May 22, 2025
June 2025 marks two decades since the planning profession — and the country — heard the name of homeowner Susette Kelo from New London, Connecticut. She was the lead plaintiff in a case that went all the way to the U.S. Supreme Court, which ruled 5–4 in favor of New London's defense that economic development was a constitutional foundation for the use of eminent domain. The city attempted to acquire her "little pink house," along with other homes and businesses in the Fort Trumbull area, for a municipal development project adjacent to a facility owned by the pharmaceutical company Pfizer.
Today, the house remains, although it was relocated to another spot in town. The Pfizer campus closed in 2010. Most interesting, perhaps, is how the states reacted to Kelo v. New London, with more than 40 changing their laws regarding eminent domain.
The power of narrative
In considering the so-called takings clause of the Fifth Amendment, ("Nor shall private property be taken for public use, without just compensation," Justice John Paul Stevens' majority opinion extended a traditionally broad interpretation of "public use," with the public purpose of bolstering a faltering local economy found to fit squarely within allowable margins.
The American Planning Association (APA) engaged with the case, submitting an amicus curiae brief for the city. Interviewed shortly after the decision, then-Executive Director Paul Farmer, FAICP, said the majority opinion "made it very clear they were not interpreting the Constitution any differently than it had been for a hundred years" in deferring appropriately to the city's needs and planning efforts.
APA's perspective was outweighed by a firestorm of criticism. The city's plan to develop its Fort Trumbull peninsula around the pending arrival of the Pfizer Corporation's Global Development Facility fostered the trope that the New London Development Corporation (NLDC) had simply expropriated private property from recalcitrant owners to give to a corporation that would pay higher local taxes.
Courtroom sketch of Susette Kelo, her lawyer, and the justices of the 2005 Supreme Court. Sandra Day O'Connor issued a sharp dissent, admonishing the majority for taking "great comfort" in the presence of a plan to underpin the use of eminent domain. Illustration courtesy of Institute of Justice.
While not factual (private parcels were transferred to NLDC ownership, never to Pfizer), the narrative stuck, probably because the public empathized with residents forced to sell modest but well-kept homes to make way for upscale development. Calls for reform abounded; in saying yes to economic development condemnations, the court seemingly triggered a nationwide movement toward no.
The forthcoming anniversary has coincided with the most recent attempt to instigate its full demise. In December 2024, the Institute for Justice, which represented the Kelo plaintiffs, petitioned the court to review a somewhat similar Utica, New York, case (albeit concerning condemnation of an empty lot, versus homes), hoping it would neatly result in reversal two decades later. However, although property rights advocates believed the timing was optimal, the petition for appeal was declined without comment in March 2025.
While a reversal of Kelo would have sparked sensational headlines, its impact would have been muted. Two broad themes — the mix of states' regulatory responses and the court's deference to plans — help clarify what has occurred in the last 20 years and why a reversal at this point could be less than dramatic.
A grab bag of regulatory changes
New policies emerged almost immediately after Kelo, with states taking to heart Stevens' statement that they were free to strengthen their own eminent domain restrictions. While most states took some action, the changes came in various forms. Some addressed processes, such as adding a requirement that only elected bodies (rather than appointed economic development corporations) could hold expropriation authority, sometimes with the additional condition of a super-majority vote. Others focused on providing higher compensation for payments for condemnations or designating a property rights ombudsperson.
The most common responses reconsidered eminent domain's foundational justification. Typically, this involved prohibition of economic development-based condemnations, thereby limiting the tool to blight remediation.
But those modifications were often couched in elasticity. Colorado, for example, added "economic or social liability" to its blight definition. Illinois permitted consideration of factors such as "lack of community planning," while Tennessee allowed uses "detrimental to the welfare of the community." States including Connecticut, Maine, and Texas declared that eminent domain may not be used "primarily" for economic development.
Even without those statutory hedges, cities may be tempted simply to label conditions as blight if that is the only way to move toward necessary revitalization.
"Two broad themes — the mix of states' regulatory responses and the court's deference to plans — help clarify what has occurred in the last 20 years and why a reversal at this point could be less than dramatic."
All of this may have been exactly the outcome that state legislators were relying on — the popularity of the statutory "limitation," combined with the understanding that cities still could pursue economic development-linked condemnations as they always had by exploiting semantic loopholes. Yet even this tempered shift raised concerns, because it may remind planners of the recent past, when blight was suddenly everywhere as a justification for mid-20th-century urban renewal, and property owners could more easily be confronted with a blight designation on their well-maintained residential or commercial structure.
One fix could be for policy to move in the opposite direction: limiting the ability to use blight as a catch-all for eminent domain. The Institute for Justice provides a model ordinance that limits blight to safety-based code violations such as fire hazards and lack of utilities. Taking this tack further, Florida mandates that even blight cannot be used as justification for eminent domain; officials must instead pursue remedies through nuisance laws.
However, all of this is problematic, as well. The obvious equity concern with the model ordinance is in pushing condemnations solely to under-resourced communities. Regardless of whether blight's meaning is broadened or constricted, these changes confront the difficult truth that economic development may provide a compelling justification for eminent domain. Losing statutory acknowledgment of that reality may require city planners to apply the blight label inappropriately or simply avoid redevelopment entirely. Overall, given the considerable variation among these post-Kelo changes, a high court reversal would do little to untangle the complexities of policies already developed in resistance to the earlier ruling.
Plans still matter to courts
The precept that well-executed plans warrant judicial deference has only strengthened since 2005, functioning as a counterweight to these policies. This precept was integral to Stevens' ruling, with New London's "carefully formulated" plan corroborating the propriety and necessity of the condemnations. It also was unsurprising, since it reflected a history of precedential deference to plans dating back at least to Euclid v. Ambler's 1926 endorsement of zoning justified by municipal plan.
In this case, though, Stevens' conclusion drew significant controversy and reconsideration of the tradition. Justice Sandra Day O'Connor's sharp dissent, rejecting the protective role of formal plans against questionable economic development justifications, largely motivated this opposition. She chided the majority for "[taking] great comfort" in the presence of the Fort Trumbull Plan, which she argued did nothing to "blunt the force of today's holding."
Fort Trumbull Peninsula
Two maps from the author's forthcoming book, Not for Sale: Kelo v. New London and the Modern Debate over Eminent Domain, show the proposed development plan circa 2000 (right) and the properties owned by plaintiffs in the case. Source: Erin Greb Cartography.
Given the extraordinary scope of attention to this case, the details and narrative of the Fort Trumbull Master Development Plan received a vigorous public airing during and after the litigation. The evidence on whether it hewed to basic planning principles was decidedly mixed. The final version, supposedly assessing several alternatives from the perspective of the public good, advocated the very blueprint later revealed to have been sketched out in advance by Pfizer and NLDC leaders. For many, that marked the plan as merely cosmetic gloss on a pre-determined outcome, decided on outside of public view.
Equally troubling was its resemblance to mid-20th-century urban renewal efforts. A primary vehicle of the economic development goal was the complete demolition of a neighborhood, yet the planning process lacked an effective mechanism for public concerns or suggestions for alternatives to be heard, let alone deliberated by city leaders, and no consideration of the costs of residential condemnations to the entire community.
More important than any of these specific concerns about the New London process were the suspicions they triggered that these flaws might be hidden in any city's redevelopment plans.
What's next for Kelo?
This dispute remains unsettled, at least in theory. On the one hand, judicial deference potentially allows flawed plans and processes to legitimize subsequent condemnations and other questionable actions. On the other, any attempt by jurists to scale back that deference and delve into the putative shortcomings of municipal planning exercises would result in these non-experts second-guessing planning professionals.
However, Stevens' deference argument prevailed, with little sign of weakening in subsequent years. Beyond their generic legitimizing role, plans are more formally recognized as a key indicator that economic development is not merely a pretext to (unconstitutionally) convey land from one private party (unwillingly) to another, with only minimal public benefit. Moreover, despite discussion during Kelo's oral arguments on a judicial test for the likely success of economic development initiatives, no such standard has emerged consistently in state courts. Judges are likely and understandably reticent to prognosticate such outcomes.
Overall, it is difficult to assess the degree to which post-Kelo policy changes exerted a chilling effect on eminent domain as an economic development tool. In some cities, it may have encouraged planners to use alternative strategies, but in others, the combination of judicial deference to plans and the broad leeway afforded by putatively tougher new statutes may have neutralized the decision's backlash.
This all suggests that Kelo's reversal is increasingly improbable, perhaps because judges recognize the difficulties inherent in dislodging the legal primacy that plans have achieved. What APA's amicus brief stated in 2005 remains valid today in sustaining this deference: "to assure, to the extent possible, that eminent domain is exercised only in conjunction with a process of land use planning that includes broad public participation and a careful consideration of alternatives."
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