Property II

Public Use

In determining whether something is a public use, the public purpose test is used.

Public Purpose

As long as a taking is rationally related to a legitimate public purpose within the scope of the government's police power, the public use requirement of the Fifth Amendment is satisfied. Kelo.

  • To eliminate a blight. Burban.
  • To eliminate extreme wealth. Hawaii Housing Authority.
  • To promote economic development. Kelo.

The federal restriction presented in Kelo is the minimum purpose required, but states can and do set stricter requirements,as seen in County of Wayne, which limited it to three situations:

  1. Where "public necessity of extreme sort" requires collective action
  2. Where the property remains subject to public oversight after transfer to a private entity
  3. Where the property is selected because of "facts of independent public significance," rather than in the interest of the private entity to which the property is eventually transferred

These situations are valid public purposes under the federal restriction as well.