October 23, 2012

Vol. 37, No. 2, Spring 2005


Vol. 37, No.2, Spring 2005

Publication Date : May 27, 2005



Patricia E. Salkin & Lora A. Lucero, Community Redevelopment, Public Use and Eminent Domain, 37 URB. LAW. 201 (Spring 2005).
When government converts private property for public use, property owners are often dissatisfied and resent that the government has determined their property is needed for a public purpose. Further, they may resent the level of compensation that government determines is due for this conversion. The concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings, and utilities to urban redevelopment. Perhaps central to the current debate before the U.S. Supreme Court in Kelo v. City of New London is the critical question of whether government may condemn private property for use by private developers to advance a public purpose. Section II of this article begins by briefly examining the development of the “public use” clause with respect to eminent domain. Section III discusses a recent policy guide adopted by the American Planning Association (APA) on community redevelopment. Section IV then examines three significant cases from 2004 that have crystallized around the question of what constitutes a valid public purpose under eminent domain when the government’s motivation is to promote economic development in the municipality. Finally, Section V concludes that the U.S. Supreme Court should confirm that economic development is a valid public use for the purpose of eminent domain, and that the public-private partnerships that have evolved to assist governments in meeting redevelopment needs are a necessary and appropriate strategy fostering a valid public use.

Mary Massaron Ross, Public Use: Does County of Wayne v. Hathcock Signal a Revival of the Public Use Limit to the Taking of Private Property?, 37 URB. LAW. 243 (Spring 2005).
From early times to the present, property owners have argued that the eminent domain power should be exercised only in limited circumstances. As the Constitution was being written in Philadelphia during the summer of 1787, Congress acted to limit the use of eminent domain by territorial legislatures. A just compensation provision, which included the phrase “public use,” was included in the Northwest Ordinance to prevent territorial legislatures from acting to rescind land grants. But the extent of this protection has been the subject of extensive debate. Interpretations of the phrase “public use” have been divided between those adopting a broad view and those adhering to a narrow approach. Advocates of a broad view argue that the phrase “public use” is “not meant to serve as a substantive limitation at all.” In contrast, advocates of a narrow interpretation of the phrase “public use” read it to embody limitations on the governmental taking of property. In their view, it prevents the government from using eminent domain when it merely intends to transfer property from one private entity to another. This Madisonian concern that property rights can be abrogated at the behest of powerful private interests has not lost its relevance. This debate about the proper interpretation of the public use clause in the U.S. Constitution, and many state constitutions, will not be settled definitively any time soon. This article discusses the recent decision in County of Wayne v. Hathcock, which reflects a trend toward increased review of governmental takings when the property is to be given over to private use.

George Charles Homsy, The Land-Use Planning Impacts of Moving “Partial Takings” from Political Theory to Legal Reality, 37 URB. LAW. 269 (Spring 2005).
This article presents a literature review that traces the history of the Takings Clause and sets the stage for the increased likelihood of a partial takings regime. Then, through interviews and an extensive literature search, this article answers four questions surrounding the types of regulations that have been subjected to partial takings statutes and how those statutes have affected governmental planning. Finally, the article discusses some preliminary implications of a partial takings regime. This article represents a first step in gaining an understanding of this issue and its possible impacts; moreover, by describing examples of impacts, it lays a foundation for future research that may be able to measure the impacts of compensating for a less-than-total taking.

Katharine J. Jackson, The Need for Regional Management of Growth: Boulder, Colorado, as a Case Study, 37 URB. LAW. 299 (Spring 2005).
Part I of this article discusses the negative effects of sprawl as the motivation for a community to adopt growth control measures. Part II explains the major techniques local governments use to control growth. Part III discusses the impacts of isolated growth management on the implementing community and its neighbors. Part IV provides a case study of Boulder’s Residential Growth Management System and its effects on Boulder and the surrounding communities. Finally, Part V discusses the need for regional growth control to effectively manage sprawl and the challenges in adopting a regional approach.

With Case Notes on

Lacy Street Hospitality Service, Inc. v. City of Los Angeles, 22 Cal. Rptr. 3d 805 (Cal. Ct. App. 2004).

Uniwill L.P. v. City of Los Angeles, 21 Cal. Rptr. 3d 464 (Cal. Ct. App. 2004).