Alternatives to Eminent Domain

NPC17 attendee
APA member
List Price
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You'll learn about:

  • The constitutional and statutory context of eminent domain and its limits

  • How local eminent domain authority has changed after Kelo, particularly related to its availability to pursue community development goals 

  • How community development officials and planners have found alternative paths to achieve those goals, including the kinds of obstacles they faced and the benefits they achieved 

More than a decade has passed since the U.S. Supreme Court’s decision in Kelo vs. City of New London sparked re-assessments throughout the country of the use of eminent domain, particularly as a means of economic development and community revitalization. The results of the re-assessments varied by jurisdiction; they fell along a continuum from additional controversy (but few legal changes) to amendments to state constitutions restricting or forbidding its use for certain purposes.

The backlash has prompted many planners and elected officials to treat the eminent domain as a tool of last resort (assuming the tool remained available at all), and to instead explore alternatives that do not depend on involuntary property acquisitions or transfers. These include the creation and use of tax-increment financing districts, tax-abatement programs, and recovery-zone programs. Continuing challenges include land assembly in already developed areas and “the holdout problem”—owners who are positioned to hold out for unreasonably high prices and are more likely to do so where there is no prospect of eminent domain.

Explore eminent domain alternatives presented by the chair of the APA’s amicus committee, a leader of the public-interest law firm that has led the charge for restricting the use of eminent domain, and a recently retired professor of redevelopment law and former executive director of community redevelopment agencies in Florida (one of the states that adopted strict limits on the use of eminent domain following Kelo). All three have participated personally in the Kelo case and have watched, from different perspectives, how the public and legislative responses have affected the strategies remaining for planners.  

About the Speakers

Frank Schnidman
Frank Schnidman recently retired after holding the John M. DeGrove Eminent Scholar Chair at the School of Urban and Regional Planning at Florida Atlantic University, where he taught for many years. His redevelopment experience dates back to the early days of several “Great Society” programs. An authority on community redevelopment agencies, Frank served as executive director of the Fort Lauderdale Downtown Development Authority, the Downtown Fort Lauderdale Transportation Management Association, and the North Miami Community Redevelopment Agency. At FAU, he taught both redevelopment and economic development courses, and published “Handling the Land Use Case,” now in its third edition. He was the author of an amicus brief submitted on behalf of John Norquist of the Congress of New Urbanism in the Kelo case.

Dana Berliner
Dana Berliner serves as Senior Vice President and Litigation Director at the Institute for Justice, where she has worked as a lawyer since 1994. The focus of her litigation at IJ has been property rights. She was co-counsel for the homeowners in Kelo, and has successfully challenged exercises of eminent domain in New York, Ohio, California, and other states. She is the author of a widely-cited report on eminent domain activity before Kelo, and a book on the use and threatened use of eminent domain for private development in the immediate aftermath of Kelo.

John Baker
John M. Baker is one of the founding partners of Greene Espel PLLP in Minneapolis. He has represented cities, counties, planning officials, and other public officials for over 25 years. He also taught land use law at William Mitchell College of Law in St. Paul from 2006 to 2014. He is a co-author of the 2015 edition of "Street Graphics and the Law," an APA publication. He is also the author of several articles about constitutional litigation, particularly in the fields of land use and free expression. He is also a regular presenter in state and national seminars on constitutional and statutory issues. He currently serves as the chair of the APA's amicus committee.