Real Estate & Property Law

The Euclidization of Public Use - A Dose of Reality For the Kelo Majority

By rht

In Kelo v. City of New London, 545 U.S. 469 (2005), the majority opinion authored by Justice Stevens, framed the issue presented in terms of the validity of "the development plan," and not whether the particular takings at issue were "for public use."

The disposition of this case therefore turns on the question whether the City's development plan serves a "public purpose."

Relying upon Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the case which upheld a municipality's power to zone provided it is exercised in the context of a "comprehensive plan," the Kelo majority upheld the New London taking because it was supposedly the product of a well-considered plan of "comprehensive character."

The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including--but by no means limited to--new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

Failing to see the differences between comprehensive planning (looking at land uses as a whole, rather than spot-zoning) and "comprehensive eminent domain" (I guess the more the government plans to take, the more deference its plan is due?), the Court seems to have a rather romantic vision of economic development and urban renewal plans. 

To inject a dose of reality, take read of a story entitled Urban renewal project in L.A. begets blight instead, the L.A. Times tells the tale of urban renewal gone wrong,

It was supposed to have been a model of urban renewal -- a mix of housing and classy stores to replace a decaying 20-acre shopping center at the foot of the affluent Baldwin Hills.

Instead, more than a year after the project was to be completed, Santa Barbara Plaza is a collection of dead or dying businesses surrounding a vast parking lot with weeds pushing through large cracks. Most of the housing was never built; none of the retailers ever came. The largely middle-class, African American area is stuck with a mostly deserted commercial slum.

Los Angeles leaders gambled on a check-bouncing, politically connected developer to shepherd the project. And after $15 million in government subsidies and more than $30 million in private investment, taxpayers -- and the community -- have lost.

Complete story here.  I wish I could say that the Santa Barbara Plaza story was atypical, but it isn't. 

Full post as published by inversecondemnation on April 28, 2008 (boomark / email).