53 Pages Posted: 18 Jan 2009 Last revised: 8 Apr 2010
Date Written: January 17, 2009
Tragically, the victims of eminent domain takings for private development tend to be those least prepared to fight against it. The Supreme Court exacerbated this unfortunate fact in the landmark case Kelo v. City of New London, where it held that the government can use the power of eminent domain to take a person’s home for the purpose of private development that might improve the community’s economy. While Kelo generated many effective eminent domain reform bills in the states, this seminal case foreclosed a golden opportunity to restore meaningful protection for property rights under the Public Use Clause. This ruling made challenging eminent domain takings for private development under the Fifth Amendment a daunting, if not impossible, task. Because eminent domain takings incongruously fall on the poor, uneducated, or minorities who have difficulty competing in the political process, Kelo greatly impacted the ability of the weakest parts of society to keep their own homes free from the path of the bulldozer. This Article proposes a novel alternative avenue to challenge these takings and guarantee equal protection from eminent domain.
In 2000, five years before Kelo, the Supreme Court held in Village of Willowbrook v. Olech that plaintiffs can establish a class of one under the Equal Protection Clause. Historically, equal protection suits required that the plaintiff define a class based on certain inherent conditions, such as race, nationality, or gender. Under the class of one approach, a single person can present himself as a class irrespective of these characteristics. Despite the recency and prominence of Olech, the scholarly literature has largely overlooked this significant ruling, having underestimated its ability and propensity to implement a fundamental revolution in modern equal protection jurisprudence. This Article seeks to shed light on this powerful but largely neglected precedent.
Prior to Olech, plaintiffs arguably could only establish classes based on inherent characteristics, such as race or religion. However, after Olech, homeowners can establish a class of one (i.e., the person whose home the government takes) if their property is singled out for eminent domain while other similarly situated properties are not. The singled-out homeowner or homeowners can bring suit to challenge the arbitrariness of the decision to take the property.
While many plaintiffs have used Olech to challenge zoning and other land use restrictions, none to date have proposed using the Olech rule to challenge an eminent domain taking for private development. This Article argues that an Olech claim is an essential mechanism to enable homeowners — especially the poor, uneducated, or minority citizens whose participation in the political process is more difficult and less effective than political insiders — to challenge the different treatment and rationality of an eminent domain taking for private development.
Suggested Citation: Suggested Citation
Blackman, Josh, Equal Protection from Eminent Domain: Protecting the Home of Olech’s Class of One (January 17, 2009). Loyola Law Review, Vol. 55, p. 697, 2009. Available at SSRN: https://ssrn.com/abstract=1329344