This time it’s the Missouri Supreme Court in Centene Plaza Redevelopment Corp. v. Mint Properties, et al. (Mo. 2007) 225 S.W.3d 431, that struck down an attempt to use the eminent domain power for economic redevelopment. The court held on statutory grounds that a redeveloper authorized to condemn land for redevelopment, failed to present sufficient evidence to establish blight justifying the taking. Strictly read, the Missouri statute requires a showing of both economic and social liabilities in a blighted area. Here, the subject property was in Clayton, Missouri, evidently a prospering community. Reading the opinion we got a hunch that it took an effort to keep a straight face to argue that this was a “blighted” area in need of redevelopment.
In the end, the court found an absence of “social liability” which, as noted in Judge Stith’s concurrence, has not been defined in Missouri statutory and decisional law. The court rejected the condemnor’s bootstrapping argument that inasmuch as the redevelopment would produce an increase in jobs and would provide a “‘vibrant,’ pedestrian-friendly atmosphere that would result from the redevelopment,” a finding of blight was proper. Nothing doing, said the court, “The city’s ultimate goals for the area cannot serve as probative evidence of social liability in light of the lack of evidence concerning the state of public health, safety, and welfare in the record.”
So what we have here is another right-to-take case from a state supreme court, and another rejection of the Kelo anything-goes approach. So far, Illinois, Michigan, Ohio, Oklahoma and South Carolina have rejected the Kelo approach of taking at face value whatever the condemnor-municipality offers as evidence, even when that “evidence” can only be said to bear a rational relation to the conceivable. In the Show-Me state it will take more than that.
The US Supreme Court’s majority now stands effectively isolated from the mainstream of American judicial thought on the right to take.