What’s Mine is Yours: Takings After Kelo

by Jarrett Szczesny February 9 2012, 10:51

“The sacred rights of property are to be guarded at every point. I call them sacred, because, if they are unprotected, all other rights become worthless or visionary.” Supreme Court Justice Joseph Story, 1852.


Security in ones’ property has been a fundamental tenant of our society since its inception.  The Fifth Amendment enumerates this vital right and has served as a refuge against the government unjustly interfering with individual property rights for centuries. But, as judicial interpretation develops over time, a startling trend has emerged that could profoundly shape the future of the taking of private lands by the government. The landmark case of Kelo v. City of New London marked a radical shift in what could be construed as a legitimate taking based on a state’s police power. (1) This ruling has resulted in many states drafting new legislation in an attempt to temper the controversial ruling. (2) Regardless of how the legislature approaches the issue, it is clear that the takings landscape has fundamentally changed in ways that were unintended and unforeseen. Have we entered an age of disintegrating property rights? 

Turning Point

Takings are a vital component of many public improvement projects such as schools, bridges, and roads. However, courts have slowly expanded the justifications for takings to include more than pure public use situations. Berman v. Parker allowed the taking of a non-blighted department store in a blighted area because the government had adopted a legitimate end, in this case, slum eradication, and could use any means to fulfill it. (3) In Hawaii Housing Authority v. Midkiff, the government upheld the transfer of lands from the hands of the original owners to the leaseholders to prevent over concentrated land ownership in the area. (4) Both these cases exhibit takings of non-blighted lands that were then turned over for less than purely public interests. It is within this slow shift away from requiring purely public use that Kelo was decided. 

Kelo established that the condemnation of non-blighted homes for retransfer to private urban redevelopment did not violate the “Public Use Clause” in the fifth amendment of the constitution. (5) This ruling greatly expanded the uses the government could apply to justify a taking. As a result of this ruling, most states have introduced or passed legislation that limits or forbids condemnation for retransfer to private revitalization groups. (6) However, an analysis of the after affects show that “anti-Kelo legislation has been mostly utilized in States where revitalization condemnation has not been utilized and least successful where it has been most utilized.” (7) Thus, the battle over takings remains in full force. 

The Aftermath

Since the ruling in Kelo, significant expansion in what constitutes a valid taking has occurred in some states. In dealing with government-selected redevelopers, a New York court held potentially extortionist tactics to be acceptable. (8) The developer demanded substantial payments from certain parcel owners in exchange for not condemning their property. (9) When the parcel owners refused, the village condemned their property. (10) The court held no equal protection violation, nor any unconstitutional exaction. Thus, the condemnation of their parcels was valid. (11)

In conjunction with a massive Brooklyn renovation project, an entire neighborhood was condemned to make room for residential towers, a basketball stadium, and other amenities that would lead to primarily private, not public, gain. (12) Although the area could hardly be considered blighted, the court allowed the taking because they considered the issue to be one for the legislature, not the courts. (13) In a similar case that dealt with the same development, the court held sufficient public use even though the development primarily benefited Bruce Ratner, the developer behind the project. (14) In explaining the public use, the court held that the new sports arena was a well-established public use. (15) 

Finally, a massive project to relocate the campus of Columbia University, a private university, was found to be valid even though a large part of the project required the government to exercise its eminent domain powers. (16) The court held that, “assistance to private as well as public universities constituted public uses.” (17)  

While these cases highlight situations found primarily in New York, a state notorious for its approval of nearly all takings, it still goes to show how little recourse property owners can have against takings if the state is pitted against them. Analysis of these cases seems to highlight the fact that once a trivial amount of public use is established, courts no longer look to the balance between public and private benefit.

Public Housing: An Easier Injustice

While not an actual taking in the traditional sense, government condemnation of public housing has expanded in startling ways. The Chicago Housing Authority (“CHA”) has condemned all 53 of Chicago’s public housing high-rises to make room for new developments. Residents have been forced to find other housing, many times to no avail due to the negative stigma that accompanies public housing residents. Although the condemnation was done in the name of better future housing for low-income residents, these benefits have been slow to develop, if at all.

Nearly two years after the projects were torn down, reports estimate that 2,202 families are still unaccounted for from an initial 16,500 originally displaced. Some of these families probably left due to dissatisfaction with the CHA, while others merely remain as question marks. Of those originally displaced families, only 11% currently live in the brand new mixed-income developments that replaced the torn down project housing. This has left a significant number of families to find housing using CHA waivers, or to merely abandon the program altogether and rely on family and friends for suitable housing.

These startling facts highlight just how far government can go to achieve what they consider to be a reasonable result. It is no surprise to find that a large portion of the condemned public housing high-rises were in Cabrini Green, a notoriously crime ridden area that borders some of Chicago’s finest enclaves such as the Gold Coast. While the sole justification for condemning these properties surely was not some form of slum eradication, it begs the question of what did the CHA have to gain from their actions as opposed to what they had to lose by not acting.    

The Time Is Now

As time passes after Kelo and legislatures and courts decide how to shape the future of their states property rights respecting takings, it is clear that a crucial juncture approaches. The ability to be secure in one’s property could become a relic of the past if rulings like those in New York proliferate.

The justifications for the expansion of takings are not without merit. With municipalities struggling to generate tax revenues and meet budget, it is understandable that they would welcome a potential savior under the guise of a large corporation’s new business park or a high-rise development. But at what cost? Public use takings, and obviously condemnation of public housing, disproportionately affect poor and underrepresented groups. The potential scenario is a bulldozing of blighted housing for the benefit of private interests supported by a proclamation for greater public value. The issue presents a slippery slope, as greater deference is given to merely having a plan with little actual analysis of what the plan espouses or promotes, courts may begin to accept things at face value. Once this occurs there is little turning back due to settled expectations and judicial deference to the matter.   

Firmness must come from the legislature. Those in power have the ability to shape future legislation to create fairness and justice within the takings doctrine. The legislature can establish bright line rules that guide courts to establish reasonable bounds that will ensure property owners feel safe in their rights. Kelo greatly shook every property owner’s security in this fundamental right; it is now time for state legislatures to respond accordingly to re-instill confidence for every citizen.  

 Footnotes:

1.     Steven J. Eagle, Steven J. Eagle on Eminent Domain for Urban Revitalization Five Years After Kelo, Matthew Bender & Company, Inc., 2010, at 2, available at LexisNexis 2010 Emerging Issues 5280.

2.     Id.

3.     Berman v. Parker, 348 U.S. 26, 35 (D.C. 1954)

4.     Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (Haw. 1984)

5.  Kelo v. City of New London, 545 U.S. 469, 486 (Conn. 2005)

6.  Steven J. Eagle on Eminent Domain for Urban Revitalization Five Years After Kelo, at 2.

7.  Id.

8.     Didden v. Village of Port Chester, 322 F. Supp. 2d 385, 389 (S.D.N.Y. 2004)

9.     Id. at 388.

10.    Id.

11.  Id. at 390. 

12.     Goldstein v. New York State Urban Development Corp., 921 N.E. 2d 164, 167 (N.Y. 2009)

13.     Id. at 190.

14.     Goldstein v. Pataki, 516 F.3d 50, 64 (N.Y.S.D. 2008)

15.     Id. 

16.     Kaur v. New York State Urban Development Corp., 892 N.Y.S.2d 8, 28 (N.Y. App. Div. 2009)

17.     Id. at 29.

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