Can the government take your property just to hand it over to your business competitor?
That is the question New York developer Bryan Bowers is asking the United States Supreme Court after New York’s courts said it was perfectly fine for a county redevelopment agency to condemn his property and give it to a rival developer to use as a private parking lot. In most states, that kind of one-to-one transfer of property between private owners would be forbidden—or at least be subject to serious judicial scrutiny. In New York, though, it’s business as usual.
The culprit is the Supreme Court’s much-maligned 2005 decision in Kelo v. City of New London. In that case, the Court blessed the condemnation of the working-class Fort Trumbull neighborhood—not to build a road or a school, but because the government wanted to hand the land over to new private owners who would pay more in taxes. The Constitution says eminent domain is reserved for public uses, like building roads or parks, but the Court held that the public-use requirement was satisfied by the prospect of the public benefiting from claimed higher tax revenues.
The backlash to Kelo was swift and widespread. Between legislation, constitutional amendments, and court decisions, 47 states changed their laws to make Kelo-style private-purpose takings more difficult. But in the few states that didn’t, eminent domain abuse continues to occur. Bryan’s case gives the Supreme Court an opportunity to reconsider and hopefully overturn its decision in Kelo and to restore some constitutional protections against eminent-domain abuse—an opportunity that several Justices have publicly supported.
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A Private Business Asks For Eminent Domain For Private Gain—And New York Officials Are Happy To Oblige
Bryan Bowers and his business partner Mike Licata build things. And they pride themselves on building things the people in their upstate New York community actually want and need. That is what led them to buy a plot of land across from a new hospital in Utica, New York: They had heard from doctors in the area that they would happily rent space from a Bowers building if one went up.
Unfortunately, they weren’t the only ones with plans for a medical office building near the hospital—or with plans for their newly acquired land. A different group of doctors had formed a private company they called Central Utica, LLC, that had plans for a building next door. After Bryan and Mike signed a contract to buy their new land, Central Utica announced that it wanted Bryan and Mike’s land, too—to use as a private parking lot for its building.
Two different people wanting the same thing is nothing new, whether it’s toddlers with toys or private businesses with land. The difference is that this dispute happened in New York, where local and state officials sometimes behave like spoiled children.
Central Utica wrote a letter to a local government agency, the Oneida County Industrial Development Agency, asking it to take Bowers’ land using eminent domain. Shockingly, the county agreed. In the county’s telling, the new private office building would create jobs and economic growth, and that was reason enough to invoke the power of eminent domain. (Bryan, of course, proposed to build an office building that would also have created jobs, and the location was already surrounded by literally thousands of parking spots, including a brand-new multi-level garage, but the county didn’t seem troubled by that.)
That may seem like a flimsy basis for taking away someone’s private property, but in New York, it’s standard procedure. New York is the nation’s leading abuser of eminent domain, and it is a stark example of the excesses of one of the Supreme Court’s most reviled decisions: Kelo v. City of New London.
Eminent Domain For Any Reason—Or For None
In Kelo v. City of New London, the U.S. Supreme Court held that the “public use” requirement can be satisfied by what it called “secondary benefits” of a taking. There, the idea that a new private owner would create jobs and spur economic growth was enough to justify the condemnation, even though the public would neither own nor use the land that was being taken. It was, as then-Justice O’Connor warned in dissent, a strikingly dangerous rationale that meant essentially any property in the United States was now up for grabs.
And Justice O’Connor was right. The decision opened up a floodgate of eminent domain abuse, with states and localities across the country seizing upon their newfound powers to take land from private owners and hand it over to those with more political connections. And, predictably, many of those takings failed. Local politicians turn out to be adept at local politics but not particularly gifted at real-estate speculation. Indeed, the land at issue in Kelo famously sat vacant for nearly two decades until the local government, shamefaced, finally sold some of it to a private developer in November 2024, the developer being lured by massive tax breaks.
But Kelo also sparked a massive backlash: Fueled by the basic idea that Americans’ property should not be confiscated at the behest of politically connected developers, 47 different states changed their laws to make Kelo-style condemnations more difficult.
But not New York. In New York, eminent domain for private gain continued apace, and state and local government agencies have used or threatened to use eminent domain for “public” uses that range from private sports stadiums to chip manufacturers to cheese factories.
Against this backdrop, the condemnation of Bryan’s property is just more of the same. Sure, a private business went to the government and asked to be given someone else’s private property—but that’s not unusual in New York. While most states would have a problem with that, in New York, it took the court all of a paragraph to conclude that the taking was constitutional. If it weren’t enough that the new private office building would create jobs, the court identified another secondary benefit that would justify the condemnation: The public, it said, could use the new parking lot at night, when its new private owner didn’t need it.
Of course, that isn’t true. Once the new owners took over the land, they immediately put up signs making clear that the general public wasn’t allowed:
But in New York, that doesn’t matter. It doesn’t matter whether the public can actually use the land that’s being taken, and it doesn’t matter that in reality the land is a private parking lot in a sea of public parking spaces—just like it didn’t matter in Kelo whether the government would actually build anything at all. All that matters is whether the government can imagine a good reason for the taking.
A rule that says the government can take your property whenever it can imagine a benefit to doing so is just a rule that says the government can take your property whenever it wants to. It will be up to the Supreme Court to decide whether the Constitution demands more than that.
And several Justices have publicly said the Court needs to do so. In a 2021 dissent from the Court’s refusal to hear a different eminent domain case, Justice Thomas (joined by Justice Gorsuch) publicly called for the Court to find a case that would allow it to reconsider Kelo. And in late 2024, Justices Thomas, Gorsuch, and Kavanaugh all publicly voted in favor of taking another eminent-domain case out of New York.
Litigation Team
This case is being litigated by IJ Senior Attorney Andrew Ward and IJ Deputy Director of Litigation Robert McNamara, alongside local counsel Michael Fogel of Fogel & Brown, P.C.
About the Institute for Justice
The Institute for Justice is the nation’s leading defender of property rights and has led the fight against eminent domain abuse for decades. In addition to litigating the Kelo case, IJ has defended the property of beloved Atlantic City piano tuner Charlie Birnbaum and is battling against eminent domain right now in Sparta, GA, Freeport, TX, Ocean Springs, MS, and Brentwood, MO.
