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Commercial Leasing Law & StrategyFeaturesGovernmentLandlord Tenant LawLitigation

Scrutiny of Eminent Domain Power

By Stewart E. Sterk
February 01, 2023

How closely will courts scrutinize exercises of the eminent domain power? Until recently, courts have been quite deferential when entities clothed with eminent domain power have determined that private property is necessary for public use. Two recent decisions, however, suggest that there are limits to that deference.

Background

The Fifth Amendment of the United States Constitution, provides that "[p]rivate property shall not be taken for public use without just compensation." At the federal level, the United States Supreme Court has transformed the "public use" requirement into a "public purpose" requirement; so long as the condemnor can conjure up a public purpose for the taking, the condemnor does not have to demonstrate that the property will be open to the public. The Court had abandoned any requirement that the condemnor show use the public as early as 1906 in Strickley v. Bay Gold Mining Co., 200 U.S. 527, and the Court reaffirmed that position in Kelo v. City of New London, 545 U.S. 469, where it sustained a taking for economic development purposes. In Kelo, Justice Stevens also indicated that the Court would defer to the condemning authority on another issue: what land does the condemnor need to accomplish the public purpose.

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