On July 2, 2021, the U.S. Supreme Court delt another blow against property owners and their rights when it denied considering Fred J. Eychaner v. City of Chicago, No. 20-1214, a case which asked the Court to review the issue whether the prevention of future blight was a constitutional basis for the government to take private property, as discussed previously. It was also asking for a reconsideration of Kelo v. City of New London, 545 U.S. 469 (2005)1, whose outcome set the stage for the Eychaner ruling.

To sum up Kelo, the Court ruled it was constitutional for the government to take private property and then hand it over to private entities for the public purpose of economic development, a rather large step away from the “public use” element of the Takings Clause. It was a landmark decision, after which many states passed laws to restrict the use of this basis in order to protect private property rights, and it is still controversial because of the language used to legitimize the taking- “public purpose” as opposed to “public use.” The writers of the Constitution knew very well the difference between the two, as the term “general welfare” is used in other parts of the Constitution. If you think about it, it’s rather outrageous that the Court construes ‘purpose’ and ‘use’ as one in the same.

It is even more outrageous when you consider Eychaner. In Kelo, the property was actually located in a distressed area, whereas Eychaner’s property is anything but: located in Chicago’s River West neighborhood, surrounded by a mixture of mainly commercial and industrial properties at the time. Downtown Chicago is a stone’s throw away from the property. The property itself, though vacant, was not in a distressed area. Chicago’s Response to Eychaner’s Petition had the audacity to reframe the question itself being presented, as it asks, “Whether a taking pursuant to a development plan that would revitalize the economy, protect existing industry, reduce land use conflicts, and prevent blight in a rapidly declining area is permissible.”2 To clarify, by ‘declining,’ the City meant declining industry, as the increase was becoming mixed with retail and mixed-use with residential dwellings. Whereas Eychaner asks the more formidable question: “Is the possibility of future blight a permissible basis for a government to take property in an unblighted area and give it to a private party for private use?”3

Justice Thomas, J., joined by Justice Gorsuch, dissented from the denial of certiorari.7 Justice Thomas cited to Kelo as well as our Constitution that property taken by the government had to be taken for public use. He distinguishes the very important difference between public use and public purpose, and that the Takings Clause, as it is referred to, only authorizes the taking of land for public use, that is, that the public can directly “employ it, not if the public realizes any conceivable benefit from the taking.” (quoting the dissent in Kelo)1. Justice Thomas further supports this by referring to Kelo’s majority opinion when they acknowledged that “state courts in the mid-19th century endorsed ‘use by the public’ as the proper definition of public use.”1

How then could the Courts construe that the Takings Clause meant something beyond the plain language of “public use”? The Takings Clause says, “Nor shall private property be taken for public use, without just compensation.”4 Additionally, the dissenting justices argue that even if the Kelo finding could be taken as ‘good law,’ the majority expressly relied upon an opinion in another case5 which deemed that the prevention of “future blight” violated the public use element in the Takings Clause. That case referenced a California matter where the Court found that “”it is not sufficient to merely show that the area is not being put to its optimum use, or that the land is more valuable for other uses…” and “[p]ublic agencies and courts both should be chary of the use of the [redevelopment] act unless, … there is a situation where the blight is such that it constitutes a real hindrance to the development of the city and cannot be eliminated or improved without public assistance. It never can be used just because the public agency considers that it can make a better use or planning of an area than its present use or plan.”6 Yet that is exactly how it appears in this case: the City, in wanting greater revenue from Blommer, forced the taking of Eychaner’s land in a neighborhood that was not blighted, nor arguably is it on its way to being blighted.

To clarify, the US Supreme Court did not actually make a finding that ‘prevention of future blight’ is permissible grounds to take private property, but in denying certiorari of Eychaner, they failed to make any finding which would draw a line in the sand of what is constitutionally allowed by the Takings Clause—and what is too far. Justices Thomas and Gorsuch conclude that “if our doctrine makes it difficult to discern public use from private favors, we should grant certiorari to provide some much needed clarity.”

We couldn’t agree more.
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Sources:

1Kelo v. New London, 125 S.Ct. 2655, 162 L.Ed.2d 439, 545 U.S. 469 (2005).

2 Supreme Court of the United States. “On Petition for Writ of Certiorari to the Appellate Court of Illinois, First District: Brief for Respondent in Opposition.” Accessed 23 Jul 2021.

3Supreme Court of the United States. “On Petition for Writ of Certiorari to the Appellate Court of Illinois, First District: Petition for Writ of Certiorari.” Accessed 23 Jul 2021.

4US Constitution. Fifth Amendment. Accessed 23 Jul 2021.

599 Cents Only Stores v. Lancaster Redevelopment, 237 F.Supp.2d 1123 (C.D. Cal. 2001).

6Sweetwater Valley Civic Assn. v. City of National City, 133 Cal.Rptr. 859, 18 Cal.3d 270, 555 P.2d 1099 (Cal. 1976)

7Supreme Court of the United States. “On Petition for Writ of Certiorari to the Appellate Court of Illinois, First District: Supreme Court of the United States, Thomas, J., dissenting.” Accessed 23 Jul 2021.