Eminent Domain Wolves in Sheep’s Clothing: Private Benefit Masquerading as a Classic Public Use

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Virginia Environmental Law Journal


A gaping hole remains unaddressed in the midst of the debate on eminent domain. It is barely mentioned in the reform movement that was energized by Kelo v. City of New London.1 It is understandable that the reform movement focused on private to private transfers, because that was the potential form of abuse that was at issue in Kelo. However, this approach left open the possibility that those intent on reaping private benefit from eminent domain could do so by structuring transactions using public ownership. This strategic maneuver has the potential of circumventing even some of the strongest reform legislation. While this structure may not enable every Kelo-type taking, it works often enough that it must be recognized and addressed. It is an area ripe for abuse, but is more difficult to detect than the private to private transfer in Kelo. These covert private to private transfers should be of as much concern because they cause the same harm. Like the infamous result in Kelo, the major beneficiary of the taking is a private party. Often the private party initiates the activity that results in the taking. This Article reveals the extent and seriousness of this additional form of abuse and seeks to encourage its inclusion within the eminent domain reform movement so that effective means of addressing it can be developed.

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