Property II, Pages 30–41

Kelo v. City of New London

Supreme Court of the United States, 2005


Defendant city was buying land for a development project to improve the city economically when a pharmaceutical company was to move into the area. While most the land was purchased from voluntary sellers, the nine plaintiffs refused to sell their lands. The city condemned plaintiffs' lands, despite being in good condition, to seize them under eminent domain.

Procedural History:

  • Trial court granted a permanent restraining order prohibiting the taking of plaintiffs' properties that was being taken to support the state park and marina, but denied plaintiffs' relief as to the properties to be taken to build office space.

  • The Connecticut Supreme Court held that all the proposed takings were valid as they were reasonably necessary for the reasonably foreseeable need of economic development, which counted as a public use.


Is economic development a public use?


While not being blighted, defendant was allowed to determine that the area was sufficiently poor economically distressed to justify this economic development plan. A state statute allows taking the citizens' land for such a purpose. We cannot consider each homeowner's individual situation, only the overall plan, which unquestionably serves a public purpose.

Plaintiffs want a new rule to be adopted saying that economic development is not a public use that allows that taking people's land, but this proposed rule is not the current rule. Something does not have to be publicly owned to be for a public purpose. Hypothetical consequences of this will be considered when they come up. It is not up to the courts to oversee that such a taking will actually provide economic benefit. This would impede such plans, so the cities should have the final say.

If states disagree, they can pass laws that will fix eminent domain.


Yes, economic development is a public use of land that is seizable through eminent domain.



Concurring Opinion:

Kennedy: While economic development is enough of a reason to take people's land, some other cases might need more judicial review to make sure that it is actually a public use.

Dissenting Opinion:

O'Connor: The public use requirement helps protect the security of property, one of the most important functions of government. This ensures that property will not be taken by the majority from one who cannot defend himself politically. Precedent also holds that a private taking would not be a public use if it would not serve a legitimate purpose of government. In the cases cited by the majority allowing takings for economic development, the private lands were clearly bad for society by either being extremely poor or extremely rich. The objective was not what was done with the land after taking it away, but merely eliminating what was already there, so it did not matter that it was given to private entities afterwards.

Here, the plaintiffs' well-maintained homes are not bad for society. If they were held to be, anyone's building could be taken to be replaced with a private business. If they were held not to be, any private building could be taken to be replaced with any other private building as long as it increased taxes, jobs, or looked better. Thus, the majority practically eliminates any constitutional restrictions on eminent domain.

While there is troubling wording in the majority's cited cases, this was dicta and not tested against the Constitution. The majority claims the courts will continue to ensure that there is a public benefit from eminent domain takings but does not outline what this requires, so it is hard to imagine that anyone failing it. It also implies that the new use must be better than the old, but there will always be something that could be better than the current property, so no property is secure under this.

While states can impose additional restrictions, enforcing the Constitution is our responsibility, not theirs.