R. Benjamin Lingle, Post-Kelo Eminent Domain Reform: A Double-Edged Sword for Historic Preservation

63 Fla. L. Rev. 985 (2011)|

NOTE :: The preservation of historic structures provides communities across the nation with both a source of pride in our national history and a window through which to view that history. Governments’ powers of eminent domain have long served as a tool for historic preservation; however, eminent domain also facilitates the destruction of historic structures. Thus, commentators have referred to eminent domain as a double-edged sword for historic preservation. With the 2005 Kelo v. City of New London decision, the U.S. Supreme Court altered the field of permissible condemnations, validating governments’ constitutional authority to condemn non-blighted neighborhoods for private redevelopment. States responded by reining in their governments’ condemnation powers. With the dust from the states’ legislative flurry seemingly settled, it appears that eminent domain still cuts both ways in the realm of historic preservation.


The Takings Clause of the Fifth Amendment requires the federal government to pay just compensation when it takes private property for a public use. Since 1897, the Supreme Court has incorporated this requirement against the states through the Due Process Clause of the Fourteenth Amendment. What constitutes a public use has evolved considerably over the years, with the general trend toward a steadily more inclusive definition. The evolution hit a high point with the Supreme Court’s Kelo decision. In an opinion penned by Justice John Paul Stevens, the Kelo Court held that the use of eminent domain to transfer non-blighted private property to a private industry in the name of economic redevelopment satisfied the public use requirement of the Takings Clause. Justice Stevens noted, however, that though the federal Constitution permitted such transfers, “nothing . . . precludes any State from placing further restrictions on its exercise of the takings power.”
The public responded strongly to the Court’s holding, with commentators nationwide decrying the decision as an affront to long-held notions of property rights. The states quickly took heed, and within a matter of months, legislatures across the country were crafting new laws to rein in eminent domain. As of 2009, thirty-six states have enacted such legislation. When counted alongside the states that reformed eminent domain through popular referendum, at least forty-two of the nation’s fifty states had engaged in eminent domain reform by 2009.

The enactments vary in content and in strength. Some added substantive reforms that narrowed eminent domain powers; others were merely procedural reforms that added hurdles to the process. Numerous reforms ushered in changes to the definition of public use and to the definition of blight in regards to blight eradication as a public use. All of the reforms had the basic goal of protecting private property owners from overreaching governments. This Note will focus on the blight provisions and the effects these provisions will have on the goals of historic preservation.

A general trend of the reforms is to prohibit the use of eminent domain when the end result will be to transfer a condemned property to a private entity; however, many states carve out an exemption to the prohibition if the private-to-private transfer is not the ultimate goal but rather a means to achieve the goal of blight eradication. Prior to Kelo, most states defined blight broadly. As part of their post-Kelo reform efforts, approximately twenty states either narrowed the definition of blight or removed blight as a justification for private-to-private transfers. A few states, including Florida and New Mexico, totally eliminated the use of blight as a rationale for eminent domain. In each of these twenty states, historic buildings will be safer from condemnation than they were in the years prior to the post-Kelo reforms.

Other states narrowed the definition of public use yet left their blight definitions so wide that condemning authorities could apply the label to almost any building. As there is a correlation between a building’s age and the likelihood it will be designated blight, many historic buildings in older neighborhoods remain at risk of condemnation in the name of blight removal. Some states specifically include factors such as age and obsolescence in their blight definitions. This further exacerbates the risk eminent domain poses to historic buildings. Due to the economic downturn, many local governments lack the finances to engage in costly condemnations. However, once the economy rebounds and municipal coffers are refilled, there is little to prevent abuse in the states with broad use of blight as an eminent domain justification.

Despite eminent domain’s risk to historic preservation, the practice benefits preservation as well. The Supreme Court validated historic preservation as a public use in the 1896 decision United States v. Gettysburg Railway Co. Although specifically validating preservation of historic battlefields, later courts expanded the holding to validate condemnation for historic preservation in other contexts. With judicial approval, governments have condemned both historic buildings and parcels neighboring historic buildings to make way for accessory uses such as expanded parking and museum space.
Due to the high costs involved in taking title to historic buildings, preservation through regulation is far more common than preservation through eminent domain. However, there are times when a landowner’s lack of fiscal resources or refusal to cooperate makes eminent domain the preferred option. Municipalities have used this option over the years and, on occasion, have transferred historic buildings to private entities with the means and interest to engage in rehabilitation.

Condemnation has not always been the first line of attack. In some instances, local governments first demanded landowners fix dilapidated historic structures. When the landowners refused, eminent domain ensued. Though patently constitutional in light of the Supreme Court’s Gettysburg decision, the condemnations for preservation were more palatable to the community because they were coupled with the public use of blight eradication. This likely helped get the local community on board, an essential part of a successful eminent domain proceeding.

In several jurisdictions with strong post-Kelo reforms, it is questionable whether a public use of historic preservation coupled with blight eradication would pass state statutory or constitutional muster. In other jurisdictions, such schemes clearly would not pass muster unless the structure satisfied blight definitions that are now considerably more stringent than in years past. These laws restrict too greatly governments’ ability to condemn historic structures for historic preservation. Jurisdictions with strong post-Kelo reform should modify their eminent domain statutes to more readily allow blight designations to justify eminent domain when the goal of the condemnation is to preserve a historic structure.
Conversely, in the weak reform jurisdictions, economic redevelopment condemnations are only slightly more difficult to effectuate than they were pre-Kelo. The new laws fail to provide historic structures adequate protection from the private developer’s wrecking ball. Historic preservation proponents should advocate for stronger protection of historic buildings in these instances. Blight findings should not be permitted to justify the condemnation and destruction of historic structures for economic redevelopment unless the structures pose serious health and safety hazards. Unless the post-Kelo reforms are amended to better promote and protect historic preservation, these reforms, like eminent domain itself, represent a double-edged sword for historic preservation.

This Note will explore the various post-Kelo reforms and evaluate the likely ramifications on the historic preservation community. Part II summarizes the Kelo opinion and explains how the decision followed and extended the Court’s public use jurisprudence in Gettysburg Railway Co. and Berman v. Parker. Part III discusses and compares the various state eminent domain reforms enacted in the aftermath of Kelo, with a focus on the blight exemptions and the statutory redefinitions of blight. Part IV argues that as a building’s age is a contributing factor to both its designation as blighted and to its designation as historic, statutory redefinitions of blight will impact a historic building’s likelihood of being condemned. Part V discusses how courts expanded historic preservation as a valid public use and how the strong post-Kelo reforms limit the tools available to preservation groups to obtain dilapidated historic properties for restoration activities. For example, many local governments will be forced to rely solely on historic preservation goals in eminent domain initiatives, a less palatable tactic than coupling historic preservation with blight eradication. Part VI concludes that to serve the interests embodied by the post-Kelo reforms while also effectively preserving historic buildings, states with strong reforms should carve out an exception to the blight definitions. States should more readily allow disrepair and neglect to justify condemnations for historic preservation purposes, yet retain stringent blight definitions in all other regards. Conversely, to protect historic structures from Kelo’s loosening of the public use requirement, states with weak eminent domain reform should consider legislation making it more difficult to condemn and destroy buildings of historical significance.

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