An interesting and potentially important post-Kelo public use case is now before the U.S. Court of Appeals for the Fifth Circuit (hat tip to Wright Gore, President of the Western Seafood Co., who brought this case to my attention). In Western Seafood Co. v. City of Freeport, part of a property owner's lot is being condemned and transferred to a neighbor so that the latter can build a marina for the asserted purpose of promoting "economic development" in the area. In Kelo v. City of New London, the Supreme Court of course held that "economic development" is sufficient justification to allow condemnation of private property for transfer to a new private owner.

In one sense, Western Seafood is a less egregious example of eminent domain abuse than many previous cases. The planned condemnation will not displace dozens of people (as in Kelo) and certainly not thousands (as in the notorious Poletown case, and many "urban renewal" takings). However, to a greater extent than Kelo, Western Seafood seems to be a case where there is a pure "A to B" condemnation where most if not all the benefits flow to an identifiable private party.

In Kelo, the Supreme Court majority indicated that the lack of an identifiable private beneficiary was one factor in its decision to uphold the condemnation. In reality, the Kelo taking was to a large extent instigated by the Pfizer Corporation, but as I explain in my forthcoming article on Kelo (pp. 57-58), this was not fully understood until after the case was decided by the Supreme Court. Western Seafood will help determine how important this factor really is.

My own view is that this will be a difficult case for the property owner to win. The Freeport condemnation is part of a city development plan, albeit one that may be dubious in nature. The Kelo majority repeatedly emphasized that a condemnation undertaken as part of an "integrated development plan" is virtually immune from public use challenge. Courts are not supposed to "second guess" the planners, require them to prove that the condemnations are necessary to achieve the plan's goals, or even ask the government to demonstrate that the plan has any prospects for success (see my article, pp. 48-49, 56-57). While Justice Kennedy's concurring opinion is slightly less deferential to the government than Justice Stevens' opinion for the Court, Kennedy signed on to the majority opinion, so his own handiwork has no binding precedential significance for lower courts.

Nonetheless, the Western Seafood case will help delineate the outer limits of Kelo and therefore bears close watching. The case also raises public use issues under the Texas state constitution and under Texas' new post-Kelo eminent domain reform law. Unfortunately, the Texas law is quite weak, as I documented in my article linked above, because it continues to allow condemnations for "community development," which is defined broadly enough to encompass virtually any condemnation for "economic development."

Note: the link above is to a website run by the property owners and reflects their perspective on the case. However it also includes links to the City of Freeport's briefs, thereby enabling you to get their side of the story as well.