Bar Association Creates Task Force to Study Eminent Domain

The President of the New York State Bar Association has established a task force to study New York’s Eminent Domain Law in the wake of the controversy created by the U.S. Supreme Court decision in Kelo v. New London this year. The holding by the Court that municipalities may use their eminent domain powers to take private property for economic development has prompted calls by members of the New York State Legislature to curb local authority to condemn property. In addition, members of Congress have suggested that projects with federal funding should be barred from using eminent domain powers.

What seems to be missing from the discussion is the fact that the Kelo case really did not break any new ground. Municipalities have been using eminent domain to build railroads, revitalize business districts or improve housing stock for about one hundred years. Following the end of World War II urban renewal became a major force for revitalization and condemnation was a significant tool for implementing these programs. It seems the Kelo decision has merely raised the collective consciousness about the use of eminent domain.

The thought that someone can have their home taken so that a private developer can build a supermarket or an office building has outraged many. Yet, the aim of these projects is to create jobs and improve the overall quality of life in these communities. Since the U.S. Constitution only requires that just compensation be paid, the actual rules governing the details of eminent domain powers are governed by state law. Therefore it will be up to the legislatures of States, such as New York, that permit broader use of condemnation authority to examine whether “public purpose” should continue to include the economic redevelopment of communities.