Highest court to clarify government's role in urban redevelopment, says land use law expert

Nov. 11, 2004 -- Daniel Mandelker, one of the country's leading scholars and teachers in land use law, is closely following the Kelo v. City of New London case before the Supreme Court. Mandelker, the Howard A. Stamper Professor of Law at Washington University in St. Louis, is the co-author of "Planning and Control of Land Development," and author of "Land Use Law." He is a frequent commentator on land use issues.

At issue in the Kelo v. City of New London case is a redevelopment project in the downtown and waterfront areas of this economically distressed Connecticut city. Private property must be taken by condemnation in eminent domain and turned over to the developer to carry out the project. The Supreme Court case questions whether this property transfer in conjunction with the project is a public use as required in the federal and state constitutions.

"In Kelo v. City of New London, the Supreme Court has taken a major case that will test the ability of municipalities to carry out redevelopment projects to improve their downtowns and city neighborhoods," Mandelker says.

"The Connecticut Supreme Court upheld the project. It held that municipal economic development can be, in and of itself, a constitutionally valid public use under the well established broad, purposive approach the court has taken on this issue under both the federal and state constitutions. The court also held that private benefit from economic development is secondary to the public benefit that results from significant economic growth and revitalized financial stability in a community."

Mandelker believes the Connecticut court properly upheld the use of eminent domain in this case, but that abuses can occur in other cases where there is no clear redevelopment objective.

The Supreme Court last visited this issue 20 years ago, when it upheld a statute in Hawaii that allowed lessees to obtain title to land on which their residences were built. It relied on a Supreme Court case decided 50 years ago, in which the Court upheld the use of eminent domain to carry out an urban redevelopment project in a dead-end residential slum in Washington, D.C.

"Both cases give considerable freedom to municipalities to carry out redevelopment projects where private land is transferred from one landowner to another," Mandelker says. "But the hardcore slum areas are now all gone, and the Kelo case will test whether condemnation through eminent domain can be used where economic redevelopment will be beneficial but the project area is not in a blighted condition."