Alternatives to Eminent Domain
You'll learn about:
The constitutional and statutory context of eminent domain and its limits
How local eminent domain authority has changed after Kelo, particularly related to its availability to pursue community development goals
How community development officials and planners have found alternative paths to achieve those goals, including the kinds of obstacles they faced and the benefits they achieved
More than a decade has passed since the U.S. Supreme Court’s decision in Kelo vs. City of New London sparked re-assessments throughout the country of the use of eminent domain, particularly as a means of economic development and community revitalization. The results of the re-assessments varied by jurisdiction; they fell along a continuum from additional controversy (but few legal changes) to amendments to state constitutions restricting or forbidding its use for certain purposes.
The backlash has prompted many planners and elected officials to treat the eminent domain as a tool of last resort (assuming the tool remained available at all), and to instead explore alternatives that do not depend on involuntary property acquisitions or transfers. These include the creation and use of tax-increment financing districts, tax-abatement programs, and recovery-zone programs. Continuing challenges include land assembly in already developed areas and “the holdout problem”—owners who are positioned to hold out for unreasonably high prices and are more likely to do so where there is no prospect of eminent domain.
Explore eminent domain alternatives presented by the chair of the APA’s amicus committee, a leader of the public-interest law firm that has led the charge for restricting the use of eminent domain, and a recently retired professor of redevelopment law and former executive director of community redevelopment agencies in Florida (one of the states that adopted strict limits on the use of eminent domain following Kelo). All three have participated personally in the Kelo case and have watched, from different perspectives, how the public and legislative responses have affected the strategies remaining for planners.
, Fort Lauderdale
Confirmed SpeakerProfessor Frank Schnidman is the former John M. DeGrove Eminent Scholar Chair in Growth Management and Development at Florida Atlantic University. He is a co-author of the well-respected legal treatise HANDLING THE LAND USE CASE (1984, 3rd edition update 2016). Schnidman was deeply involved with Kelo v. City of New London. He wrote the amicus curiae brief in the case for John Norquist, President of the Congress for New Urbanism, a brief that was cited by Justice Stevens in the Court’s majority opinion. Following the decision and the actions of the State of Florida in response to the decision, Schnidman organized numerous education and training sessions for public officials, the private sector and community members. He also appeared on television, radio and in the print media discussing the implications of the Supreme Court decision and the State of Florida reaction. In 1984 Schnidman was named a ULI Fellow “By virtue of recognized service and contribution of knowledge and experience in the fields of sound land use and urban development.”
, Institute for Justice
Confirmed SpeakerDana Berliner serves as Senior Vice President and Litigation Director at the Institute for Justice, where she has worked as a lawyer since 1994. The focus of Dana’s litigation has been property rights, particularly eminent domain. She served as co-counsel in Kelo v. New London from the trial court to the U.S. Supreme Court and was lead counsel on many other eminent domain and property rights cases. She has authored several pieces on the use of eminent domain for private development and has been recognized for the past eight years as a “Best Lawyer” in eminent domain and condemnation law. Her article, Looking Back Ten Years After Kelo, can be found at the Yale Law Journal Forum (July 7, 2015). Dana received her law and undergraduate degrees from Yale University and is a member of the DC and Pennsylvania bars.
, Greene Espel, PLLP
Confirmed SpeakerJohn M. Baker is one of the founding partners of Greene Espel PLLP in Minneapolis. He has represented cities, counties, planning officials, and other public officials for over 25 years. He also taught land use law at William Mitchell College of Law in St. Paul from 2006 to 2014. He is a co-author of the 2015 edition of "Street Graphics and the Law," an APA publication. He is also the author of several articles about constitutional litigation, particularly in the fields of land use and free expression. He is also a regular presenter in state and national seminars on constitutional and statutory issues. He currently serves as the chair of the APA's amicus committee.