Kelo Redux: Second Circuit Upholds Use of Eminent Domain to Seize New York Homes for Private Development

The Second Circuit has rejected the appeal of homeowners contesting the right of New York to taken their homes under eminent domain authority to give to private developers. It is a repeat of the controversial use of eminent domain in Connecticut in the Kelo case — where the Supreme Court narrowly uphold the use of the power and rejected constitutional challenges. For those of us who believe that Kelo was wrongly decided, this case could test the matter before a newly reconstituted court.

For the full disclosure, I have testified in Congress against the Kelo decision.

In the New York case, the Second Circuit rejected challenges to the use of eminent domain to make way for a $4 billion, Frank Gehry-designed project needed to bring a new arena for the NBA’s Nets to Brooklyn.

The Court dismissed complaints that it was forcing owners to accept compensation that they did not want to accept or viewed as woefully inadequate: “For affected property owners, monetary compensation may understandably seem an imperfect substitute for the hardships of dislocation and the loss of a home or business.

The destruction of their homes will make way for more “valuable” private homes and businesses, including 16 skyscrapers, an 18,000-seat arena for New Jersey’s basketball franchise and thousands of apartments. It was a huge windfall for Nets principal owner Bruce Ratner and supported by Mayor Michael Bloomberg.

Bloomberg may regret using this authority if he decides to run for president. This follows his equally unpopular support for legislation to restrict or regulate private ownership of devices that can detect radioactive, chemical, or biological dangers in his city. Click here

There is no question that the development would bring in more money for the city and help this sports franchise. But that is not the point. When the government can start to bulldoze homes to make way for more valuable citizens under eminent domain, it puts us on a very slippery slope toward majoritarian abuse. Eminent domain should be confined to public uses, not simply favoring well-heeled or more powerful citizens. What happened in New London, Connecticut in Kelo was a national disgrace. The city torn down homes that families did not want to sell at any cost — one home was built by the father of a resident and held immeasurable personal value.

Justice Chase (not long after the Bill of Rights was written) rejected this type of claim:

“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Yet, it could be a difficult appeal for the homeowners. Sandra Day O’Connor actually voted the right way in Kelo, so Alito’s addition will not make a difference. Kennedy, to my everlasting amazement, voted to support New London. Someone would have to switch sides which is unlikely due to the fact that Kelo was handed down in 2005.

For the full story from New York, click here

6 thoughts on “Kelo Redux: Second Circuit Upholds Use of Eminent Domain to Seize New York Homes for Private Development”

  1. So how is this stadium project coming along now? Pfizer bailed out of New London after they kicked out Kelo and the others. Are the Nets and Bloomberg going to leave a similar brownscape monument to government planning and eminent domain abuse?

  2. Briefly, RC…

    Majority by: Stevens
    Joined by: Kennedy, Souter, Ginsburg, Breyer
    Concurrence by: Kennedy
    Dissent by: O’Connor
    Joined by: Rehnquist, Scalia, Thomas
    Dissent by: Thomas

    U.S. Const. amend. V
    Eminent Domain

    “… The federal courts have not restrained state and local governments from seizing privately owned land for private commercial development on behalf of private developers. This was upheld on June 23, 2005, when the Supreme Court issued its opinion in Kelo v. City of New London. This 5–4 decision remains controversial. The majority opinion, by Justice Stevens, found that it was appropriate to defer to the city’s decision that the development plan had a public purpose, saying that “the city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue.” Justice Kennedy’s concurring opinion observed that in this particular case the development plan was not “of primary benefit to . . . the developer” and that if that was the case the plan might have been impermissible. In the dissent, Justice Sandra Day O’Connor argued that this decision would allow the rich to benefit at the expense of the poor, asserting that “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” She argued that the decision eliminates “any distinction between private and public use of property—and thereby effectively [deletes] the words ‘for public use’ from the Takings Clause of the Fifth Amendment”.

  3. I remember hearing and reading conservative pundits railing at the Kelo decision as an example of poor judicial judgement by the liberal thinkers on the Court. Now, I consider myself quite liberal, but I believe the Kelo decision was very, very wrong. I don’t remember who decided which way (from Deeply Worried’s post I see Kennedy and Ginsburg) and how the majority justified it. Could someone please briefly remind us all.

  4. I agree with JT that Kelo was wrongly decided. I eagerly look forward to Ginsburg or Kennedy switching their votes.

  5. The concept of more valuable is of course, debatable. Sports arenas in urban centers have a mixed history of prosperity. When a stadium or arena is built in an area of a city that is either downtrodden or otherwise not developed, it has tended to help spur future development as a NEW community springs up around the urban center. Examples of this include both Chicago and Washington DC in the past 10-15 years.

    However, when a stadium or arena is built in an already bustling part of the city, it has not always bode well for the neighborhood. For that matter, any urban renewal project in an area that is ALREADY undergoing revitalization will more like than not adversely affect the process already underway in that neighborhood.

    For more information on the struggle, you can check out Develop Don’t Destroy Brooklyn at

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