Kelo and Planning
The Impact of the Supreme Court Decision

By Charles R. Everett, Jr., Principal and Jean S. Everett, Esq.

The United States Supreme Court’s decision in Kelo v. City of New London has received much attention in the media and among interested parties throughout the nation. Conservative commentators characterize the decision as a continued assault by the Court on individual rights intended to be protected by the Fifth Amendment to the U. S. Constitution. Liberal commentators take the opposite view. Property owners facing condemnation have a more personal view of the decision, caring less about those arguments, than about the circumstances under which government may take their property and the compensation to be paid for their property.

One thing is certain, as the American Planning Association proclaimed about the Kelo decision, the opinion underscores the importance of the planning process for local governments and residents.

A brief summary of Kelo facts is necessary to understand the significance of deliberative municipal planning to the lawful exercise of governmental powers including eminent domain.

New London, Connecticut has in the past few decades fallen on hard economic times, stemming from the loss of manufacturing and military jobs. Like many Rust Belt cities, it faces high unemployment and a declining population. In 1990, the State designated it a “distressed municipality.” State and local officials targeted an area known as Fort Trumbull on the Thames River , the site of a former naval facility. In January 1998, the State authorized approximately $15 million for planning efforts by the City and establishment of a State Park in the Fort Trumbull area. In February 1998, Pfizer Inc., an employer with a large facility nearby, announced a $300 million research and development facility adjacent to the Fort Trumbull area.

After study, consideration of alternatives, public input, and local and State approvals, the City established an integrated development plan for the Fort Trumbull area covering approximately 115 private properties and a 32 acre site formerly occupied by the naval facility. A State Park now occupies a portion of the plan area.

The plan addresses development of 7 parcels within the area for specified uses including public access to the State Park and waterfront, a small urban village of restaurants and shops, a marina, approximately 80 residences in an urban neighborhood setting linked to the public areas, a museum, and research and development office space linked to the Pfizer site. Developers selected by the City must agree to develop the areas in accordance with the integrated development plan.

Although the City had the power of eminent domain, it proceeded first to acquire many of the properties through negotiation. The Kelos own property located in the area of the development plan.

The Court considered two questions. First, is a taking of private property to implement an economic development plan a “public use”? Second, assuming that effectuating an economic development plan constitutes a “public use,” what standard should apply to determine whether a particular taking violates the Fifth Amendment?

In response to the first question, the Court held that “providing economic development is a traditional and long accepted function of government” and constitutes a public purpose for which government may exercise the power of eminent domain. To the second question, the Court considered whether the taking is reasonably necessary to achieve the intended public purpose.

Applying this standard to the Kelo facts, the Court found that taking of the petitioners’ property was permissible under the Fifth Amendment because the taking was being “executed pursuant to a ‘carefully considered’ development plan.”

According to the Practice of State and Regional Planning, “the purpose of planning is to affect the future in a positive way.” Properly executed, the process progresses in a sequential and logical manner to analyze and solve a problem through appropriate decision-making.

Planning, if it is to be truly successful, however, must be more than a technical exercise pursued by planning professionals, or a perfunctory process employed by public officials to justify a pre-determined course of action. To effectively address the future in a positive way, policy makers must involve the public at each step in the process.

Policy makers have a duty to listen to citizens’ views and consider them throughout the planning process. Prior to adopting a plan, policy-makers must strive to achieve consensus among affected parties, to the extent possible. It is this interactive, responsive and open process employed by New London which the Court relied upon in the Kelo case.

Certainly, over the years, we can find examples of abuse of eminent domain by government officials who lacked integrity or misused the planning process encouraged by developers who saw eminent domain as an opportunity to profit at taxpayer expense. Whatever the case and your own personal perspective, the Supreme Court was clear in its message.

An open thoughtful planning process provides the necessary forum for deliberative decision-making through public dialogue. Such a process results in adoption of a comprehensive development plan which not only affects the future in a positive way, but provides a framework for the lawful taking of private property in the public interest.

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