Why Kelo is not a blank check

Last week marked the third anniversary of the Supreme Court’s ruling in Kelo v. New London. The first time I read Kelo, I thought what many Americans probably thought: that any government could seize property for any reason, so long as it compensated prior owners. But after having taught Kelo to law students several times over the past few years, I now realize that Kelo is much more complex. Kelo was a 5-4 decision, and Justice Anthony Kennedy wrote a separate concurrence. Because Justice Kennedy was the “swing vote”, his decision predicts future Court decisionmaking more accurately than the Court’s primary opinion, because a taking which fails to satisfy Kennedy might not be able to get five votes in the Supreme Court.

2 minute read

July 4, 2008, 12:46 PM PDT

By Michael Lewyn @mlewyn


Last week marked the third anniversary of the Supreme Court's ruling in Kelo v. New London. The first time I read Kelo, I thought what many Americans probably thought: that any government could seize property for any reason, so long as it compensated prior owners.



But after having taught Kelo to law students several times over the past few years, I now realize that Kelo is much more complex. Kelo was a 5-4 decision, and Justice Anthony Kennedy wrote a separate concurrence. Because Justice Kennedy was the "swing vote", his decision predicts future Court decisionmaking more accurately than the Court's primary opinion, because a taking which fails to satisfy Kennedy might not be able to get five votes in the Supreme Court.



Justice Kennedy wrote:




This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimis. The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city's purposes.




Thus, the taking in Kelo was valid only because:



1. The city jumped through the appropriate procedural hoops, such as creating "a comprehensive development plan" and other "elaborate procedural requirements";



2. The city of New London was in a "serious city-wide depression";



3. The economic benefits of the taking were more than "de minimis"; and



4. The ultimate beneficiaries of the taking were "unknown at the time the city formulated its plans."



If any of these requirements are not met, the validity of a taking becomes a close call. For example, suppose the city wants to bulldoze a subdivision in a reasonably prosperous suburb to build a Wal-Mart. Even if appropriate procedures are followed, factors 2 and 4 (city-wide depression and "unknown" beneficiaries) are not met. Thus, Kelo is not on point and does not require lower courts to uphold the city's decision. Does this mean the city automatically loses? No, but it does mean that a plaintiff who wishes to challenge the taking may have a plausible claim.







Michael Lewyn

Michael Lewyn is a professor at Touro University, Jacob D. Fuchsberg Law Center, in Long Island. His scholarship can be found at http://works.bepress.com/lewyn.

portrait of professional woman

I love the variety of courses, many practical, and all richly illustrated. They have inspired many ideas that I've applied in practice, and in my own teaching. Mary G., Urban Planner

I love the variety of courses, many practical, and all richly illustrated. They have inspired many ideas that I've applied in practice, and in my own teaching.

Mary G., Urban Planner

Get top-rated, practical training

Close-up of "Apartment for rent" sign in red text on black background in front of blurred building

Trump Administration Could Effectively End Housing Voucher Program

Federal officials are eyeing major cuts to the Section 8 program that helps millions of low-income households pay rent.

April 21, 2025 - Housing Wire

Logo for Planetizen Federal Action Tracker with black and white image of U.S. Capitol with water ripple overlay.

Planetizen Federal Action Tracker

A weekly monitor of how Trump’s orders and actions are impacting planners and planning in America.

April 23, 2025 - Diana Ionescu

Black and white photos of camp made up of small 'earthquake shacks' in Dolores Park in 1906 after the San Francisco earthquake.

The 120 Year Old Tiny Home Villages That Sheltered San Francisco’s Earthquake Refugees

More than a century ago, San Francisco mobilized to house thousands of residents displaced by the 1906 earthquake. Could their strategy offer a model for the present?

April 15, 2025 - Charles F. Bloszies

Millbrae BART station.

HSR Reaches Key Settlement in Northern California City

The state’s high-speed rail authority reached an agreement with Millbrae, a key city on the train’s proposed route to San Francisco.

5 hours ago - San Diego Post

Spiral ramp on exterior of parking garage in downtown Spokane, Washington.

Washington State Legislature Passes Parking Reform Bill

A bill that would limit parking requirements for new developments is headed to the governor’s desk.

7 hours ago - OPB

Missouri state capitol dome in Jefferson City, MO.

Missouri Law Would Ban Protections for Housing Voucher Users

A state law seeks to overturn source-of-income discrimination bans passed by several Missouri cities.

April 24 - Missouri Independent

Urban Design for Planners 1: Software Tools

This six-course series explores essential urban design concepts using open source software and equips planners with the tools they need to participate fully in the urban design process.

Planning for Universal Design

Learn the tools for implementing Universal Design in planning regulations.

Write for Planetizen