Few Supreme Court decisions have inspired such a wide swath of opponents to demand legislative action like the five to four ruling in Kelo v. City of New London. Some developers, city officials and economic development agencies privately worry that a backlash is forming that will negate whatever gain Kelo delivered.

"After Kelo, just about every state introduced some statute in reaction," says Dusty Elias Kirk, a partner at Pepper Hamilton LLP and co-chair of the firm's real estate practice group in Pittsburgh. The State of Pennsylvania just passed legislation in May, which Kirk says has some teeth. Only blighted property can be seized and it can only be taken for specified public purposes.

Ironically, she adds, Kelo was perceived as far worse than it was in reality. "All Kelo said was, if the state permits this, then we won't stand in the way. Eminent domain is a balancing act that each state has to decide based on local needs."

Bley believes it will be a while before emotions cool. "These issues tend to follow a pendulum," he says. "I think a situation is developing where eminent domain will be curtailed either de jure or de facto--because officials will just be too scared to use it--in a lot of jurisdictions. But eventually the pendulum will swing when it becomes clear it has its uses as a tool."

Bley points out two instances where it served as a tool for some strange bedfellows. In Aaron v. Target, plaintiff Jeffrey S. Aaron, a resident of Florida and a trustee of the Sylvia H. Aaron Revocable Trust, a New York revocable trust that is a tenant in common with Adtar, a Delaware limited liability company, found itself on the receiving end of eminent domain used for private gain or development. The trust and Adtar each own, or, rather, owned, a 50% interest in two buildings in Saint Louis, MO in which a Target Inc. store is located, as well as the property itself.

In 1974, Target entered a long-term lease for 25 years to be renewed at five-year increments. The lease included a store building previously leased to another discount retailer. Target was to maintain the property and had the right to make changes to the building. In March 2002, Target contacted the owners with a proposal of replacing the store with a larger one. In May 2002, the owners responded that they were not opposed to demolition of the existing store, but wanted more rent, specifically a figure based on estimated sales at the new facility.

According to court filings, by Sept. 2002, alderman James Shrewsbury became concerned that Target would close its store if the property owners would not agree to its terms. Eminent domain was used to condemn the building. From there, the case went down a long legal path that is still incomplete, but even without a conclusion, its lesson is clear: eminent domain can be used against commercial property owners and investors as well as individual ones.

The other example Bley cites is the city of Hercules, CA, where some in the community are urging local officials to use eminent domain to stop Wal-Mart Stores Inc. from developing in the area. "You can't help but see the irony in this," he says.