Did Kelo Leave Any Limits on Eminent Domain?


A federal lawsuit filed yesterday by Brooklyn property owners and tenants promises to test whether Kelo v. New London, last year's Supreme Court case approving the use of eminent domain for economic redevelopment, left any meaningful limits on the government's authority to forcibly transfer land from one private owner to another. The majority in Kelo said the prospect of jobs and increased tax revenue can be enough to justify condemnation, but it suggested that officials need "a carefully considered development plan" and emphasized that they may not seize land "simply to confer a private benefit on a particular private party." The plaintiffs in the Brooklyn case, who are challenging a huge redevelopment project in Prospect Heights that relies on eminent domain, charge that the project was developed without a comprehensive plan, competitive bidding, or meaningful public input and that it is driven exclusively by the interests of the developer, the Forest City Ratner Company. "This is not merely favoritism of a particular developer in the classic sense," their complaint says. "Here, the 'favored' developer in fact is driving and dictating the process, with government officials at all levels obediently falling into line. This is precisely what the Fifth Amendment's Takings Clause forbids." Since the government no doubt will argue that the project mainly serves the public interest and only incidentally benefits Forest City Ratner, the case could indicate how deferential the courts will be following Kelo in reviewing the process by which public officials reach such determinations.