Volume 31

Who Bears the Cost?: The Public Use Requirement in Failed Economic Development Projects

by Carly Hoffman

The Supreme Court’s expansion of the public use doctrine authorizes takings for economic development and permits the transfer of private property from individuals to private developers. Because the judiciary defers to the legislature on determinations of public use, courts fail to intervene even when individuals are displaced to enable highly speculative or infeasible urban development projects. To prevent the needless displacement of individuals, courts should employ a four-factor feasibility assessment before permitting the use of eminent domain for economic development projects, and the legislature should grant a right of first refusal to prior owners and require community approval prior to permitting local governments to exercise eminent domain.

This Note explores the significant harm that results from failed urban development projects and suggests three key responses for the judiciary and the legislature. First, the Note provides a brief overview of the expansion of the public use requirement of the Takings Clause of the Fifth Amendment. Second, the Note presents case studies of 12 cases across ten states that demonstrate the pervasiveness and severity of the problem and provides an in-depth examination of two communities, New London and Poletown. Finally, the Note examines potential accountability mechanisms the legal system should leverage to shift the burden of failed urban development projects from individuals and communities to developers.

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