By Noreen E. Johnson. Full text here.
The public response to the now notorious 2005 Supreme Court decision Kelo v. City of New London changed the landscape of redevelopment law in the United States. In Kelo, the Court held that eminent domain could be used to transfer property from one private party to another private party for purposes of economic development under the Takings Clause of the Constitution. While the ruling itself confirmed a long line of precedent applying a deferential standard of review to the use of eminent domain, the unprecedented public backlash against the decision sparked a flurry of activity on the state level to provide additional protections to property owners. Condemned by figures on the left and the right of the political spectrum and opposed by approximately eighty percent of the American population, the Kelo decision has provoked forty-two states to pass stricter laws curtailing the government’s power to take private property for the purposes of economic development.
Despite the recent attention this issue has received and the reform legislation that has been enacted, there remain significant problems with the effective implementation of these new protections for property owners. This Note addresses the difficulties property owners face in taking advantage of their rights under current eminent domain statutes given the complicated nature of the statutes and the often prohibitive cost of hiring legal representation. As a solution, the Note proposes a simple fee shifting statute that would allow property owners to have their attorney’s fees paid for by redevelopment agencies under certain circumstances. This approach would significantly improve implementation of statutory protections by giving property owners full access to the courts.