A Stitch in Haste

"Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."
--Kelo v. New London, No. 04-108 (O'Connor, J. dissenting)

A property-owning family in Philadelphia has filed a civil rights lawsuit against the city's economic development agency for invoking eminent domain in order to give their land to FedEx so it can construct a more convenient driveway into and out of a distribution facility.

The interesting thing about the litigation is that the plaintiffs assert that the private-for-private seizure actually violates the ruling in Kelo v. New London:

[Attorney Susan] French said Kelo actually supports the Stein family's claim because the high court's 5-4 ruling upheld the taking of private property for another private use only when the decision is the result of a carefully developed economic plan.

In the majority opinion in Kelo, Justice John Paul Stevens found that the Fifth Amendment allows government to take private property for "public use," but that it is up to local governments, by and large, to define that term.

Ruling against the landowners, Stevens found that a city's carefully formulated economic development plan is entitled to deference — even if it mainly benefits private entities.

In the Stein family's case, French said, there was no such plan in place.

That's a cute theory, and it might even work. But I doubt it.

The spirit of Kelo is that local governments are to be given great deference in their definition of the Fifth Amendment's "public use" requirement, effectively rendering it a nullity. In other words, Kelo apologists will simply assert that a "carefully formulated economic development plan" is a sufficient condition to uphold the condemnation, but not a necessary condition. There is no reason to think that those jurists, on the Supreme Court or elsewhere, who believe that Kelo was correctly decided would suddenly flip-flop simply because a town lacked a "master plan."

The one exception might be Justice Kennedy, generally considered the "swing vote" in Kelo. His concurrence made clear his view that there could, theoretically, be improper private-for-private takings, but that Kelo didn't qualify.

In any event, I suspect that few if any eminent domain challenges, with or without master plans, will ever prevail so long as Kelo is considered good law (which hopefully won't be very long). It was clearly intended as a judicial green light rather than red or even yellow. Instead, I suspect that attention will increasingly turn to the other prong of eminent domain, the "just compensation" requirement.

The case is Down Under GFB Inc. v. City of Philadelphia.

POST SCRIPT: Want more? Then see this Coyote Blog post.