Rarely does a single issue generate such an intense reaction as the recent U.S. Supreme Court decision on Kelo v. City of New London. That ruling allowed the City of New London, Conn., to use its right of eminent domain to seize waterfront properties from local residents for a private development project expected to bring jobs and tax revenues to the economically distressed city.

The controversial 5-4 decision acknowledged that the U.S. Constitution prohibits a “taking” whose “sole purpose” is to transfer one person’s private property to another private person. More importantly, at the heart of the Kelo decision was the Court’s affirmation that the power to decide what “public purpose” is, and when eminent domain can be used for economic development, lies with local and state governments.

The resulting public response to the Court’s decision has been widespread and almost always unanimous in its outrage. A recent national poll shows more than 80 percent of Americans strongly disagree with the Court’s decision and the use of eminent domain in private development initiatives. Even Justice O’Connor disagreed with the Court’s action through her dissenting minority opinion, stating that after Kelo “the specter of condemnation hangs over all property.”

Yet many argue the Kelo decision does not substantially change eminent domain or grant new authority that didn’t already exist. What the Kelo decision does do is point out the role of state and local governments in setting standards for how eminent domain can be used. As a result, in state legislatures and even in Congress, the future of eminent domain is now being decided. More than 30 states have revised or are now reconsidering their eminent domain laws. The changes being proposed include tightening the definition of “public purpose,” clarifying the requirements for community involvement, and, in some cases, placing a temporary moratorium on the use of eminent domain. Even Congress has gotten in the act by introducing measures to limit the use of federal funds in eminent domain projects.

Eminent domain, through its very nature to condemn and take property, is almost always controversial. Many do believe eminent domain should be only used as a last resort and avoided whenever possible. But doing away with eminent domain and its use in economic development projects is not the answer. In fact, when used wisely, eminent domain can be an extremely effective tool for community revitalization. Preservationists should be aware that the backlash and resulting firestorm of legislation coming from the states may cause more harm than good.

We need to ensure that eminent domain is not misused and a better decision-making process is offered. What preservationists should demand is a more open public process and objective guidelines for assessing the true economic impacts of a proposed project.

For a more thorough discussion on the eminent domain debate, go to  Kelo Commentary for Members of the Historic Preservation Community and www.cluegroup.com/Kelo.html. For a list of states proposing eminent domain legislation, go to http://www.ncsl.org/documents/natres/EminentDomainPost-Kelo.pdf.

Publication Date: March/April 2006