Eminent Domain Kelo DISASTER May Finally Be Overturned -- Supreme Court Grants Writ of Certiorari.

Attention hurricane survivors, an upcoming pivotal Supreme Court case may provide more beneficial options for land owners; hang tight and please do not sell your land prematurely.

In "Kelo v. New London 2005," the Supreme Court ruled 5-4 that a city could use eminent domain to seize private property and sell it to private developers for economic development, even if the property was not blighted, as long as the city had a comprehensive development plan that would benefit the public, effectively defining "public use" broadly; this controversial decision sparked significant debate about the limits of government power to take private property for economic development purposes. “Such justifications for land takings, the majority argued, should be given deference. The takings here qualified as "public use" despite the fact that the land was not going to be used by the public. The Fifth Amendment did not require "literal" public use, the majority said, but the "broader and more natural interpretation of public use as 'public purpose.'" The Federalist Society.

Can the government take your property just to hand it over to your business competitor?

The Institute of Justice has been granted a writ of certiorari at the Supreme Court challenging the 2005 Kelo decision and the broad application of Public Use under the Takings Clause. A New York developer Bryan Bowers is asking the United States Supreme Court after New York’s courts said it was perfectly fine for a county redevelopment agency to condemn his property and give it to a rival developer to use as a private parking lot. In most states, that kind of one-to-one transfer of property between private owners would be forbidden—or at least be subject to serious judicial scrutiny

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That is the question New York developer Bryan Bowers is asking the United States Supreme Court after New York’s courts said it was perfectly fine for a county redevelopment agency to condemn his property and give it to a rival developer to use as a private parking lot. In most states, that kind of one-to-one transfer of property between private owners would be forbidden—or at least be subject to serious judicial scrutiny. In New York, though, it’s business as usual.

The question presented to the Supreme Court for consideration is whether Kelo v. New London should be overturned (it should). Does the Public Use Clause require something more than minimal rational basis review when the government takes land from one private owner outside the context of a comprehensive economic-redevelopment plan?

Petitioner Bowers Development, LLC, was under contract to buy land in upstate New York in the hopes of building a medical office building. Then the local government condemned that land for the express purpose of giving it to a different private corporation—one that was building a different medical office building and had asked for the Bowers land to use as its private parking lot. These facts are uncontested and were accepted by the New York Court of Appeals.

The question presented is whether this is allowed under the Public Use Clause. More specifically: Bowers Development was under contract to buy a lot in Utica, NY, near a newly built private hospital, which it thought would be a good site for a new medical-office building. But that plan never came to fruition because of Respondent Central Utica Building, LLC, which also had plans “to build a medical office building[,] on an adjoining property.”

Oneida County Industrial Development Agency OCIDA agreed. OCIDA thought Central Utica’s proposed office building would be an economic boom to the area, and it thought that reason enough to take Petitioner’s land and hand it over to its business rival. At the public hearing on the proposed condemnation, OCIDA recited asserted “public purposes” for the taking, which focused almost entirely on the economic benefits of Central Utica’s proposed private office building. Petitioner then challenged the decision to condemn and was initially successful: New York’s Appellate Division at first rejected the condemnation on statutory grounds, holding that a parking lot for a medical office building was a health-care use outside OCIDA’s statutory authorization to acquire property for “commercial” purposes.

The New York Court of Appeals reversed a lower court decision. In its view, the condemnation was statutorily authorized because “a parking facility used by the customers of a profit-making business plainly has a ‘commercial’ purpose.” Having resolved the statutory question, the Court of Appeals remanded for the Appellate Division to consider Petitioner’s remaining arguments— including whether building “a parking facility used by the customers of a profit-making business” was a public use under the Fifth Amendment’s Public Use Clause.

In Kelo v. City of New London, this Court held 5-4 that the Fifth Amendment’s Public Use Clause can be satisfied when property is taken for private development so long as the taking will generate some secondary benefit like economic development. 545 U.S. 469 (2005). Kelo did not, however, hold that the Public Use Clause is always satisfied by privateto-private transfers. Instead, it reaffirmed 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.”

At least three state supreme courts disagree and take Kelo’s caveats seriously. If this taking been attempted elsewhere, the result would have been different. Courts vary in their rationales, but three state supreme courts have held that the public-use inquiry requires more than mere rubber-stamp review—at least when the taking occurs in circumstances more suspicious than those in Kelo.

Pennsylvania: In one of the earliest statecourt decisions to grapple with Kelo’s warnings about pretext, the Pennsylvania Supreme Court concluded that the Public Use Clause requires courts to examine “the ‘real or fundamental’ purpose behind a taking . . . [because] the true purpose must primarily benefit the public.” Middletown Twp v. Lands of Stone, 939 A.2d 331, 337 (Pa. 2007). “This means that the government is not free to give mere lip service to its authorized purpose or to act precipitously and offer retroactive justification.” Id. at 338. The Pennsylvania courts therefore stress the existence of what the Kelo majority called a “‘carefully considered’ development plan” to justify a taking. Ibid. (citing Kelo, 545 U.S. at 478). And the mere existence of a plan is not enough: That plan must also be “tailored to the actual purpose” that justifies the condemnation “or it will be overturned as excessive.” Ibid. Rather than apply the limited rational-basis review the New York courts used here, Pennsylvania courts instead must ask whether the public purpose for the taking is “real and fundamental, not post-hoc or pretextual.

Rhode Island. The Rhode Island Supreme Court, like Pennsylvania’s, casts a more skeptical eye on takings that do not arise from Kelo-style planning processes. In Rhode Island Economic Development Corp. v. The Parking Co., that court rejected the proposed condemnation of a temporary easement of a parking garage after finding it was undertaken in bad faith. 892 A.2d 87, 106 (R.I. 2006). The government’s asserted purpose was to provide publicly managed public parking, but the overall circumstances of the condemnation suggested that it was actually meant to obtain an advantage in an ongoing negotiation with the garage owner. Id. at 102, 106. In reaching that conclusion, the Rhode Island court twice pointed to this Court’s reliance on the planning process in Kelo, which stood “in stark contrast to [the condemnor’s] approach in the case before us.” Id. at 104; see also id. at 106 (“[S]uch hasty maneuvering bears little resemblance to the comprehensive and thorough economic development plan that was undertaken and upheld by the United States Supreme Court in Kelo[.]”).

Hawaii. The Supreme Court of Hawaii similarly holds that Kelo allows “courts to look behind an eminent domain plaintiff’s asserted public purpose under certain circumstances.” County of Hawaii v. C & J Coupe Fam. Ltd. P’ship, 198 P.3d 615, 638 (Haw. 2008). The condemnation in that case was supported by sufficient “prima facie evidence of public purpose under a rational relationship test[,]” but that did not end the inquiry. Id. at 644. Instead, courts needed to “expressly consider the question of whether the taking was ‘clearly and palpably of a private character[.]’” Id. at 647. To be sure, the Hawaii court said it was conducting “rational basis” review, but it made equally clear that “where the actual purpose of a condemnation action is to bestow a benefit on a private party, there can be no rational basis for the taking.”

The argument for overturning Kelo is straightforward. The “doctrine of stare decisis . . . is at its weakest when [this Court] interpret[s] the Constitution because its interpretation can be altered only by constitutional amendment or by overruling [its] prior decisions.” Agostini v. Felton, 521 U.S. 203, 235 (1997). Each of the “several factors” this Court uses “in deciding whether to overrule a past decision” cuts sharply against retaining the Kelo rule. Knick v. Twp. of Scott, 588 U.S. 180, 203 (2019). Those factors—“the quality of [its] reasoning, the workability of the rule it established, its consistency with other related decisions, . . . and reliance on the decision”—are discussed next.

Both Justice O’Connor’s and Justice Thomas’s dissents were correct, and they have been proven more so by the passage of time. Both the Kelo majority and Justice Kennedy’s concurrence emphasized that nothing in the opinion was meant to disturb the longstanding principle that property may not be taken from A merely to give it to B. But, of course, as Justice O’Connor observed in dissent, in practice Kelo allows exactly that. 545 U.S. at 498 (O’Connor, J., dissenting). While this Court’s earlier cases had at most “sanction[ed] the condemnation of harmful property use,” Kelo took the guardrails off (almost) entirely, holding that any property could be taken and given to anyone else “so long as the new use is predicted to generate some secondary benefit for the public[.]” Id. at 501. After all, “nearly any lawful use of real property can be said to generate some incidental benefit to the public.” Ibid. So if an asserted incidental benefit will justify an A to B transfer, then “[t]he specter of condemnation hangs over all property.” Id. at 503.11 State courts, writing on a clean slate about their own constitutions, have acknowledged that Justice O’Connor’s opinion has the better of the argument.

The Kelo rule has also proven unworkable because, as illustrated by the perfunctory analysis conducted by the lower court in this case, it is no rule at all. Instead, it replaces the enumerated public-use requirement with a standard that allows the government to decide for itself what public use means.

Question Presented

The question presented is also important. In the 20 years since Kelo was decided, private-to-private condemnations have continued to create controversy and injustice—originally nationwide and now, regularly, in the states that have not limited Kelo under state law. The inability of courts to apply Kelo’s purported limitations has caused confusion for litigants and courts alike. And the decision has continued to receive sharp criticism from both legal scholars and Members of this Court.

That makes it exactly the sort of A to B transfer from one private property owner to another private property owner for economic development under a vague and ambiguous definition of public use by either city planners are government private-public partnerships -- justified only by the assertion of incidental benefits.

Current strategic buyout acquistion programs offer home owners that fall in FEMA floodplain zones substantially larger sums of money to sell than if they decide to rebuild on the property. Is this an incidental public use Takings as argued by Justice Connor and Justice Thomas?

Hopefully a narrowly defined Takings Test will be properly addressed at the Supreme Court. If a narrowly defined new Takings Test is defined at the Supreme Court, it should help elucidate when private-public partnership programs are appropriately applied to natural disaster recovery planning.

When is it ok for government planners to priotize projects over individual property owners -- respecting private property owners is essential to a free, just and prosperous society.

All my research and writings is out love of country and my fellow patriots. My purpose is to educate the public on government overreach and to help build back our country to the original principles of our founding fathers. Please consider a paid subscription or a one time donation to my buymeacoffee account and help support my efforts.

God Bless America.