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"Fairness and Justice" Ought to Guide the Courts When Reviewing Legislative Determinations of "Public Use"

February 2005

Citation: 35 ELR 10108

Issue: 2

Author: Joel R. Burcat and Elizabeth U. Witmer

On September 28, 2004, the U.S. Supreme Court granted certiorari to review a case that has vast importance for land developers, private property owners, governments, redevelopment agencies, and others who are impacted by governmental redevelopment efforts: Kelo v. City of New London.

No one doubts that the government has the power to take private property for public use so long as the government pays a property owner "just compensation" for that property. The Fifth Amendment to the U.S. Constitution explicitly provides "nor shall private property be taken for public use, without just compensation." This means that the government may condemn private property for a public use, such as a highway or public park, so long as the landowner is paid just compensation.

Since the Court's 1954 decision in Berman v. Parker, however, government and quasi-governmental agencies, such as private development corporations, have been permitted to take private property and pay just compensation, but then have redistributed that property to other private parties who redeveloped the property. The ability of governmental agencies to continue this practice has been called into question by the Court's decision to review the Connecticut Supreme Court's decision in Kelo. A decision in Kelo that does anything other than affirm the Connecticut Supreme Court will modify the way government has done business in the redevelopment area and have an impact on property owners, land developers, land redevelopers, and governmental units.

The time has come for the Court to reevaluate the extreme deference allowed by it in Berman of the legislature's "public use" determinations. This Article urges that the Court utilize the "fairness and justice" standard that it has held applies to cases under the Takings Clause and permit a reasonable judicial review of a legislature's determination of a "public use" when land has been condemned for redevelopment purposes.

Mr. Burcat is a Partner with Saul Ewing L.L.P. in its Harrisburg, Pennsylvania, office and is Chair of the firm's Environmental Department. Ms. Witmer is a Partner with Saul Ewing L.L.P. in its Chesterbrook, Pennsylvania, office. This Article is for informational purposes only. Nothing herein is intended or should be construed as legal advice or a legal opinion applicable to any particular set of facts or to any individual's or entity's general or specific circumstances. The opinions expressed in this Article are the authors' and should not be attributed to any of the authors' or the firm's clients. For more information, visit www.RegulatoryTaking.com.

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