Was Kelo a significant change in the law? Five Justices of the Supreme Court said no, and four said yes. So there’s no clear answer to that question.
But one thing about Kelo had never been expressly stated by the Supreme Court before. After Kelo, it is permissible under the US Constitution for government to seize private property regardless of the condition of that property, as long as the government rationally thinks that it would promote “economic development” to do so. The homes of Ms. Kelo and the other petitioners in that case were not “blighted” or otherwise in poor condition (to the contrary, the record showed that they had been well kept up). They simply had the bad fortune to be located in the parcel of land that Pfizer wanted.
That was the big news of Kelo. It has long been the law here in MA and elsewhere that the required “public use” or “public purpose” of an eminent domain taking is not destroyed simply because the property, once seized, is subsequently conveyed to a private party. Courts have generally recognized that property can sometimes be used most productively by private entities, and for many years have not restricted eminent domain to taking property solely for governmental uses (roads, post offices, etc.).
But at least in Massachusetts, the law has long been that (to quote a 1955 Opinion of the Justices) “the expectation that adjacent areas and the city as a whole will benefit through the increase of taxable property and of values [is only an] indirect public benefit [that] has never been deemed to render a project one for a public purpose.” Most Massachusetts cases upholding transfers of seized property to a private entity have noted that the seizure was undertaken in the course of “urban renewal,” or some other government program designed to remedy “blighted,” “decadent,” or “substandard” conditions.
As far as I know, Massachusetts courts have never held that a taking is permissible under the state Constitution solely for “economic development” purposes – urban renewal, slum clearance, blight removal, or some similar purpose was always part of it. And, as has been well publicized, 28 state legislatures post-Kelo have adopted new laws banning or greatly restricting takings for economic development, and at least one state Supreme Court (Ohio’s) has squarely rejected Kelo‘s reasoning that economic development without more is a “public purpose,” holding that the state Constitution barred such takings.
Does Chapter 40T purport to authorize “economic development” takings? Hard for me to say on a relatively quick read through it (anyone out there more immersed in it than I am care to comment?). But by authorizing the “special development district” to exercise eminent domain (with the city council’s or board of selectmen’s approval) without specifying what, exactly, the “public purpose” behind the taking is supposed to be, the chapter does seem to me to purport to allow a significant expansion of the use of eminent domain in Massachusetts (of course, the courts might find it unconstitutional, but that’s another story). The “special development districts” that Chapter 40T would set up don’t seem to be about blight removal or anything like that. Rather, they seem to be about economic development, pure and simple. Authorizing the use of eminent domain for that purpose would be a big step for Massachusetts, and I question whether it’s one we want to take.
Disclosure: I represent an entity contesting a taking of its property by eminent domain. The views expressed here are my own, and are not necessarily those of my law firm or my client.
To top it off David you have this news from Ohio breaking today as well!
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http://jurist.law.pi…
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(sorry I have to learn how to insert links…)
that I referred to in the post!
If you want to read an overview of the power of eminent domain under Mass. Law, look here
there’s another good study with a lot of history here.
Turns out the link I posted is the full version of the one in the previous comment. Anyway, it’s the same study. Note that the previous comment has an errant period in the link – you have to delete the last “.” to get it to work.
In a decision dated July 24, 2006, the SJC decided Central Steel v. Somerville Planning Board.
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In that decision, the SJC unanimously upheld the Somerville Planning Board’s 2002 “Major Plan Change” of the 1980 Urban Renewal Plan for the Assembly Square area of Somerville.
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Under the 2002 Plan, Central Steel’s property (which Central Steel owns and is not merely a tenant od) was designated as a parcel that could be taken by eminent domain by the Somerville Redevelopment Authority and then conveyed to the developers of Assembly Square so that they could build out a new mixed-use neighborhood. Other privately owned parcels in the area were also so designated.
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Central Steel basically argued that the 2002 amendments to the 1980 Plan were so substantial that a whole new plan ought to have been proposed and subjected to public review before being adopted. The SJC disagreed.
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Writing for the court, Justice Ireland said,
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“As we have stated, urban renewal plans have long lives and often require modification ‘after their initial approval to address changes in economic realities and urban conditions.’ St. Botolph Citizens Comm., Inc. v. Boston Redevelopment Auth., supra at 4. This was such a change. The 2002 major plan change was a logical extension of the 1980 plan; it used the primary goals of the 1980 plan to fit within a new vision of Assembly Square.”
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He went on to note that “[a]lthough identifying [Central Steel’s] property as an acquisition parcel marked a significant change in the [Central Steel’s] status under the plan, the plaintiffs were not unaware of this possibility.”
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Finally, the court noted that the 2002 Plan Change “provides that if the plaintiffs’ negotiations with a private developer fail, the SRA may take the parcel by eminent domain.” Thus, only if the Assembly Square developers cannot reach an agreement with Central Steel will the SRA step in and exercise eminent domain. I would think after this decision, Central Steel would have lost some bargaining power with the developers. Perhaps this is an area where the legislature could act so as to bolster protections for landowners against eminent domain while not running afoul of the US Supreme Court’s Kelo decision allowing such takings.
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What are other practical effects of this? Well, if a City has designated an area an “urban renewal area” under an old plan and wants to update that plan, then according to this decision, as long as the updated plan is “consistent with the goals” of the original plan, such a change has a decent shot at being upheld. This could have far-reaching effects in areas designated for urban renewal (which is most of downtown Boston, I believe…).
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Interesting stuff…
David, thanks for the analysis but one small (yet important) clarification in your post. You mention that the big change in Kelo is that private property can be seized “regardless of the condition of the property”. As stated, this is not entirely accurate.
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The change, such as it is, is to clarify that the takings clause does not prohibit all takings for economic development purposes, provided the taking is part of a “comprehensive” economic development plan that has gone through “thorough deliberation”. As far as “the condition of the property” — eminent domain law has never required that takings be of “blighted” property. Consider takings for a new public highway. These takings could be seized “regardless of the condition of the property”. More to the point, takings of land that will be given to a private corporation, such as a train corporation or other common-carrier, was ALREADY allowed under current law, regardless of the condition of the property.
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Obviously I believe strongly that Kelo marked a marginal move in eminent domain law, at most. But another aspect that needs to be stated is that the majority was absolutely right that individual states (courts and legislatures alike) have the right after Kelo to adopt more restrictive eminent domain procedures. This, as David notes, is exactly what has happened. This is a much better situation than the alternative, which would be an activist Supreme Court stepping in an outright banning all such takings everywhere regardless of the particular circumstances. Let the states decide, I say.
what I actually said was: “it is permissible under the US Constitution for government to seize private property regardless of the condition of that property, as long as the government rationally thinks that it would promote ‘economic development’ to do so.” That assertion seems to me fairly clearly limited to the “economic development” scenario – I had no intention of getting into classic public uses like roads and common carriers, which were not presented in Kelo and of course have never depended on the condition of the property. A big Pfizer operation is quite a different kettle of fish. I maintain that pure “economic development” takings had never before been squarely authorized by the Supreme Court.
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And I don’t agree that the limitations of Kelo are as clear as you claim. Yes, the Court looked to the allegedly “thorough deliberation” that the New London authorities went through before authorizing the taking – though you and I both know that there were lots of meetings with Pfizer before any decisions were made. But precisely what limitations Kelo placed on economic development takings is very unclear from the opinion and remains to be sorted out in future cases.
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Finally, I’m all for state legislatures acting to control economic development takings – no one has ever claimed that there’s anything to stop them from doing so. But that’s a separate question from the con law issue.
I disagree entirely that leaving the issue to state legislatures is “a separate question from the con law issue”. In fact, it all goes to the center of judicial philosophy in the con law area. Should the Court step in and adopt a bright-line rule, thus preventing states from acting in a entire wide area of constitutional law, or should it be wary of doing so, leaving the issue for individual states to debate? That is a very large question indeed, but it hits at the crux of constitutional jurisprudence every time (or many times, at least) that the Court deals with constitutional interpretation.
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I agree that the precise limitations for economic development takings remains unclear, as it should be (so to let the states deal with it and see what happens). However, the Court clearly indicated that 1) takings used purely for transfers to private parties remain unconstitutional, and 2) the door is open for future federal court challenges, based on the particular situation.
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I guess I also disagree that Kelo represents authorization of “pure” economic development takings in a way that hasn’t been authorized before. I suppose part of it may be that to me, the distinction between Pfizer and a common carrier (or other private individuals/corporations given land through takings) is not as sharp as some might say. Both are private entities that make a profit off the public, and do not allow unlimited public access on their property. Both are part of a plan to increase development. Given what eminent domain has been used for in the past (and which never created the type of outcry Kelo has), I fail to see the huge shake-up in the law that some claim Kelo represents.
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Now, had the court gone in the other direction, closer to what Scalia, et al. would like, it would be quite the shake-up, and might later help vindicate the disastrous “regulatory takings” jurisprudence advocated by some (mainly Federalist Society types).