Is Kelo Good For Urban Planning?

Court upheld process, but not good planning

When the Supreme Court announces a decision as important as Kelo v. City of New London, we often tend to exaggerate its significance. Urban planners can also fall prey to this natural human error.

In Kelo, a 5-4 majority upheld the City of New London’s efforts to redevelop the Fort Trumbull Neighborhood. Several homeowners and long-time businesses were resisting the city’s efforts, arguing that their land was not necessary to achieve the city’s goals, and that it was not fair to force them from their homes and transfer their land to private developers. The Court disagreed, saying that their property rights were not as important as the city’s economic development objectives.

One critical part of the decision leapt out to urban planners, and, at first glance, a ringing endorsement of their livelihood.

“Given the comprehensive character of the plan,” wrote Justice John Paul Stevens for the majority, “the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman [v. Parker], to resolve the challenges of individual owners, not on the piecemeal basis, but rather in light of the entire plan. Because the plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.”

The American Planning Association seized the moment, issuing a press release lauding the decision and likely echoing the sentiments of many in the professional planning community.

“The court upholds the use of eminent domain as a vital community tool, as advocated by APA and others concerned with the case,” the planners’ professional organization declared. “The decision validates the essential role of planning in ensuring fairness in the eminent domain process.”

This is not quite true.

The Court clearly upheld the use of eminent domain for economic development purposes, but to interpret this as support for planning would be a mistake. In fact, all the references to planning were procedural. No attempt was made to examine the substance of the process or the plan. Whether planning created good or bad outcomes was immaterial.

Indeed, the Court viewed the planning process as little more than open deliberation on economic development policy. On the ground, particularly in cities facing economic decline, local planning often becomes the procedural framework in which purely political decisions are made. They often bear little resemblance to planning as most professionals practice it or students learn about it in their planning courses.

In New London, the “planning process” was really focused on creating jobs and investment. The city attorneys were quite open about both their intent and purpose: to increase the tax base, create jobs and generate tax revenues. The objective of the city was not good planning.

A legal planning process does not by itself make for good planning. It does, particularly now, provide a framework in which a broader range of political objectives can be achieved. In Kelo, the Court made the leap that an open decision making process produced fair outcomes and protected the interests of property owners.

Justice Anthony Kennedy’s concurring opinion is more salient in this context. “This taking,” he wrote, “occurred in the context of a comprehensive development plan meant to address a serious city-wide depression. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city’s purposes.”

This logic turns the entire concept of civil liberties underlying the U.S. Constitution on its head. The Fifth Amendment, like the other provisions in the Bill of Rights, was intended to provide broad protection of civil liberties. The rights to free speech, a free press, trial by jury, and due process were not intended to be privileges granted by political majorities. The Founding Fathers believed such broad protection protect the rights of minorities against the oppression of the majority and were fundamental to an effective democracy.

To illustrate Kelo‘s potential damage, recall that its precedent, Berman v. Parker, substantially relaxed constraints on takings of private property in 1954, unleashing a wave of urban renewal that cleared large swaths of America’s cities in the late 20th century. The results, even many planners now believe, were devastating for communities. Many areas cleared for urban renewal were never redeveloped, but affordable housing and many potentially vibrant neighborhoods were bulldozed. Not surprisingly, critics now refer to urban renewal as “slum removal” and cynics refer to this period as “negro removal”. The Court’s reasoning in Kelo grants cities and public officials even broader powers to clear neighborhoods and force families from homes and businesses than those current existing from Berman.

Some have correctly noted that Kelo may not change policy. The Supreme Court merely gave a rubber stamp on efforts underway for two decades in the wake of Poletown v. City of Detroit, which devastated that ethnic community in favor of a GM plant. Poletown was reversed in August 2004 by the Michigan Supreme Court, but its effect, unlike the original case, is unlikely to be felt far beyond Michigan given the decision in Kelo.

The stakes are higher now than ever before for planners to ensure an open public process and protect the interests of homeowners, businesses and neighborhoods. Property owners can no longer rely on the federal courts when their property is seized, even when the primary beneficiary will be other private parties. The need for public vigilance in the planning process has been raised to new levels. Without judicial or statutory protections for property rights, planners may be the only ones in the redevelopment process either willing or able to protect the civil liberties of homeowners, businesses, and neighborhoods.

Samuel Staley is director of urban and land use policy at Reason Foundation and co-editor of the book “Smarter Growth: Market-Based Strategies for Land-Use Planning in the 21st Century.”