Isn't Kennedy's test satisfactory in that regard? Since he was the decisive vote in that case, one could consider his view effectively prevailed.
Justice Kennedy's concurrence isn't controlling. He still joined the majority opinion. I'll give him some credit for at least envisioning some limits, but I still think his reasoning is far too deferential to the government. My argument is that economic development does not satisfy the restrictions placed upon the government by the Fifth Amendment. The "public use" requirement needs more than an economic development justification. In order for that clause to have meaning, it must have real and substantial limits. Secondary (or perceived secondary) public benefits are simply not enough to justify takings.
Take a look at a place like Flint, Michigan. Take a look at not just the (nonexistent) tax base of the city, which is supposed to fund (inadequate) public services, but also take a look at the lack of opportunities for employment and commerce. In extreme cases like this, economic development
is a public use, full stop- both because it becomes a prerequisite for the effective provision of any
other public services, and because it provides important benefits to residents in its own right that "the market" is not going to get around to without intervention.
Now, obviously, it's important to have an open, fair, and thorough process here: cities have to have real community input, where they can ideally choose from a number of proposals, and then bring them to the public
before any decision is made. And,
there rather then the courts, is where it is appropriate to fight takings that overreach. The best outcomes do not come when we circumscribe important planning activities out of fear that our governmental institutions are rotten, but rather when we work positively to ensure that our governmental institutions are robust and responsive instead.
