The Death of Poletown: The Future of Eminent Domain and Urban Development after County of Wayne v. Hathcock

Abstract:     
In Kelo v. City of New London, the Supreme Court held that economic development is a public use under the Fifth Amendment, but offered property owners some solace in federalism. Justice Stevens noted that many States already impose 'public use' requirements that are stricter than the federal baseline, citing the Michigan Supreme Court's July 29, 2004 decision in County of Wayne v. Hathcock. In Hathcock, the Michigan Supreme Court unanimously reversed its famous 1981 Poletown decision, holding that economic development is not a public use under the eminent domain provision in Michigan's constitution.

But was Justice Stevens justified in citing Hathcock as an example of a stricter limitation on the use of a state's eminent domain power? This essay suggests that he may not have been. Using the failed takings revolution as a backdrop, this essay examines how bright-line rules typically become nullified in practice by alternative standards-based regimes. In takings, this occurred with the narrowing of the Lucas rule and the reaffirmation in Lingle v. Chevron this past June that the standards-based Penn Central inquiry is the default regulatory takings test. Something similar may occur under Hathcock, because the Michigan Supreme Court identified a standards-based exception to its bright-line rule prohibiting economic development in the use of eminent domain power - blight removal. As a standards-based legal regime, blight doctrine provides substantial discretion to local authorities in determining if property is blighted. Courts routinely defer to these policy judgments by public authorities. The result is that this standards-based exception may ultimately swamp the bright-line rule - economic development may continue with the aid of the state's eminent domain power under the rubric of blight removal. If this occurs, then Justice Stevens's paean to stricter state rules is mistaken, and property owners in Michigan and in the other states that have adopted blight exceptions to prohibitions on economic development are no more safe under their state constitutions than under the federal constitution.

Keywords: eminent domain, Fifth Amendment, public use, takings, Kelo, Hathcock, Poletown

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