Institute for Justice Seeks to Overturn Kelo v City of New London

A preeminent advocate for the rights of property owners is petitioning the United States Supreme Court to hear an eminent domain matter with the hope that it will overturn a landmark decision in eminent domain law. 

The Institute for Justice (IJ), a non-profit law firm dedicated to protecting the rights of property owners, represents the condemnee in Bowers v. Oneida County Industrial Development Agency. In that case, the condemnor used eminent domain to acquire private property and transferred it to another private party for use as a parking lot. The New York Court of Appeals ruled that the government’s use of eminent domain was valid because the property had a commercial use. Based on United States Supreme Court precedent in Kelo v. City of New London, condemnors may take private property for the purpose of economic development even if the property ultimately goes to a private party.

IJ’s petition for certiorari can be found here. The organization hopes that the Court will overrule Kelo and set a standard more protective of property owners.

Understanding Kelo v. City of New London

To fully appreciate IJ’s pursuit of eminent domain reform, it is important to understand Kelo v. City of New London. In that case, the condemnor sought to acquire private property to attract businesses and increase tax revenue in an area considered to be in economic distress. The Court held that economic development is a permissible public use under the Fifth Amendment’s Takings Clause and sided with the condemnor. The Court’s broad interpretation of economic development has resulted in many redevelopment plans surviving judicial scrutiny. Since Kelo was decided in 2005, many lawyers and legal scholars have criticized it for allowing private parties to unjustly benefit from eminent domain at the expense of property owners.

In Kelo, the condemnees argued that judicial approval of takings should require a reasonable likelihood that the proposed public benefits will actually occur. However, the Court determined that such a rule would significantly hinder the completion of many plans. The standard set by Kelo allows a condemnor to justify the use of eminent domain by articulating a permissible purpose without demonstrating a likelihood of success.

Ironically, the proposed economic reform project in Kelo never took place. Instead of attracting businesses, the largely unutilized land has only managed to attract a colony of feral cats. Will There Finally be Some Development on the Land Condemned in Kelo v. City of New London?

Eminent Domain Reform in the U.S.

Although the Supreme Court acknowledged that states are free to provide greater eminent domain protections for property owners, not all states have adopted such measures. IJ has taken the liberty of grading every state’s eminent domain laws which can be found here. New York received a grade of F. According to IJ, not only has New York failed to reform its eminent domain laws since Kelo, but eminent domain abuse continues to take place in that state. New York Eminent Domain Laws. New Jersey did not fare much better, receiving a grade of D+. Given that Kelo has left shockwaves in eminent domain which continue to be felt across the United States, IJ urges states to reform their laws to provide greater protection against eminent domain abuse.

Will Kelo be Revisited?

Since Kelo was decided back in 2005, the Supreme Court has rejected opportunities to revisit that decision. One notable example is when the Court declined to review Eychaner v. City of Chicago, where a condemnor took private property to prevent it from possibly becoming blighted in the future (our post on the Supreme Court’s denial of certiorari can be found here). Bowers presents an excellent opportunity for the Court to create a new federal standard more protective of property owners.

Facing a Condemnation Action?

If you or someone you know is facing a condemnation action, consider the experienced attorneys at McKirdy, Riskin, Olson & DellaPelle. For over fifty years, our firm has advocated for the rights of New Jersey property owners. Our expertise has enabled us to successfully prevent the government’s abuse of eminent domain, and we have fought to ensure that our clients receive just compensation.

We commend IJ as it continues to fight for the rights of property owners across the United States.