Living in the Past: The Kelo Court and Public-Private Economic Redevelopment

Abstract:     
This Article analyzes the Supreme Court’s most recent foray into redevelopment - the controversial case of Kelo v. City of New London. Over angry dissents by the Court’s conservatives, an unenthusiastic Justice Stevens validated New London’s condemnation of single-family homes for a mixed-use commercial development. The case ignited a
firestorm of opposition. Property rights advocates, moving beyond the dissenters’ arguments, introduced legislation in most states and in Congress which would terminate the use of condemnation to assist economic redevelopment for any purpose. This Article critiques both the majority opinion and dissents in light of the modern practice of public private economic redevelopment. It argues that the majority opinion fails to elucidate the economic and social activity involved, and that the facts in Kelo are unrepresentative of modern redevelopment - a productive and necessary cure for land use market failure in center cities. This public-private collaboration catalyzes the revitalization of downtowns, facilitates infill development, and produces much of the nation’s affordable housing. Where such redevelopment requires the use of eminent domain, its exercise is essential against economically motivated owners who refuse to participate in the redevelopment and hold out for untenable prices. The exercise of eminent domain rarely involves condemnation of residential uses, and when so directed, now requires relocation and produces compensation that usually exceeds fair market value. This Article proposes that modern public-private economic redevelopment commingles public and private uses, public and private ownership, and public and private gain in ways that renders inapposite and un-administrable both the majority’s view of land use and the dissenters’ proposed litmus tests for acceptable use of eminent domain. Finally, this Article contends that Justice O’Connor’s dissent clashes inexplicably with principles of deference she herself articulated in the Court’s last pronouncement on redevelopment, that the dissenters’ policy complaints are decades out-of-date, and that the America the Justices would reinstate lies in the irretrievable past.

Number of Pages in PDF File: 60

Keywords: Economic redevelopment, Kelo v. City of New London, single family homes, mixed use commercial development, property rights

Accepted Paper Series