The Supreme Court has declined to take up a case that sought to have it overturn its notorious decision in Kelo v. New London.

On Monday, the nation’s highest court declined to grant a petition of certiorari to Bowers Development, LLC asking them to review a ruling from the Supreme Court of New York that found the city of Utica was within its right to take land on which they had a contract to build and give it to a different private corporation for a separate construction project.

Bowers’ development company was under contract to buy a lot near a newly built private hospital, with the intention to build a medical office building. However, Central Utica Building, LLC, the respondent in the petition, had plans to build a medical office building on an adjoining property. Central Utica asked the Oneida County Industrial Development Agency (OCIDA) to take Bower’s property and transfer it to Central Utica so they could build a parking lot adjoining their building. Citing public benefit, OCIDA used eminent domain powers to give the site to Central Utica.

The move is enabled by the Supreme Court’s Kelo ruling, which ruled that New London’s seizure of private land in the city’s Fort Trumbull neighborhood to give to Pfizer, Inc. as part of an economic development project was an acceptable “public use” under the Constitution’s Fifth Amendment.

“In the 20 years since Kelo, everyone from the person-on-the-street to legislators to highly respected judges have said it was wrong the day it was decided,” said Scott Bullock, president and general counsel at the Institute for Justice, which represented Bowers. “It is high time for the Supreme Court itself to join that chorus, remove this blot on its jurisprudence, and restore constitutional guardrails to the use of eminent domain.” IJ also represented Suzette Kelo before the Supreme Court.

In a press release, IJ noted that the planned development behind the seizure of the Kelo house and other houses in the Fort Trumbull neighborhood was never built. “Today, the neighborhood where Susette Kelo’s little pink house once stood remains mostly vacant, with a pricy community center under construction (which will pay no taxes, the original justification for the takings) and the city offering millions of dollars in tax incentives in the hopes of finally luring a private developer to the peninsula.” the press release stated.

While the Kelo case resulted in widespread reform of eminent domain rules, preventing states from seizing private lands for commercial benefit, Connecticut was one of the last states to do so. And while the law the state passed banned the use of eminent domain to take property “for the primary purpose of local tax revenue,” it did not outlaw private property from being taken for commercial development.

A number of bills have been introduced in recent years to ban the use of eminent domain for commercial purposes but none have made it out of committee. There are three proposed bills in the current session that would ban the use of eminent domain for commercial purposes, but they appear likely to die in committee. Despite being introduced on January 8, two bills that would prohibit the use of eminent domain for commercial purposes have not had a public hearing.

A third bill, which is narrower in the ways it would prevent eminent domain for commercial purposes from being used, was introduced earlier in March and had a public hearing on March 10. Unlike the other two proposals, it would apply only to municipalities. It would alter the state’s post-Kelo eminent domain reform, which prohibited the taking of property for increasing tax revenue, and further clarify eminent domain cannot be used for “any purpose that produces income” for a private entity.

Republish This Story

Republish our articles for free, online or in print, under a Creative Commons license.