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April 1, 2008
Kelo sequel to Court
SCOTUS Blog
Lyle Denniston takes a look at the petition to the US Supreme Court by homeowners and renters under threat of eminent domain in the footprint of Bruce Ratner's controversial Atlantic Yards project.
Arguing that the Supreme Court has brought confusion in the wake of its controversial 2005 ruling on the use of government power to seize private property for new economic projects, challengers of a major development in the downtown area of New York City’s Brooklyn borough are filing a new appeal to the Supreme Court.
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Their appeal, if granted by the Court, would pose a major test of the scope of the Court’s 5-4 decision in Kelo v. City of New London, the 2005 ruling that has been met with widespread protests and has spurred a campaign across the country to curb the use of “eminent domain” powers to aid private profit-making projects.The appeal contends that there is tension between the Court’s suggestion in Kelo that the motives and intent behind new projects could be probed to see if the public use justifications were mere pretexts, and the holding of earlier precedents that courts should seldom second-guess the use of “eminent domain” powers. “In the years since Kelo was decided,” the appeal asserts, “no court has managed to resolve this tension. Instead, lacking guidance from this Court, they arbitrarily choose one approach or the other.”
Broadly challenging the Second Circuit ruling, the petition claiims it made two errors: first, it immunized from inquiry the seizure of private homes and businesses for the benefit of “a single powerful real estate developer” merely because of thinly supported, after-the-fact claims of civic benefits, and, second, it applied a highly deferential review standard created for legislative authorizations of “takings” to cover all eminent domain decisions, legislative or not.
The developer and New York officials will have 30 days to respond once the new petition is formally on the docket (unless extensions of response time are granted). If the other side acts promptly, the Court conceivably could act on the case before the current Term ends.
Posted by lumi at April 1, 2008 8:54 PM