THE “PUBLIC USE” PUZZLE

            As far back as 1795, the U.S. Supreme Court described eminent domain as “the despotic power.”  The dangers and potential for abuse of the eminent domain power led the authors of the United States Constitution to draft the Fifth Amendment, limiting the power of eminent domain in two ways.  First, the government is required to pay the owners “just compensation” for private property condemned using eminent domain.   Second, the government can only take private property for a “public use.”  The just compensation requirement can sometimes raise issues as to what Fair Market Value is, and if other emotional values should be taken into consideration.  Generally, the debate as to the just compensation requirement is minimal when compared to the controversial public use requirement.  The public use requirement is one that presents widely differing views and interpretations.

            To many people, especially private property owners affected by eminent domain seizures, the meaning of “public use” should encompass projects that are for use by all of the public.  Examples of these types of public uses include highways, bridges, schools, prisons and courts.  To others, including real estate developers and big business owners, “public use” should extend to any project that will bring economic prosperity, new jobs, or revitalize a decaying a community.  This can include developments such as condos, casinos, private office buildings and sports facilities.  While there are differing views as to what constitutes a public use, the ultimate decision lies in the hands of the legislature and courts of the United States.  The courts have discretion as to what they consider to be a public use, as long as their reasoning is not arbitrary and capricious.

The United States Supreme Court has long ago rejected any literal requirement that condemned property must be put into use for the general public as a whole.  While many state courts in the mid-19th century endorsed “use by the public” as the proper definition of a public use, that narrow view has steadily eroded into nonexistence over time.  Not only is the “use by the public” test difficult to administer, but it has proved to be impractical given the diverse and always evolving needs of society.  For that reason, when the Court began applying the Fifth Amendment to the states at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.”

With respect to the “public purpose” requirement for condemned property, without exception, the United States Supreme Court’s cases have defined that concept broadly, reflecting the Court’s longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power.  By defining the public purpose requirement so broadly, the Court has slowly been allowing more and more land to be taken for uses that many individuals see as benefiting private individuals, rather than the public. 

While the Court does define the public use requirement broadly, it also appears to have kept some protections in place.  The Court stated that a city will be forbidden from taking and individual’s private land for the purpose of conferring a private benefit on another particular private party.  A purely private taking cannot withstand the scrutiny of the public use requirement.  Such a taking serves no legitimate purpose of government and will thus be void.  Additionally, a city will not be allowed to take property under the mere pretext of a public purpose, when its actual purpose is to benefit another private individual or entity.

While some of these opinions may seem contrary to each other, one thing is clear; the Court has very broad discretion when dealing with what it considers to be a public purpose.  The eminent domain power is ever expanding, with no sign of slowing down anytime soon.  The limits of what is considered a “public purpose” are being broadened one case at a time.  This may be good news to some, while it may bring a very real level of fear and uncertainty to others. 

            Kelo v. New London is a landmark case at the forefront of the “public purpose” debate.  In that case, the Supreme Court ruled that local governments may force property owners to sell out and make way for private economic development when officials decide the development would benefit the public, even if the property is not blighted and the new project’s success is not guaranteed.  This case has rattled citizens in communities nationwide and prompted many states to enact new legislation to protect their citizens against the increasing power of eminent domain.