Justice Anthony M. Kennedy, in a separate opinion in the property rights case (Kelo v. New London, 04-108), appears to have put city governments on notice that they can go too far in using the added power that the Court seems to have given them to seize land for economic development.

The majority opinion by Justice John Paul Stevens sought to put off to the future any correction in the breadth of the new decision. Stevens dismissed “hypothetical cases” raised by property-owners, saying those “can be confronted if and when they arise.” Those concerns, Stevens added, “do not warrant the crafting of an artificial restriction on the concept of public use.”

Kennedy was not so reticent. Although he joined the Stevens opinion in full, it is clear from his concurring opinion that he sensed that the prospect of abuse was more evident than Stevens had acknowledged. Since his vote was necessary for the city of New London to prevail, his separate opinion in some sense may be said to be controlling.

According to Kennedy, if an economic development project favors a private developer, “with only incidental or pretextual public benefits,” that would not be tolerated even by applying the minimum standard of “rational basis review.”

His opinion elaborated: “There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause.” He called it a “demanding level of scrutiny,” thus indicating that it was something like “rational basis-plus.”

He did not spell out such a heightened standard further, saying the Kelo decision “is not the occasion for conjecture as to what sort of cases might justify a more demanding standard.”

Kennedy was employing a technique raised to the level of a science by the late Justice Lewis F. Powell Jr. — join a majority opinion, but then add a concurrence that softened the edges somewhat. It is a technique that Justice Sandra Day O’Connor is also good at deploying now and then.

No doubt, land-use lawyers trying to protect existing property users will now spend considerable time and energy developing arguments to exploit the opening that Kennedy’s opinion appears to have created. At the same time, lawyers for city governments bent on calling in private developers no doubt will be giving their clients stern advice on how to proceed in order to avoid running afoul of Kennedy’s presumption of “an impermissible private purpose.”

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