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6 is, and the Court has erased the Public Use Clause from in New Jersey "the municipal power to pursue redevel- our Constitution."35 opment is `not unfettered'" and that the state's constitu- One commentator argues that although the Kelo tion "`reflects the will of the [p]eople regarding the ap- Court rejected a heightened degree of judicial scrutiny propriate balance between municipal redevelopment of takings for economic development, "the Kelo deci- and property owners' rights.'"42 This digest addresses sion...offers meaningful oversight of both the substance the impact of post-Kelo reforms on such a balance, espe- and procedure of eminent domain actions for essentially cially in regard to takings for transportation projects. the first time."36 The reason is that Justice Stevens' opinion emphasized the careful planning process that III. TRENDS ILLUSTRATED BY THE POST-KELO produced the revitalization plan at issue and recognized REFORMS that "one-to-one transfers" outside of a careful planning context would call for more intense judicial scrutiny of the public purpose of a taking.37 Although the subject of A. Constitutional and Legislative Enactments in much controversy, the Kelo decision imposes some sub- Response to Kelo stantive limitations on the use of eminent domain by The holding in Kelo proved to be controversial among prohibiting the government from taking private prop- the public, the media, and the political establishment.43 erty solely for the benefit of another private party and For example, a U.S. House of Representatives' resolu- by prohibiting a taking under the pretext of a public tion expressed strong disapproval of the Kelo decision.44 purpose when the actual purpose is to confer a private Forty-three states enacted post-Kelo reforms.45 Thus, benefit.38 transportation departments are unaffected in seven The Kelo Court made it clear, however, that states states that did not enact laws limiting the exercise of were free to impose restrictions on such takings; in eminent domain for the purposes of economic develop- varying degrees 43 states did so. Nevertheless, in virtu- ment.46 Although some states amended their constitu- ally all states enacting post-Kelo reforms, takings are tion in response to Kelo, most of the states responding permitted of blighted property or of property in blighted to Kelo did so by statutory amendments. Some states areas. Consequently, because of an exception in the made both constitutional and legislative changes. For states' laws for the taking of blighted property, it has example, Arizona, Colorado, Florida, Missouri, Okla- been argued that the post-Kelo reforms will have a lim- homa, Oregon, and Washington amended the state con- ited impact.39 Nevertheless, a New Jersey court has stitution to provide that the courts are to decide when a observed, although New Jersey did not enact post-Kelo taking is for a public use.47 Some states provided by reforms,40 that "[s]ince Kelo was decided, greater judi- statute that the question of public use is a judicial ques- cial and legislative scrutiny of redevelopment-based takings has occurred."41 Moreover, the court stated that requirement); City of Norwood v. Horney, 110 Ohio St. 3d 353, 35 Id. at 506, 125 S. Ct. at 2678, 162 L. Ed. 2d at 468 2006 Ohio 3799, 853 N.E.2d 1115, 1138 (2006) (reversing a (Thomas, J., dissenting). municipal finding that an area targeted for redevelopment was 36 Blais, supra note 2, at 670. blighted or deteriorated, noting the courts' "critical" role after 37 Kelo in reviewing public use designations with "vigilance")). Id. at 670 n.87 (citations omitted). 42 38 398 N.J. Super. at 412, 942 A.2d at 89 (citations omitted). Id. at 670 (citations omitted). 43 39 Daniel H. Cole, Why Kelo Is Not Good News for Local Anthony B. Seitz, The Property Rights Protection Act: An Planners and Developers, 22 GA. ST. U. L. REV. 803 (2006). Overview of Pennsylvania's Response to Kelo v. City of New 44 London, 18 WIDENER L.J. 205, 211 (2008). H.R. REP. NO. 109-340 (1st Sess. 2005). 45 40 Castle Coalition, 50 State Report Card: Tracking Emi- Castle Report, supra note 40; Ilya Somin, The Limits of nent Domain Reform Legislation since Kelo, July 16, 2009, Backlash: Assessing the Political Response to Kelo, 93 MINN. L. available at http://www.intellectualtakeout.org/research- REV. 2100, 2102 (2009), hereafter cited as "Somin, 93 MINN. L. analysis-reports/50-state-report-card-tracking-eminent- REV." See also Ilya Somin, Supreme Court Economic Review domain-reform-legislation-kelo, hereafter cited as the "Castle Symposium on Post-Kelo Reform: Introduction to Symposium Report," last accessed on July 5, 2011. on Post-Kelo Reform, 17 S. CT. ECON. REV. 1, at *1 (2009), 41 hereafter cited as "Somin's Symposium Introduction." Harrison Redevelopment Agency v. DeRose, 398 N.J. Su- 46 per. 361, 41112, 942 A.2d 59, 89 (N.J. App. 2008) (citing Castle Report, supra note 40 (citing Arkansas, Hawaii, Franco v. Nat'l Capital Revitalization Corp., 930 A.2d 160, 169 Massachusetts, Mississippi, New Jersey, New York, and Okla- (D.C. 2007) (allowing a condemnee to plead claims that the homa). 47 government's asserted public use for his property was pretex- ARIZ. CONST. art. II, 17 ("Whenever an attempt is made tual, noting Kelo's admonition that government may not "`take to take private property for a use alleged to be public, the ques- property under the mere pretext of a public purpose, when its tion whether the contemplated use be really public shall be a actual purpose was to bestow a private benefit'") (quoting Kelo, judicial question, and determined as such without regard to supra, 545 U.S. at 478, 125 S. Ct. at 2661, 162 L. Ed. 2d at any legislative assertion that the use is public."); COLO. CONST. 450); Mayor of Baltimore v. Valsamaki, 397 Md. 222, 916 A.2d art. II, 15 ("[T]he question whether the contemplated use be 324, 334 (2007) (rejecting the city's exercise of "quick take" really public shall be a judicial question, and determined as condemnation power for redevelopment purposes, citing the such without regard to any legislative assertion that the use is Supreme Court's "controversial" decision in Kelo and the need public."). See also MO. CONST. art. I, 28; WASH. CONST. art. I, for judicial scrutiny in enforcing the constitution's public use 16; and OKLA. CONST. art. 2, 24.