The Evolution of IJ’s Fight Against Eminent Domain Abuse

Dana Berliner
Dana Berliner  ·  February 1, 2024

For almost 10 years, IJ received phone calls and letters every week asking for help with local and state governments trying to take people’s homes or small businesses for other private parties. And we successfully defeated several of these attempts in state and federal courts, as well as through activism. 

Then came the notorious 5-4 U.S. Supreme Court decision in Kelo v. New London in 2005, where the Court held that “economic development”—the hope of more taxes or jobs—was a constitutionally sufficient reason for government to take property. IJ refused to take this loss as the final word on the matter, so we took eminent domain to state courts, state legislatures, and state ballot boxes. Using all three of these, we were able to get the law changed for the better in 47 states and vastly changed how eminent domain is used.

We still want to get Kelo reversed (and we will!), but it is now much harder to find cases where local government takes property for admittedly private development. The situations now usually have a veneer of public-sounding uses, and the constitutional violations are less obvious. Yet there is often the specter of private benefit lurking in the background. 

Take for example a case involving a railroad in Sparta, Georgia. Eminent domain was used extensively for railroads during the heyday of rail transportation. People often think of railroads as a public utility, transporting people and goods all over the country. Most railroads are tightly regulated and part of semi-public entities like Amtrak. So eminent domain for a railroad sounds like a public use. But railroads can be private uses, too. IJ just finished a four-day trial before the Georgia Public Service Commission challenging the taking of land by a single private railroad to build a track to serve a private quarry.

Sparta is part of a new phase of IJ’s eminent domain work. In Freeport, Texas, a private port took the homes of dozens of families. IJ is arguing that those takings were unlawful because the port authority had no plan for the properties other than giving the land to private parties for economic development. 

Another theme of our recent eminent domain work is challenging “slum” or “blight” designations. By giving areas these labels as part of an urban renewal process, municipalities may be able to circumvent the strong post-Kelo changes at the state level that prevent taking property for private development. In Ocean Springs, Mississippi, the city designated more than 100 homes and businesses, as well as a church parking lot, as “slum and blighted” areas without notifying any of the owners or giving them a chance to challenge the label. Brentwood, Missouri, has also designated dozens of properties—including several small, family-owned businesses—as blighted, allowing the city to take them for private development. IJ is challenging the blight designation, which does not even meet state requirements.

These takings are in older but healthy and stable neighborhoods. There’s a reason for that. Private developers don’t want to take over an area that’s in terrible shape. They want an area that’s up-and-coming, that’s ready for a huge increase in development and value. As IJ’s strategic research has found, those areas tend to have higher percentages of minority residents—a pattern that is borne out in many of these recent cases. 

But even as our work here has evolved, some things remain constant: The property owners we’re defending could never afford to fight back on their own, and we will remain forever vigilant in our fight against eminent domain abuse in all its guises.

Dana Berliner is IJ’s senior vice president and litigation director.

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