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Kelo v. City of New London: Expanding Public Uses

By: Matthew C. Lucas

It’s not often that an eminent domain case generates water cooler conversation. But the Supreme Court’s Kelo v. City of New London, --- S.Ct. ---, 2005 WL 1469529 (June 23, 2005) decision has captured headlines across the nation, while stirring a broad public debate over property rights, the extent of government power, and, indeed, the very meaning of our Constitution.

The dispute revolved around an economic development plan. High unemployment and a dwindling population convinced New London officials to pursue community-wide economic revitalization. City planners drafted a broad development plan that included commercial buildings, new homes, and even a river walk. Their plan, however, required extensive governmental acquisition of property for distribution to private developers.

Several New London homeowners challenged the propriety of the taking, asserting that the condemnation of their homes failed to satisfy the Public Use Clause of the Fifth Amendment.[1] The case wound through the Connecticut courts until, on certiorari, the issue was presented to the U.S. Supreme Court: can an economic development plan—in which property would be transferred from one private owner to another for the ostensible benefit of the community—constitute a valid public use under the Fifth Amendment?

In a 5-4 decision that generated four separate opinions, the Court found that it could. Justice Stevens, writing for the majority, was persuaded that the City’s “carefully formulated” development plan demonstrated a sufficient public use to support a taking under the Constitution. 2005 WL 1469529 at * 8. Tracking the gradual liberalization of the Public Use Clause, the Court reasoned that its definition of a public use is broad enough to encompass a governmental transfer of property from one private party to another so long as the underlying purpose of that transfer meets some identifiable public need.[2]

In this regard, the majority’s justices showed extraordinary deference to local governance:

Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation… [F]or more than a century our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.

Id. at * 7. A State may enact more stringent public use thresholds, or it may (as Connecticut had) declare that economic redevelopment is a valid public use of acquired property.[3]

It remains to be seen how New London will impact Florida’s jurisprudence. The deference the Court afforded to local legislatures in New London must be read in the context of Connecticut’s eminent domain scheme. Section 8-186 of the Connecticut General Statutes declares a broad State interest in acquiring property pursuant to development plans, equating acquisition of unified lands for “the continued growth of industry and business” to be a public interest.

The Florida legislature has yet to make such a sweeping pronouncement. Section 166.411, Florida Statutes, which enumerates municipalities’ eminent domain powers, contains no counterpart to Section 8-186. Indeed, Florida’s Community Redevelopment Act, Fla. Stat. §§ 163.330, et seq., while authorizing takings in furtherance of economic redevelopment, curtails that authority by requiring a governing body to first determine that the targeted property constitutes a “slum or blighted area.” Even in such instances, the condemning authority must further demonstrate that a particular property is needed for the planned redevelopment.[4] The propriety of the taking, then, does not turn simply on the development plan, no matter how “carefully considered” it might be; rather, the condemning authority must demonstrate the necessity of the specific property to be acquired.

On the other hand, it could be argued that the New London Court has interpreted the Public Use Clause of the U.S. Constitution to require only the “public purpose” threshold Florida law already recognizes.[5] In any event, just as New London has struck a chord of public discourse, it will surely find its way into the advocacy and, perhaps, the rulings of Florida’s courts.

[1] “[N]or shall private property be taken for public use, without just compensation.” U.S. Const. Fifth Amendment. The phrase, “public use,” within the Amendment has historically been construed as a preliminary restriction on the government’s power to condemn property in eminent domain. Brown v. Legal Foundation of Washington, 538 U.S. 216, 231-32 (2003).

[2] Principally, the Court relied upon its decisions in Berman v. Parker, 348 U.S. 26 (1954) (federal act properly empowered District of Columbia to condemn department store owner’s property as part of redevelopment plan for neighboring blighted areas) and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (Hawaiian statute authorizing transfer of lands from fee simple owners to lessees demonstrated sufficient public use in light of oligopolistic ownership of the State’s private lands).

[3]Justice O’Connor led a four-justice dissent, arguing that the majority had misapplied the Court’s prior holding in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), an opinion she had written. While recognizing that the Court’s precedent allowed transfers to private entities, it did so only in situations where the precondemnation use of the property “inflicted affirmative harm on society.” Justice Thomas’s dissent urged the Court to abandon its prior holdings altogether, and limit the eminent domain power to instances in which the government acquires ownership of property for its own use (e.g., a military base) or for the public’s lawful employment of the property (e.g., a highway).

[4]See Katz v. Dade County, 367 So. 2d 277, 278-279 (Fla. 3d DCA 1979); City of Jacksonville v. Moman, 290 So. 2d 105, 107 (Fla. 1st DCA 1974).

[5]See Fla. Const. Art. X, § 6; Baycol, Inc. v. Downtown Dev. Authority of the City of Ft. Lauderdale, 315 So. 2d 451, 455 (Fla. 1975) (“[o]ur decisions have, however, consistently allowed an incidental private use where the purpose of the taking was clearly and predominantly a public purpose.”); Dept. of Transportation v. Fortune Federal Savings and Loan Ass’n, 532 So. 2d 1267, 1270 (Fla. 1988) (distinguishing term “public purpose” as broader in its application than the term “public use”).