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Planning as public use?
Garnett, Nicole Stella
Garnett, Nicole Stella
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"There was nothing surprising about the holding in Kelo v. City of New London.1 After all, in Berman v. Parker2 and again in Hawaii Housing Authority v. Midkiff,3 the Supreme Court made clear that federal judicial review of a decision to exercise the power of eminent domain should be extremely deferential. Nevertheless, Kelo has turned out to be full of surprises. First, there was the Court’s bitter division. Justice O’Connor, who authored the unanimous Midkiff opinion, wrote a scathing dissent for herself and three colleagues. And, of course, there was the unexpected post-decisional hullabaloo, which resulted in a flurry of efforts to impose legislatively the very restrictions on eminent domain that the Supreme Court declined to impose constitutionally.4 This Article, however, avoids this well-trodden ground and focuses instead on Kelo’s third surprise—the Court’s implicit suggestion (made explicit by Justice Kennedy in concurrence) that public, participatory planning is a constitutional safe harbor and may separate impermissible “private” takings from presumptively valid public ones. The Kelo majority mentioned the words “plan” and “planning” forty times; Justice Kennedy’s separate opinion brought the tally to nearly fifty. The Court’s frequent reference to the City of New London’s careful and extensive planning effort was surprising because it was unnecessary. Kelo reaffirmed that public use challenges are subject to rational basis review, a standard that simply requires the Court to satisfy itself that a taking advances some conceivable public purpose. Kelo’s third surprise—the majority’s emphasis on the extensive, participatory planning—has largely been overshadowed by the postdecisional uproar in the popular press and the legislative chambers. While only time will tell how Kelo’s planning mandate will influence future litigation and future projects, this Article represents a brief initial effort to sort through the implications—practical and legal—of the Court’s decision to encourage pre-takings planning efforts." (p. 1, 28)
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2007
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With permission of the license/copyright holder