Probate & Property, Vol. 20, No. 1 (January-February 2006), pp. 17-19


The Court's decision last term in Kelo v. City of New London, 125 S.Ct. 2655 (2005), has drawn heavy fire, most of it unmerited. By the narrowest of margins, the Court held that the city could take single-family homes to develop an office park and to provide parking or retail services for visitors to an existing state park and marina. Many observers thought the Court would take this opportunity to display its "conservative" activism by reining in the power of eminent domain. After all, the Court has grown increasingly protective of property rights during the past two decades. See Lucas v. South Carolina Coastal Council, 505 U.S. 103 (1992) (right to build house notwithstanding beach protection legislation); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (right to operate group home notwithstanding zoning). The Court, however, passed on the chance to redefine the "public use" requirement to protect property owners from many forms of government takings. Instead, the majority followed its long-standing rule that the government takes for a "public use" under the Fifth Amendment whenever its purpose is to provide a public benefit. And for a public benefit to exist, members of the general public need not have a right to enter the property, and title to the property need not remain in a public entity.