Recent Developments in Challenging the Right to Take in Eminent Domain

33 Pages Posted: 5 Mar 2010

See all articles by Robert H. Thomas

Robert H. Thomas

William and Mary Law School; Damon Key Leong Kupchak Hastert, LLP

Date Written: February 25, 2010


True or false: “when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.” Still true, technically speaking: legislative determinations about whether a taking is in the public interest are entitled to a high degree of judicial deference if challenged. But after the U.S. Supreme Court’s decision in Kelo v. City of New London, that phrase no longer means that if the government wants to take property, the courts will simply rubber stamp it. Kelo reinvigorated judicial and public interest in the Public Use requirement of the Fifth Amendment and its counterparts in state constitutions and courts nationwide are more willing to examine the reasons for a taking than ever before.

This article summarizes recent developments in litigation challenging the ability of condemning authorities to take property. There were couple of blockbuster cases from New York state courts, and these cases are summarized in Part I, but overall, the developments in the law were incremental. Consequently, this article will focus not only on cases where public use was challenged, but will include in Part II cases where other limitations on the eminent domain power such as delegation and choice of forum were analyzed. Finally, Part III summarizes recent cases involving recovery of attorneys fees for unsuccessful condemnations, an issue which is sure to grow should courts continue to be more willing to invalidate takings.

Keywords: eminent, domain, condemnation, pretext, kelo, takings, coupe, franco

Suggested Citation

Thomas, Robert H., Recent Developments in Challenging the Right to Take in Eminent Domain (February 25, 2010). Available at SSRN: or

Robert H. Thomas (Contact Author)

William and Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

Damon Key Leong Kupchak Hastert, LLP ( email )

1003 Bishop Street
Honolulu, 96813
United States

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