 944 (suggesting that the taking of a home imposes a burden on the homeowner that is far greater, even with just compensation, than that imposed on the taxpayers who must pay for the compensation).
83. U.S. CONST. amend. V.
84. See Simpson, supra note 22, at 198 (acknowledging but criticizing the fact that courts have not read the public use provision as providing protection of property rights any greater than the minimal protections afforded to other, non-enumerated economic rights); discussion supra Part II.
85. See discussion supra Part II.
86. Kelo v. City of New London, 545 U.S. 469, 489 (2005) (emphasizing that nothing in the Court's decision precludes states from imposing greater restrictions on economic development takings, either as a matter of state constitutional law or through eminent domain legislation).
87. See discussion supra Part III.
88. 892 A.2d 87 (R.I. 2006).
89. Id. at 92-93.
90. See id. at 93.
91. Id. at 103 (quoting Romeo v. Cranston Redev. Agency, 254 A.2d 426, 434 (R.I. 1969)).
92. See id. at 104.
93. See id. at 104-05.
94. Id. at 106.
95. Id.; see also id. at 104 ("The City of New London's exhaustive preparatory efforts that preceded the takings in Kelo, stand in stark contrast to EDC's approach in the case before us.").
96. See id. at 103 (acknowledging that "traditional notions of public use . . . must yield to 'the ever changing conditions of our modern society' such that 'what constitutes a public use necessarily [varies] with the changing conceptions of the scope and functions of government'" (quoting Romeo, 254 A.2d at 431)) (alteration in original).
97. See discussion supra Part III.
98. See Parking Co., 892 A.2d at 101 ("[A] legislative determination on the issue of public use . . . will be accorded deference by this Court, but is not dispositive.").
99. 768 N.E.2d 1, 11 (Ill. 2002).
100. Id. at 9.
101. Id. at 10.
102. Id. at 9-10.
103. 727 A.2d 102, 111 (N.J. Super. Ct. Law Div. 1998).
104. Id. at 104 (quoting City of Atl. City v. Cynwyd Invs., 689 A.2d 712, 721 (N.J. 1997)); see also Twp. of W. Orange v. 769 Assocs., L.L.C., 800 A.2d 86, 94 (N.J. 2002) (affirming that New Jersey courts do not apply "heightened scrutiny" to economic development takings, but rather a "manifest abuse of discretion test").
105. CRDA, 727 A.2d at 110.
106. Id. at 105.
107. Id. at 111.
108. In addition to the state cases discussed herein, see also Bailey v. Myers, 76 P.3d 898, 904 (Ariz. Ct. App. 2003) (invalidating under the state constitution the taking of a business at the request of a private developer as not "'really public'"); Avalon Bay Cmtys., Inc. v. Town of Orange, 775 A.2d 284,302 (Conn. 2001) (setting aside the Town's plan to take the property of a housing developer for construction of an industrial park as adopted in "bad faith" and as a mere pretext to prevent affordable housing); In re Redevelopment Authority of City of Philadelphia, 891 A.2d 820, 831 (Pa. Commw. Ct. 2006) (invalidating the City's forced transfer of property to religious entities to construct a private school as made under the mere pretext of a public purpose).
109. Not every pre-Kelo decision invalidating economic development takings relied on the narrow ground of preventing egregious abuses of the political process. In County of Wayne v. Hathcock, 684 N.W.2d 765, 782 (Mich. 2004), the court established heightened protections against economic development takings, holding that transfers of condemned property to a private entity satisfy the public use requirement of the Michigan Constitution only if the entity remains accountable to the public in its use of the land. However, the practicability of the Michigan Supreme Court's requirement that the property "remain[] subject to public oversight after transfer to a private entity," id. at 783, is questionable. See Agnetti, supra note 27, at 1270-74 (stating that the Hathcock decision "left readers and real property owners guessing as to how liberally [the public accountability] exception will be applied by the judiciary" and suggesting alternatives for enforcing the promises of private developers through public oversight); Boudreaux, supra note 46, at 5 (criticizing proposed reforms to the Supreme Court's deferential review of exercises of eminent domain, including the Hathcock formula, as "likely to lead courts into an inextricable bog of trying to assess and weigh the benefits of public development projects - a fact-finding job that is a legislative, not judicial, function"); Rachel A. Lewis, Note, Strike That, Reverse It: County of Wayne v. Hathcock: Michigan Redefines Implementing Economic Development Through Eminent Domain, 50 VILL. L. REV. 341, 366-67 (2005) (noting that the Hathcock court did not indicate what level of control over the private developer's use of the condemned property would have satisfied the "public use" requirement). In any event, one could agree with the Michigan Supreme Court that some level of heightened scrutiny of economic development takings is appropriate, while still agreeing with this Note's premise that courts choosing to apply such heightened review should not do so for the mere expressive purpose of disapproving of Kelo.
110. See Simpson, supra note 22, at 199-200 (characterizing the takings in SWIDA and CRDA as abuses of eminent domain to "dole out special favors").
111. 853 N.E.2d 1115, 1123 (Ohio 2006).
112. Id. at 1146.
113. Id. at 1123.
114. Id. at 1135.
115. See id. at 1142-46.
116. See id. at 1127 (indicating that the lower state court accepted the City's conclusion that the property was within a "deteriorating area" based on evidence that failing to implement a comprehensive development plan "could lead to impairment of sound growth, an economic liability and a menace to the public welfare").
117. Id. at 1141.
118. 136 P.3d 639 (Okla. 2006).
119. Id. at 650.
120. Kelo v. City of New London, 545 U.S. 469, 503 (2005) (O'Connor, J., dissenting).
121. See Lowery, 136 P. 3d at 644 (indicating that the lower state court had authorized the taking on the ground that it was necessary for the installation of water lines that "'are necessary for the private electricity generation plant to operate, for the benefit of Muskogee County residents and the general public'").
122. See R.I. Econ. Dev. Corp. v. Parking Co., 892 A.2d 87, 103 (R.I. 2006) (embracing a liberal, evolving view of "public use" and affording broad discretion to the legislature in its decision to exercise eminent domain); discussion supra Part II.
123. The federal government, of course, also has eminent domain powers. However, the controversy surrounding eminent domain abuse largely focuses on condemnations by state authorities. See DANA BERLINER, OPENING THE FLOODGATES: EMINENT DOMAIN ABUSE IN THE POST-KELO WORLD (2006), http://www.castlecoalition.org/pdf/publications/floodgates-report.pdf (documenting condemnation proceedings either planned or initiated by local governments since the 2005 Kelo decision). Further, the legislative approach advanced by this Part is based on the efforts of state governments to restrict their authority to exercise eminent domain.
124. CASTLE COALITION, supra note 63, at 1.
125. See discussion supra Part III.
126. ALASKA STAT. § 09.55.240(d)-(f) (2006); KAN. STAT. ANN. §§ 26-501a(b), -501b(f) (Supp. 2006).
127. UTAH CODE ANN. § 78-344(2)(b) (Supp. 2007).
128. GA. CONST. art. IX, § 2, ¶ VIII(a).
129. FLA. CONST. art. X, § 6(c) (prohibiting transfers of condemned property to a private party "except as provided by general law passed by a three-fifths vote of the membership of each house of the Legislature").
130. See supra notes 22-24 and accompanying text.
131. MINN. STAT. ANN. § 117.0412(2)(a) (West Supp. 2007).
132. GA. CODE ANN. § 22-1-10(a)(1), (3) (Supp. 2007).
133. E.g., GA. CODE ANN. § 22-1-10(a)(2), (d) (Supp. 2007); IOWA CODE ANN. § 6B.2D(1) (West Supp. 2007).
134. MO. ANN. STAT. § 523.250 (West Supp. 2007).
135. See Boudreaux, supra note 46, at 47-48 (arguing that the level of scrutiny applied to exercises of eminent domain should focus not on the end use of the property or the economic benefit bestowed on private recipients, but on the affected property owner's ability to participate in the political process); Clayton P. Gillette, Kelo and the Local Political Process, 34 HOFSTRA L. REV. 13, 14-18 (2005) (suggesting that private property rights are best protected by political safeguards and that the Supreme Court upheld the taking in Kelo precisely because these safeguards were in place).
136. See supra notes 25-27 and accompanying text.
137. LA. CONST. art. I, § 4(B)(1), (3) (barring the taking of private property except for "public purposes," which do not include "economic development, enhancement of tax revenue, or any incidental benefit to the public"); MICH. CONST. art. X, § 2 ("'Public use' does not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenues."); COLO. REV. STAT. ANN. § 38-1-101(b)(I) (West 2007) (disallowing "the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenue" as not a "public use"); GA. CODE ANN. § 22-1-1(9)(B) (Supp. 2007) ("The public benefit of economic development shall not constitute a public use."); IDAHO CODE ANN. § 7-701A(2)(b) (Supp. 2007) (prohibiting the exercise of eminent domain for "the purpose of promoting or effectuating economic development"); IOWA CODE ANN. § 6A.22(2)(b) (West Supp. 2007) (excluding economic development activities from the definitions of "public use," "public purpose," and "public improvement"); KY. REV. STAT. ANN. § 416.675(3) (LexisNexis Supp. 2006) (prohibiting the "condemnation of private property for transfer to a private owner for the purpose of economic development that benefits the general public only indirectly, such as by increasing the tax base, tax revenues, employment, or by promoting the general economic health of the community"); MO. ANN. STAT. § 523.271 (West Supp. 2007) ("No condemning authority shall acquire private property . . . for solely economic development purposes."); NEB. REV. STAT. ANN. § 76-710.04(1) (LexisNexis Supp. 2006) (disallowing a taking that is "primarily for an economic development purpose"); N.H. REV. STAT. ANN. § 162-K:2, IX-a(b) (LexisNexis Supp. 2006) ("[P]ublic use shall not include the public benefits resulting from private economic development and private commercial enterprise, including increased tax revenues and increased employment opportunities."); N.D. CENT. CODE § 32-15-01(3) (Supp. 2007) ("[A] public use or a public purpose does not include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health."); TENN. CODE ANN. § 29-17-102(2) (Supp. 2006) ("'Public use' shall not include either private use or the indirect benefits resulting from private economic development and private commercial enterprise, including increased tax revenue and increased employment opportunity . . . ."); TEX. GOV'T CODE ANN. § 2206.0001(b)(3) (Vernon Supp. 2006) (prohibiting the taking of private property "for economic development purposes, unless the economic development is a secondary purpose"); VT. STAT. ANN. tit. 12, § 1040(a) (Supp. 2006) (disallowing a taking that is "primarily for purposes of economic development"); W. VA. CODE ANN. § 54-1-2(a)(11) (LexisNexis Supp. 2007) ("[I]n no event may 'public use' . . . be construed to mean the exercise of eminent domain primarily for private economic development.").
138. Kelo v. City of New London, 545 U.S. 469, 479 (2005) (dismissing a narrow definition of public use as "impractical given the diverse and always evolving needs of society").
139. See Theodore C. Taub, Post-Kelo: Emerging Impacts and Issues in Eminent Domain, SM004 A.L.I.-A.B.A. 1721, 1772 (2006) (questioning the appropriateness of the legislative response to Kelo in light of the fact that "[r]edevelopment is a necessary tool in enhancing the public's quality of life");
140. Terry Pristin, Developers Can't Imagine a World Without Eminent Domain, N.Y. TIMES, Jan. 18, 2006, at C5 (commenting on the legislation passed in the wake of Kelo and suggesting that "weakening or destroying the power to condemn property will seriously undermine efforts to rehabilitate decaying cities and might even hinder the rebuilding of New Orleans").
141. Critics of the result in Kelo may argue that the taking of private property for the purpose of economic development is not in any event justifiable. See, e.g., Charles E. Cohen, Eminent Domain After Kelo v. City of New London: An Argument for Banning Economic Development Takings, 29 HARV. J.L. & PUB. POL'Y 491, 497-98 (2006) (acknowledging that Kelo was the right result under Supreme Court precedent but arguing that, because economic development takings are unjust and not particularly effective at revitalizing economically distressed areas, legislatures should ban them). However, one can question the wisdom of economic development takings while still accepting this Note's premise that, to the extent that legislatures desire to deprive themselves of this significant redevelopment tool, they should do so not as a hasty, expressive reaction against the abuse of public power that Kelo has come to represent, but as a carefully considered determination that the public costs of economic development takings outweigh the public benefits.
142. Kelo, 545 U.S. at 483.
143. MO. ANN. STAT. § 523.039 (West Supp. 2007).
144. KAN. STAT. ANN. § 26-501b(f) (Supp. 2006).
145. See supra notes 28-29 and accompanying text.
146. See R.I. Econ. Dev. Corp. v. Parking Co., 892 A.2d 87, 104 (R.I. 2006) (interpreting Kelo as requiring "good faith and due diligence" on the part of a condemning authority); Gillette, supra note 123, at 17 (concluding that the Supreme Court's reasoning in Kelo implicitly imposed a requirement that a taking be free from "any apparent political process failure").