Petition for Writ of Certiorari — Bowers Development, LLC, Petitioner v. Oneida County Industrial Development Agency, et al.

Supreme Court briefDec 18, 2024

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No. __________

In the Supreme Court of the United States

BOWERS DEVELOPMENT, LLC,

Petitioner,

ONEIDA COUNTY INDUSTRIAL DEVELOPMENT AGENCY

ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The Supreme Court of New York,

Appellate Division, Fourth Department

PETITION FOR A WRIT OF CERTIORARI

MICHAEL A. FOGEL

FOGEL & BROWN, P.C.

120 Madison St.,

Ste 1620

Syracuse, NY 13202

(315) 399-4543

mfogel@fogelbrown.com

SCOTT G. BULLOCK

DANA BERLINER

ROBERT J. MCNAMARA*

ANDREW WARD

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste 900

Arlington, VA 22203

(703) 682-9320

rmcnamara@ij.org

* Counsel of Record

Counsel for Petitioner

QUESTIONS PRESENTED

Kelo v. City of New London, 545 U.S. 469

(2004), held that when the government uses eminent

domain to take property from a private owner to give

it to a different private owner—where the taking

occurs as part of a comprehensive economicredevelopment plan and where the identity of the new

private owner was unknown at the time of the

taking—the taking may be justified by asserted

secondary public benefits subject only to minimal

rational-basis review. The questions presented are:

1. Does the Public Use Clause require something

more than minimal rational-basis review when the

government takes land from one private owner to

give it to a specifically identified private owner

outside the context of a comprehensive economicredevelopment plan?

2. Should Kelo be overturned?

PARTIES TO THE PROCEEDINGS BELOW

The petitioners in the proceeding below were

Bowers Development, LLC, and Rome Plumbing &

Heating Supply Co., Inc. (Rome Plumbing & Heating

Supply Co., Inc., does not join in this petition.) The

respondents below were the Oneida County

Industrial Development Agency and Central Utica

Building, LLC.

CORPORATE DISCLOSURE STATEMENT

Petitioner does not have any parent

corporation, and no publicly traded corporation owns

10% or more of its stock. (The same is true of Rome

Plumbing and of a successor in interest to Petitioner

called Utica Med Building, LLC.)

STATEMENT OF RELATED CASES

Bowers Development, LLC v. Oneida County

Industrial Development Agency, No. 764/22 OP

22-00744, Supreme Court of New York,

Appellate Division, Fourth Department

(judgment entered February 2, 2024);

Matter of Bowers Development, LLC v. Oneida

County Industrial Development Agency, No. 89,

Court of Appeals of New York (judgment

entered December 14, 2023).

iii

TABLE OF CONTENTS

PAGE

PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED .........................................1

STATEMENT ..............................................................2

REASONS FOR GRANTING THE PETITION .........5

I. Courts disagree about when (if ever) private-toprivate takings require meaningful judicial

review. ....................................................................7

A. Some courts, like the court below, apply

minimal rational-basis review regardless of the

circumstances. ................................................. 8

B. At least three state supreme courts disagree

and take Kelo’s caveats seriously. ................ 11

C. Pre-Kelo federal cases reject rubber-stamp

review. ............................................................ 14

II. Kelo should be overturned. ..................................16

III.The question presented is important. .................22

IV. This case is a good vehicle. ..................................24

CONCLUSION ..........................................................25

TABLE OF APPENDICES

PAGE

Appendix A:

Final N.Y. Appellate Division Opinion

(February 2, 2024) ............................................. 1a

Appendix B:

N.Y. Court of Appeals Order Denying Leave

to Appeal (September 19, 2024) ........................ 6a

Appendix C:

N.Y. Court of Appeals Opinion Reversing

Initial

Appellate

Division

Opinion

(December 14, 2023) ........................................... 7a

Appendix D:

Initial N.Y. Appellate Division Opinion

(December 23, 2022) ......................................... 12a

TABLE OF AUTHORITIES

PAGE(S)

CASES

99 Cents Only Stores v. Lancaster Redev. Agency,

237 F. Supp. 2d 1123 (C.D. Cal. 2001)................. 15

3649 Erie, LLC v. Onondaga Cnty. Indus. Dev.

Agency,

220 N.Y.S.3d 540

(N.Y. App. Div. Nov. 15, 2024) ............................... 9

Aaron v. Target Corp.,

269 F. Supp. 2d 1162 (E.D. Mo. 2003), rev’d on other

grounds, 357 F3d 768 (8th Cir. 2004) .................. 15

Agostini v. Felton,

521 U.S. 203 (1997) .............................................. 16

Armendariz v. Penman,

75 F.3d 1311 (9th Cir. 1996) ................................ 15

Bd. of Cnty. Comm’rs v. Lowery,

136 P.3d 639 (Okla. 2006) .................................... 16

Bowers Dev., LLC v. Oneida Cnty. Indus. Dev. Agency,

224 A.D.3d 1240 (2024) .................................. 1, 4, 9

Bowers Dev., LLC v. Oneida Cnty. Indus. Dev. Agency,

40 NY.3d 1061 (2023) ............................... 1–2, 4, 24

vii

Bowers Dev., LLC v. Oneida Cnty. Indus. Dev.

Agency,

211 A.D.3d 1495 (2022) ...................................... 1, 3

Brinkmann v. Town of Southhold,

No. 23-1301, 2024 WL 4529878

(Oct. 21, 2024) ................................................... 7, 23

Brinkmann v. Town of Southhold,

96 F.4th 209 (2d Cir. 2024) .................................. 10

Colorado v. New Mexico,

467 U.S. 310 (1984) .............................................. 22

City of Norwood v. Horney,

853 N.E.2d 1115 (Ohio 2006) ............................... 16

Cottonwood Christian Ctr. v. Cypress Redev. Agency,

218 F. Supp. 2d 1203 (C.D. Cal. 2002)................. 15

County of Hawaii v. C & J Coupe Fam. Ltd. P’ship,

198 P.3d 615 (Haw. 2008) ................................12–13

Daniels v. Area Plan Comm’n,

306 F.3d 445 (7th Cir. 2002) ................................ 14

Dickerson v. United States,

530 U.S. 428 (2000) .............................................. 21

District of Columbia v. Heller,

554 U.S. 570 (2008) .............................................. 20

Eychaner v. City of Chicago,

No. 20-1214, 141 S. Ct. 2422 (2021)........... 7, 18, 23

viii

Franco v. Nat’l Cap. Revitalization Corp.,

930 A.2d 160 (D.C. 2007)...................................... 13

Goldstein v. N.Y. State Urb. Dev. Corp.,

921 N.E.2d 164 (N.Y. 2009).................................... 8

Goldstein v. Pataki,

No. 07-1247, 554 U.S. 930 (2008)........................... 7

Goldstein v. Pataki,

516 F.3d 50 (2d Cir. 2008) .......................... 9–10, 15

Kaur v. N.Y. State Urb. Dev. Corp.,

933 N.E.2d 721 (N.Y. 2010)..................................... 9

Kelo v. City of New London,

545 U.S. 469 (2004) ...................................................

..................................i, 5–7, 10–11, 13, 15, 17–19, 23

Knick v. Twp. of Scott,

588 U.S. 180 (2019) ........................................ 16, 20

Mayor & City Council of Baltimore City v.

Valsamaki,

916 A.2d 324 (Md. 2007) ...................................... 13

Middletown Twp v. Lands of Stone,

939 A.2d 331 (Pa. 2007).................................. 11–13

N.Y. State Pistol & Rifle Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) .................................................. 21

Nat’l Rifle Ass’n v. Vullo,

602 U.S. 175 (2024). ............................................. 21

Payne v. Tennessee,

501 U.S. 808 (1991) .............................................. 21

Puntenney v. Iowa Utils. Bd.,

928 N.W.2d 829 (Iowa 2019) .......................... 16–18

Rhode Island Econ. Dev. Corp. v. The Parking Co.,

892 A.2d 87 (R.I. 2006) ...........................................12

Sheetz v. County of El Dorado,

601 U.S. 267 (2024) .............................................. 20

Syracuse Univ. v. Proj. Orange Assocs. Servs. Corp.,

71 A.D.3d 1432 (N.Y. App. Div. 2010)...................9

Tyler v. Hennepin County,

598 U.S. 631 (2023) .............................................. 20

United States v. 101.88 Acres of Land,

616 F.2d 762 (5th Cir. 1980) ................................ 14

Uptown Holdings, LLC v. City of New York,

944 N.E.2d 650 (N.Y. 2011).................................... 9

Uptown Holdings, LLC v. City of New York,

77 A.D.3d 434 (N.Y. App. Div. 2010) ................... 11

Yeshiva Univ v. YU Pride All.,

143 S. Ct. 1 (2022) ................................................. 21

STATUTES

28 U.S.C. § 1257(a)..................................................... 1

OTHER AUTHORITIES

Alberto B. Lopez, Revising Kelo and Eminent

Domain’s “Summer of Scrutiny,”

59 Ala. L. Rev. 561 (2008) ..................................... 23

Dana Berliner, Looking Back Ten Years After Kelo,

125 Yale L.J. F. 82 (2015) ................................16, 21

Dana Berliner, Opening the Floodgates

(Institute for Justice 2006), available at

https://ij.org/report/opening-the-floodgates/ ..........17

Daniel B. Kelly, Pretextual Takings: Of Private

Developers, Local Governments, and Impermissible

Favoritism,

17 Sup. Ct. Econ. Rev. 173 (2009)......................... 22

Dick M. Carpenter & John K. Ross, Testing O’Connor

and Thomas: Does the Use of Eminent Domain

Target Poor and Minority Communities?,

46 Urb. Studies 2447 (2009) ..................................24

Ilya Somin, The Judicial Reaction to Kelo,

4 Alb. Gov’t L. Rev. 1 (2011) ................................. 22

Jim Aroune, Eminent Domain Dispute Creates Dairy

Dilemma in Allegany County, Spectrum News 1

(June 1, 2021),

available at https://tinyurl.com/msuddbmy ..........22

Justin Schecker, Family Sues West Haven Over

Eminent Domain Case,

NBC Conn. (Sept. 29, 2016),

available at https://tinyurl.com/33frtvmv .............22

N.Y. Em. Dom. Proc. L. § 207 .................................... 2

Orlando E. Delogu, Kelo v. New London: Wrongly

Decided and a Missed Opportunity for Principled

Line Drawing with Respect to Eminent Domain,

58 Me. L. Rev. 17 (2006) .........................................23

Shalon Stevens, Residents Object to Onondaga

County’s Eminent Domain Effort, Spectrum News 1

(Sept. 14, 2022),

available at https://tinyurl.com/4aryjbn4 ..............22

PETITION FOR A WRIT OF CERTIORARI

Petitioner seeks a writ of certiorari to review

the judgment of the Fourth Department of the

Appellate Division of the Supreme Court of New York.

OPINIONS BELOW

The opinion of the appellate division from

which petitioner seeks certiorari, App. 1a, is reported

at 224 A.D.3d 1240. The New York Court of Appeals

denied review in an unpublished order. App. 6a. The

appellate division also issued an earlier opinion, App.

12a, which is reported at 211 A.D.3d 1495. That

opinion was reversed in a published opinion of the

New York Court of Appeals, App. 7a, which is

reported at 40 N.Y.3d 1061. New York public-use

challenges like this one are filed as petitions in the

Appellate Division, so there is no opinion from a trial

court.

JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§ 1257(a). The appellate division entered its judgment

on February 2, 2024. That court denied a timely filed

motion for leave to appeal on May 3, 2024. The New

York Court of Appeals denied a timely filed motion for

leave to appeal on September 19, 2024. This petition

was timely filed on December 18, 2024.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the Constitution

provides, in relevant part, “nor shall private property

be taken for public use, without just compensation.”

STATEMENT

Petitioner Bowers Development, LLC, was

under contract to buy land in upstate New York in the

hopes of building a medical office building. Then the

local government condemned that land for the express

purpose of giving it to a different private

corporation—one that was building a different

medical office building and had asked for the Bowers

land to use as its private parking lot. These facts are

uncontested and were accepted by the New York

Court of Appeals below. App. 10a. The question

presented is whether this is allowed under the Public

Use Clause.

More specifically: Bowers Development was

under contract to buy a lot in Utica, NY, near a newly

built private hospital, which it thought would be a

good site for a new medical-office building. 1 But that

plan never came to fruition because of Respondent

Central Utica Building, LLC, which also had plans “to

build a medical office building[,] on an adjoining

property.” App. 8a. Central Utica asked Respondent

the Oneida County Industrial Development Agency

(OCIDA) to take Petitioner’s property and give it to

Central Utica so that Central Utica could use it to

build a parking lot for Central Utica’s building. Ibid.

Central Utica claimed that without more land, it

1 Review of decisions to condemn property under New

York law are conducted on a closed administrative record after a

public hearing. N.Y. Em. Dom. Proc. L. § 207. The administrative

record is cited below as “R.” This fact appears at R. 5561.

would not have enough parking to support its

proposed private office building. 2

OCIDA agreed. OCIDA thought Central

Utica’s proposed office building would be an economic

boon to the area, and it thought that reason enough

to take Petitioner’s land and hand it over to its

business rival. At the public hearing on the proposed

condemnation, OCIDA recited asserted “public

purposes” for the taking, which focused almost

entirely on the economic benefits of Central Utica’s

proposed private office building.3

Petitioner then challenged the decision to

condemn and was initially successful: New York’s

Appellate Division at first rejected the condemnation

on statutory grounds, holding that a parking lot for a

medical office building was a health-care use outside

OCIDA’s statutory authorization to acquire property

for “commercial” purposes. App. 13a–14a.

2 R. 5282, 6062. The private hospital nearby had

previously identified the Bowers property as a lot it might wish

to acquire for its own purposes, but Central Utica first asked for

the land to be condemned as part of its private office building in

an October 26, 2021 letter to OCIDA, in which it simultaneously

applied for financial assistance to build the project and asked

OCIDA to acquire Petitioner’s land. R. 6062. Petitioner (already

under contract to buy the land to build an office building of its

own) promptly objected to its land being included in its business

competitor's private project. R. 6482–87.

3 The asserted purposes for the condemnation were: “1:

Improving healthcare for the community; 2: Creating new and

improved job opportunities; 3: Reducing unemployment; 4:

Eliminate blight in the immediate area of the Project; [5]:

Promote urban renewal and redevelopment and; 6: On an overall

basis, result in the betterment of community prosperity within

Oneida County.” R. 5557.

The New York Court of Appeals reversed. App.

8a. In its view, the condemnation was statutorily

authorized because “a parking facility used by the

customers of a profit-making business plainly has a

‘commercial’ purpose.” App. 10a. The condemnation

“did not serve any healthcare-related function.” Ibid.

Instead, “the building itself was an office building

with space leased out to paying tenants” and therefore

“[t]he proposed parking facility functioned simply to

satisfy the need for parking created by the medical

office building and provide public parking at night.”

Ibid.

Having resolved the statutory question, the

Court of Appeals remanded for the Appellate Division

to consider Petitioner’s remaining arguments—

including whether building “a parking facility used by

the customers of a profit-making business” was a

public use under the Fifth Amendment’s Public Use

Clause. App. 10a–11a.

The Appellate Division made short work of that

question. In a single paragraph, it noted that “[w]hat

qualifies as a public purpose or public use is broadly

defined as encompassing virtually any project that

may confer upon the public a benefit, utility, or

advantage.” App. 3a–4a (quotation marks omitted).

And building a parking lot for a private office building

was “rationally related to a conceivable public

purpose”: “mitigating parking and traffic congestion.”

App. 4a. It did not matter that the condemnation was

originally requested by the private beneficiary; it did

not matter that the asserted purpose of the

condemnation was job-creation and community

prosperity; it did not matter that the putative

additional benefit of the public parking “at night” was

invented after the public hearing. The government

had articulated a conceivable benefit of taking

property from A to give to B, and that was enough.

The New York Court of Appeals denied a timely

motion for leave to appeal, App. 6a, and this petition

followed.

REASONS FOR GRANTING THE PETITION

In Kelo v. City of New London, this Court held

5-4 that the Fifth Amendment’s Public Use Clause

can be satisfied when property is taken for private

development so long as the taking will generate some

secondary benefit like economic development.

545 U.S. 469 (2005). Kelo did not, however, hold that

the Public Use Clause is always satisfied by privateto-private transfers. Instead, it reaffirmed that “the

sovereign may not take the property of A for the sole

purpose of transferring it to another private party B,

even though A is paid just compensation.” Id. at 477.

It emphasized the point repeatedly: “[T]he City would

no doubt be forbidden from taking petitioners’ land for

the purpose of conferring a private benefit on a

particular private party.” Ibid. “Nor would the City be

allowed to take property under the mere pretext of a

public purpose, when its actual purpose was to bestow

a private benefit.” Id. at 478.

But, said the majority, the takings in Kelo were

saved from unconstitutionality by two features. The

first was that they “would be executed pursuant to a

‘carefully considered’ development plan.” Ibid. The

second was that the identity of any ultimate private

owner was “not known when the plan was adopted.”

Id. at 478 n.6; see also ibid. (“It is, of course, difficult

to accuse the government of having taken A’s property

to benefit the private interests of B when the identity

of B was unknown.”). Justice Kennedy’s concurrence

returned to these points, emphasizing that “[a] court

applying rational-basis review under the Public Use

Clause should strike down a taking that, by a clear

showing, is intended to favor a particular private

party, with only incidental or pretextual public

benefits[.]” Id. at 491 (Kennedy, J., concurring).

However strong Justice Kennedy’s instructions

were, the majority made clear that it was not reaching

that situation. It expressly declined to address

“hypothetical cases” involving “a one-to-one transfer

of property, executed outside the confines of an

integrated development plan.” Id. at 487.

Those hypothetical cases, however, turn out to

be very real. And lower courts disagree about how to

implement Kelo’s caveats about development plans

and identified private beneficiaries. The result, as

detailed in Part I below, is a patchwork of conflicting

rules. Some jurisdictions take Kelo’s caveats

seriously. Others, as here, freely permit “property

transfers generated with less care, that are less

comprehensive, that happen to result from less

elaborate process” based solely on “legislative

prognostications about the secondary public benefits

of [the] new use[.]” Id. at 504 (O’Connor, J.,

dissenting). In those jurisdictions, “the Public Use

Clause . . . [is] a virtual nullity[.]” Id. at 506 (Thomas,

J., dissenting). This Court should intervene to resolve

that split.

Indeed, the only reason the split is not deeper

is that many states have expressly rejected Kelo

under their own constitutions, so the issue never

arises there. State legislatures have amended their

laws, but also state high courts have held that the

rule in Kelo is both unjust and unadministrable,

wrongly reading an enumerated right out of the

Constitution. This Court should thus also grant

certiorari to consider whether Kelo should be

overturned. Four Justices have publicly voted to

consider the standard for pretextual takings, 4

overruling Kelo, 5 or both. 6 Now is the time to do it.

Courts disagree about when (if ever)

private-to-private

takings

require

meaningful judicial review.

Kelo made clear it was not endorsing

pretextual private-to-private takings. See Eychaner v.

City of Chicago, 141 S. Ct. 2422, 2423 (2021) (Thomas,

J., dissenting from denial of certiorari) (“Kelo

weakened the public-use requirement but did not

abolish it.”). Kelo emphasized aspects of the taking

there—careful public planning and the absence of an

identified private beneficiary—to explain its holding.

Yet both New York’s state courts and the Second

Circuit disregard Kelo’s caveats, holding that any

private-to-private transfer survives constitutional

scrutiny so long as the condemnor can articulate some

theoretical public benefit. On the other side, three

4 Brinkmann v. Town of Southhold, No. 23-1301, 2024

WL 4529878 (Oct. 21, 2024) (noting Justice Thomas’s, Justice

Gorsuch’s, and Justice Kavanaugh’s votes to grant certiorari);

Goldstein v. Pataki, No. 07-1247, 554 U.S. 930 (2008) (noting

Justice’s Alito’s vote to grant certiorari).

5 Eychaner v. City of Chicago, No. 20-1214, 141 S. Ct.

2422 (2021) (noting Justice Kavanaugh’s vote to grant certiorari

and the written dissent of Justice Thomas, joined by Justice

Gorsuch).

6 Ibid.

state high courts disagree and read Kelo to mean what

it says: that courts have a role to play in ensuring that

the eminent-domain power is not used merely to take

from A and give to B. Moreover, pre-Kelo federal cases

make clear that courts cannot approve private-toprivate transfers simply because the government

articulates some incidental public benefit.

A. Some courts, like the court below,

apply minimal rational-basis review

regardless of the circumstances.

New York’s approach captures the minimalreview side of the split. The state appellate court’s

analysis in this case is strikingly brief—exactly

because New York’s courts have long held that

evidence of pretext is legally irrelevant in takings

cases. Nearly two decades ago, New York’s highest

court upheld (on state-law grounds) a taking whose

original stated purpose was “economic developmentjob creation” but which the government justified by

pointing out that (years after the plan was drawn up)

it had declared the condemned property “blighted.”

Goldstein v. N.Y. State Urb. Dev. Corp., 921 N.E.2d

164, 189 (N.Y. 2009) (Smith, J., dissenting). The

assertion of blight was dispositive. Id. at 172

(majority opinion). After all, reasoned the majority,

“the concept of public use . . . has [been] sapped . . . of

much of its limiting power.” Id. at 173. It might be

unwise to allow “political appointees to public

corporations” to use “studies paid for by developers”

as “a predicate for the invasion of property rights and

the razing of homes and businesses[,]” but that was a

matter for the legislature, not the courts. Id. at 172.

Since then, New York’s highest court has consistently

rubber-stamped any taking that comes with an

asserted public benefit. Cf. Kaur v. N.Y. State Urb.

Dev. Corp., 933 N.E.2d 721, 737 (N.Y. 2010) (Smith,

J., concurring) (“The finding of ‘blight’ in this case

seems to me strained and pretextual, but it is no more

so than the comparable finding in Goldstein.”).

To be sure, Judge Smith repeatedly cautioned

that New York’s Court of Appeals had not formally

adopted Kelo as a matter of state law. See Uptown

Holdings, LLC v. City of New York, 944 N.E.2d 650,

651 (N.Y. 2011) (Smith, J., concurring) (“[O]ur

dismissal of this appeal does not imply endorsement

of the Appellate Division majority opinion, which may

be read to suggest that [Kelo] should be followed by

New York courts interpreting the New York

Constitution[.]”). But New York’s lower courts have

gotten the message that deference is the rule of the

day. Accordingly, they routinely hold the “public use”

inquiry demanded by the state or federal constitution

can be satisfied by “virtually any project that may

confer upon the public a benefit, utility, or

advantage[.]”Syracuse Univ. v. Proj. Orange Assocs.

Servs. Corp., 71 A.D.3d 1432, 1433 (N.Y. App. Div.

2010); accord 3649 Erie, LLC v. Onondaga Cnty.

Indus. Dev. Agency, 220 N.Y.S.3d 540, 544 (N.Y. App.

Div. Nov. 15, 2024) (applying same test and citing

Kelo, 545 U.S. at 480). The deferential standard

applied below is thus well-established law in New

York. See App. 4a.

And the Second Circuit has long applied the

same near-meaningless test. In Goldstein v. Pataki,

that court outlined a starkly limited test: “Once we

discern a valid public use to which the project is

rationally related, it makes no difference that the

property will be transferred to private developers, for

the power of eminent domain is merely the means to

the end.” 516 F.3d 50, 60 (2d Cir. 2008), cert. denied,

594 U.S. 930. 7 In the Second Circuit’s view, private

beneficiaries of eminent domain are not merely

permissible. They are irrelevant. Pataki stressed that

there were no circumstances in which a court could

look behind an asserted rational basis to reject a

taking meant to benefit a private party. Indeed, the

panel derided that argument as based on only “a

passing reference to ‘pretext’ in the Kelo majority

opinion in a single sentence.” 516 F.3d at 61. That is

still the rule today. Just earlier this year, the Second

Circuit reaffirmed that the only public-use inquiry

permitted under Kelo is whether “the exercise of the

eminent domain power is rationally related to a

conceivable public purpose.” Brinkmann v. Town of

Southold, 96 F.4th 209, 213 (2d Cir. 2024) (quotation

marks omitted), cert. denied, 2024 WL 4529878 (Oct.

21, 2024). 8 Just as in state courts, the government’s

assertions enjoy complete deference—so complete

that a lawsuit alleging a pretextual taking may be

dismissed under Rule 12(b)(6). Ibid.; see also

Goldstein, 516 F.3d at 53.

The upshot is that in New York, whether in

federal or state court, it is irrelevant that a taking

was initiated at the behest of a single private

beneficiary or that it takes place outside the context

of a broader, government-driven development plan. If

any tangential public benefit can be imagined, the

7 Justice Alito would have granted the petition.

8 Justices Thomas, Gorsuch, and Kavanaugh would have

granted the petition.

inquiry ends. Simply put, “there is no longer any

judicial oversight of eminent domain proceedings in

New York.” Uptown Holdings, LLC v. City of New

York, 77 A.D.3d 434, 437 (N.Y. App. Div. 2010)

(Catterson, J., concurring).

B. At least three state supreme courts

disagree and take Kelo’s caveats

seriously.

If this taking been attempted elsewhere, the

result would have been different. Courts vary in their

rationales, but three state supreme courts have held

that the public-use inquiry requires more than mere

rubber-stamp review—at least when the taking

occurs in circumstances more suspicious than those in

Kelo.

Pennsylvania: In one of the earliest statecourt decisions to grapple with Kelo’s warnings about

pretext, the Pennsylvania Supreme Court concluded

that the Public Use Clause requires courts to examine

“the ‘real or fundamental’ purpose behind a taking . . .

[because] the true purpose must primarily benefit the

public.” Middletown Twp v. Lands of Stone, 939 A.2d

331, 337 (Pa. 2007). “This means that the government

is not free to give mere lip service to its authorized

purpose or to act precipitously and offer retroactive

justification.” Id. at 338. The Pennsylvania courts

therefore stress the existence of what the Kelo

majority called a “‘carefully considered’ development

plan” to justify a taking. Ibid. (citing Kelo, 545 U.S. at

478). And the mere existence of a plan is not enough:

That plan must also be “tailored to the actual

purpose” that justifies the condemnation “or it will be

overturned as excessive.” Ibid. Rather than apply the

limited rational-basis review the New York courts

used here, Pennsylvania courts instead must ask

whether the public purpose for the taking is “real and

fundamental, not post-hoc or pretextual.” Ibid.

Rhode Island. The Rhode Island Supreme

Court, like Pennsylvania’s, casts a more skeptical eye

on takings that do not arise from Kelo-style planning

processes. In Rhode Island Economic Development

Corp. v. The Parking Co., that court rejected the

proposed condemnation of a temporary easement of a

parking garage after finding it was undertaken in bad

faith. 892 A.2d 87, 106 (R.I. 2006). The government’s

asserted purpose was to provide publicly managed

public parking, but the overall circumstances of the

condemnation suggested that it was actually meant to

obtain an advantage in an ongoing negotiation with

the garage owner. Id. at 102, 106. In reaching that

conclusion, the Rhode Island court twice pointed to

this Court’s reliance on the planning process in Kelo,

which stood “in stark contrast to [the condemnor’s]

approach in the case before us.” Id. at 104; see also id.

at 106 (“[S]uch hasty maneuvering bears little

resemblance to the comprehensive and thorough

economic development plan that was undertaken and

upheld by the United States Supreme Court in

Kelo[.]”).

Hawaii. The Supreme Court of Hawaii

similarly holds that Kelo allows “courts to look behind

an eminent domain plaintiff’s asserted public purpose

under certain circumstances.” County of Hawaii v. C

& J Coupe Fam. Ltd. P’ship, 198 P.3d 615, 638 (Haw.

2008). The condemnation in that case was supported

by sufficient “prima facie evidence of public purpose

under a rational relationship test[,]” but that did not

end the inquiry. Id. at 644. Instead, courts needed to

“expressly consider the question of whether the

taking was ‘clearly and palpably of a private

character[.]’” Id. at 647. To be sure, the Hawaii court

said it was conducting “rational basis” review, but it

made equally clear that “where the actual purpose of

a condemnation action is to bestow a benefit on a

private party, there can be no rational basis for the

taking.” Ibid. (citing Kelo, 545 U.S. at 477–78). 9

In any of these jurisdictions, this case would

come out differently. All of them hold that facts

matter and that context matters, and all of them hold

that a taking whose actual purpose is illegitimate

cannot be saved by the government’s mere

articulation of some public benefit. Below, though,

that mere articulation was the end of the analysis.

Compare Lands of Stone, 939 A.2d at 337 (rejecting

taking), with App. 4a (accepting taking). That

outcome-determinative difference warrants this

Court’s intervention.

One could probably add to this list the District of

Columbia, the high court of which has held (at least on the

pleadings) that when “property is being transferred to another

private party, and the benefits to the public are only ‘incidental’

or ‘pretextual,’ a ‘pretext’ defense may well succeed.” Franco v.

Nat’l Cap. Revitalization Corp., 930 A.2d 160, 173–74 (D.C.

2007). So too with Maryland, which holds (at least as to its quicktake statute) that economic-development takings require a

“comprehensive development plan” similar to the one in Kelo.

Mayor & City Council of Baltimore City v. Valsamaki, 916 A.2d

324, 355 (Md. 2007). However one counts, the split of authority

is real.

C. Pre-Kelo federal cases reject rubberstamp review.

This split about what Kelo meant is

underscored by pre-Kelo federal decisions that

routinely distinguished between carefully planned,

legislative determinations of public use and local

agencies making ad hoc decisions to take property.

Those decisions had no problem subjecting the latter

to meaningful scrutiny.

Consider the Seventh Circuit, which refused to

apply an “any ‘conceivable public purpose’” test to a

taking by a local Plan Commission. Daniels v. Area

Plan Comm’n, 306 F.3d 445, 466 (7th Cir. 2002).

Instead, because the taking “transfer[red] a property

interest to a private entity . . . and in this case any

speculative public benefit would be incidental at

best[,]” the taking violated the Constitution. Ibid.

And the Seventh Circuit was not alone. See,

e.g., United States v. 101.88 Acres of Land, 616 F.2d

762, 767 (5th Cir. 1980) (“The court may ask in this

[public use] inquiry whether the authorized officials

were acting in bad faith[.]”). The en banc Ninth

Circuit was particularly emphatic:

If officials could take private property,

even with adequate compensation,

simply by deciding behind closed doors

that some other use of the property

would be a “public use,” and if those

officials could later justify their

decisions in court merely by positing “a

conceivable public purpose” to which the

taking is rationally related, the “public

use” provision of the Takings Clause

would lose all power

government takings.

restrain

Armendariz v. Penman, 75 F.3d 1311, 1321 (9th Cir.

1996) (en banc) (refusing to apply deferential review

to executive-branch taking). District courts did the

same. Aaron v. Target Corp., 269 F. Supp. 2d 1162,

1174–76 (E.D. Mo. 2003), rev’d on other grounds,

357 F.3d 768 (8th Cir. 2004) (holding that a property

owner was likely to prevail on a claim that a taking

ostensibly to alleviate blight was actually intended to

serve the interests of Target); Cottonwood Christian

Ctr. v. Cypress Redev. Agency, 218 F. Supp. 2d 1203,

1229 (C.D. Cal. 2002) (“Courts must look beyond the

government’s purported public use to determine

whether that is the genuine reason or if it is merely

pretext.”); 99 Cents Only Stores v. Lancaster Redev.

Agency, 237 F. Supp. 2d 1123, 1129 (C.D. Cal. 2001)

(“No judicial deference is required . . . where the

ostensible public use is demonstrably pretextual”).

Nothing in Kelo overturned these cases. Quite

the contrary: Kelo said that “one-to-one transfer[s] of

property, executed outside the confines of an

integrated development plan” were “aberrations” that

“[c]ourts have viewed . . . with a skeptical eye.” 545

U.S. at 487 & n.17 (citing 99 Cents Only Stores).

Neither the Ninth Circuit nor the Seventh has ever

said that Kelo overturned these earlier pretextualtaking cases. But New York’s courts (both federal and

state) effectively say it did. Cf. Pataki, 516 F.3d at 61

(declining to rely on “a passing reference to ‘pretext’

in the Kelo majority opinion”). The petition for

certiorari should be granted to resolve this split of

authority.

II.

Kelo should be overturned.

The split detailed in Part I would be deeper but

for 47 states’ responding to Kelo by changing their

laws to make private-to-private transfers more

difficult. Dana Berliner, Looking Back Ten Years

After Kelo, 125 Yale L.J. F. 82, 88 (2015). Those

changes come from state legislatures and from voters

considering constitutional amendments, but most

importantly for this Court’s purposes, they also come

from state courts that expressly refuse to follow Kelo

because they find its rule unworkable and unjust. 10

Those state courts are on to something: Kelo was

wrong the day it was decided, and this Court should

grant certiorari to reconsider it.

The argument for overturning Kelo is

straightforward. The “doctrine of stare decisis . . . is

at its weakest when [this Court] interpret[s] the

Constitution because its interpretation can be altered

only by constitutional amendment or by overruling

[its] prior decisions.” Agostini v. Felton, 521 U.S. 203,

235 (1997). Each of the “several factors” this Court

uses “in deciding whether to overrule a past decision”

cuts sharply against retaining the Kelo rule. Knick v.

Twp. of Scott, 588 U.S. 180, 203 (2019). Those

factors—“the quality of [its] reasoning, the

workability of the rule it established, its consistency

with other related decisions, . . . and reliance on the

decision”—are discussed next. Ibid.

10 See Puntenney v. Iowa Utils. Bd., 928 N.W.2d 829, 848

(Iowa 2019); City of Nowood v. Horney, 853 N.E.2d 1115, 1123

(Ohio 2006); Bd. of Cnty. Comm’rs v. Lowery, 136 P.3d 639, 647

(Okla. 2006).

1. Begin with its reasoning. Both Justice

O’Connor’s and Justice Thomas’s dissents were

correct, and they have been proven more so by the

passage of time. Both the Kelo majority and Justice

Kennedy’s concurrence emphasized that nothing in

the opinion was meant to disturb the longstanding

principle that property may not be taken from A

merely to give it to B. But, of course, as Justice

O’Connor observed in dissent, in practice Kelo allows

exactly that. 545 U.S. at 498 (O’Connor, J.,

dissenting). While this Court’s earlier cases had at

most “sanction[ed] the condemnation of harmful

property use,” Kelo took the guardrails off (almost)

entirely, holding that any property could be taken and

given to anyone else “so long as the new use is

predicted to generate some secondary benefit for the

public[.]” Id. at 501. After all, “nearly any lawful use

of real property can be said to generate some

incidental benefit to the public.” Ibid. So if an asserted

incidental benefit will justify an A to B transfer, then

“[t]he specter of condemnation hangs over all

property.” Id. at 503. 11 State courts, writing on a clean

slate about their own constitutions, have

acknowledged that Justice O’Connor’s opinion has the

better of the argument. See Puntenney v. Iowa Utils.

Bd., 928 N.W.2d 829, 848 (Iowa 2019) (“Like our

colleagues in Illinois, Michigan, Ohio, and Oklahoma,

11 Justice O’Connor’s opinion was right as a matter of law

and as a matter of practical reality. This Court’s decision in Kelo

unleashed a flood of private-to-private condemnations that was

stemmed only by many jurisdictions’ decisions to reject the

ruling as a matter of statutory or constitutional law. See Dana

Berliner, Opening the Floodgates (Institute for Justice 2006),

available at https://ij.org/report/opening-the-floodgates/.

we find that Justice O’Connor’s dissent provides a

more sound interpretation of the public-use

requirement.”). This Court should do the same.

If Kelo was an unjustified departure from this

Court’s cases, it was also an unjustified departure

from the original meaning of the Constitution, as

Justice Thomas explained in dissent. “The most

natural reading of the [Public Use] Clause is that it

allows the government to take property only if the

government owns, or the public has the legal right to

use, the property, as opposed to taking it for any

public purpose or necessity whatsoever.” 545 U.S. at

508. Justice Thomas’s careful, heavily cited

discussion of the original text and meaning went

unanswered by the majority. See also Eychaner,

141 S. Ct. at 2423 (Thomas, J., dissenting from denial

of certiorari).

2. The Kelo rule has also proven unworkable

because, as illustrated by the perfunctory analysis

conducted by the lower court in this case, it is no rule

at all. Instead, it replaces the enumerated public-use

requirement with a standard that allows the

government to decide for itself what public use means.

It is, as both the dissents and state courts have noted,

boundless. Compare Kelo, 545 U.S. at 501 (O’Connor,

J., dissenting) (noting that a rule allowing takings

based on asserted “positive side effects” would not

“realistically exclude any takings”), with Puntenney,

928 N.W.2d at 847–48 (adopting Justice O’Connor’s

critiques of Kelo).

The facts here show as much. The Kelo

majority seized on several aspects of that case to claim

that it was not blessing a mere transfer of land from

A to B. Each is absent here. Kelo made much of the

fact that the takings in that case were planned long

before any private beneficiary had been identified.

545 U.S. at 478 n.6. Here, the taking was at the

specific request of the new private owner. App. 8a.

There, the Court emphasized that the takings were

the product of a long, careful government planning

process. Kelo, 545 U.S. at 483. Here, the only plan is

the plan of private interests that want the land for

themselves. App. 8a. In Kelo, great emphasis was

placed on a legislative determination that New

London was a “depressed” municipality. Kelo, 545

U.S. at 491 (Kennedy, J., concurring); id. at 504

(O’Connor, J., dissenting). Here, by contrast, a state

agency has been vested with a roving mandate to

condemn property for any “commercial” venture that

catches its eye. App. 9a. In short, if Kelo meant to

articulate a rule that prevented “one-to-one

transfer[s] of property, executed outside the confines

of an integrated development plan,” the decision

below demonstrates that it has failed. Kelo, 545 U.S.

at 487. And if it was meant to authorize the sort of

straightforward A-to-B taking at issue here, then it

was simply wrong.

3. Kelo is also inconsistent with this Court’s

cases in two distinct ways.

First is its failure to grapple with (or even

acknowledge) the original public meaning of the

Public Use Clause. As noted above, Justice Thomas’s

dissent explained the original public meaning at

length. The majority opinion ignored it. See supra 18.

That failure is entirely out of step with this Court’s

modern approach to the Fifth Amendment, which, at

every step, is informed by text and history. When

asked whether legislatures are subject to ordinary

rules about exactions, this Court answered the

question by looking to “constitutional text, history,

[and] precedent.” Sheetz v. County of El Dorado,

601 U.S. 267, 276 (2024). When asked whether the

government effects a taking when it uses a tax debt to

confiscate more than it was due, this Court again

reached its conclusion based on what “[h]istory and

precedent say[.]” Tyler v. Hennepin County, 598 U.S.

631, 639 (2023). When asked whether a Takings

plaintiff needed to exhaust her state-law remedies

before filing a federal civil-rights suits, the Court once

again found “valuable context” from “[t]he history of

takings litigation.” Knick v. Twp. of Scott, 588 U.S.

180, 199 (2019). In short, when a litigant asks a

Takings Clause question, this Court resolves it with

reference to history—unless the question is about the

Public Use Clause. If Kelo were decided today, Justice

Thomas’s dissent would have carried the day or, at

minimum, required some explanation from the

majority of why it disagreed with the dissent’s

historical analysis. Kelo’s failure to do so means it

clashes with all this Court’s recent Takings cases.

Second, Kelo is inconsistent with this Court’s

other modern cases because it affords complete

deference to legislative decisions about an

enumerated right. No other right has been so fully

jettisoned—and, in fact, this Court has squarely

rejected the idea that enumerated rights can even be

jettisoned. See District of Columbia v. Heller, 554 U.S.

570, 628 n.27 (2008) (noting that legislative deference

is inappropriate in cases involving “a specific,

enumerated right”). The difference is stark: If a New

York state agency wants to interfere with a New

Yorker’s right to engage in political advocacy 12 or to

own a gun13 or to worship as he sees fit, 14 the judiciary

will have something to say about it. If that agency

wants to take his property away because his business

rival asked for it, the courts stand silent. There is no

justification for this disparity, and the Court should

correct it.

5. Finally, there are few if any reliance

interests in maintaining the Kelo rule. This is largely

because it has been so widely rejected—in the wake of

Kelo, 47 states changed their laws to make Kelo-style

takings more difficult. Berliner, Looking Back, supra,

at 88. Overturning Kelo cannot upend reliance

interests if Kelo is no longer the law in many places.

And in the two decades since Kelo was decided, this

Court has never once cited it for any proposition. The

case has no progeny; revisiting it cannot disturb any

other settled rules of law. Cf. Dickerson v. United

States, 530 U.S. 428, 443 (2000) (noting importance of

consistent reaffirmance to stare decisis analysis).

Moreover, this Court has long held that

reliance interests justifying stare decisis are at their

peak in cases involving “property and contract

rights.” Payne v. Tennessee, 501 U.S. 808, 828 (1991).

Those interests cut directly against stare decisis here.

Property owners like Petitioner have reliance

interests in keeping the property they have invested

in. No one has a reliance interest in their future

12 See Nat’l Rifle Ass’n v. Vullo, 602 U.S. 175 (2024).

See N.Y. State Pistol & Rifle Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022).

14 Yeshiva Univ. v. YU Pride All., 143 S. Ct. 1 (2022).

ability to have someone else’s property condemned for

their own private use. Cf. Colorado v. New Mexico,

467 U.S. 310, 316 (1984) (noting “society’s [ ] interest[]

in increasing the stability of property rights”). No

reliance interests hinder reconsidering Kelo, and the

petition should be granted to allow the Court to decide

whether that precedent should still stand.

III.

The question presented is important.

The question presented is also important. In

the 20 years since Kelo was decided, private-toprivate condemnations have continued to create

controversy and injustice—originally nationwide and

now, regularly, in the states that have not limited

Kelo under state law.15 The inability of courts to apply

Kelo’s purported limitations has caused confusion for

litigants and courts alike. 16 And the decision has

continued to received sharp criticism from both legal

15 See, e.g., Shalon Stevens, Residents Object to

Onondaga County’s Eminent Domain Effort, Spectrum News 1

(Sept. 14, 2022), available at https://tinyurl.com/4aryjbn4; Jim

Aroune, Eminent Domain Dispute Creates Dairy Dilemma in

Allegany County, Spectrum News 1 (June 1, 2021), available at

https://tinyurl.com/msuddbmy; Justin Schecker, Family Sues

West Haven Over Eminent Domain Case, NBC Conn. (Sept. 29,

2016) , available at https://tinyurl.com/33frtvmv.

16 See, e.g., Ilya Somin, The Judicial Reaction to Kelo, 4

Alb. Gov’t L. Rev. 1, 3 (2011) (“[F]ederal and state courts have

been all over the map in their efforts to apply Kelo's restrictions

on ‘pretextual’ takings.”); Daniel B. Kelly, Pretextual Takings: Of

Private Developers, Local Governments, and Impermissible

Favoritism, 17 Sup. Ct. Econ. Rev. 173, 176 (2009) (“[T]he [Kelo]

Court’s lack of clarity[] has created significant uncertainty for

both litigants and lower courts.”).

scholars 17 and Members of this Court. See, e.g.,

Eychaner v. City of Chicago, 141 S. Ct. 2422 (Thomas,

J., dissenting). This Court may not see public-use

questions very often, 18 but that is to be expected:

Litigating about public use can be expensive and risky

for property owners, who face great pressure to settle.

The Court should not mistake the relative rarity of

petitions raising these questions for an absence of

eminent-domain abuse. In the lower courts (and at

dinner tables where homeowners have to decide

whether to litigate or to let private businesses force

them off their land), Kelo continues to run rampant.

That matters. It matters legally, but it also

matters morally. Failing to curb the lower courts’

expansive vision of Kelo “leaves in place a legal regime

that benefits ‘those citizens with disproportionate

influence and power in the political process, including

large corporations and development firms.’”

Eychaner, 141 S. Ct. at 2423 (Thomas, J., dissenting)

(quoting Kelo, 545 U.S. at 505 (O’Connor, J.,

dissenting)). To be sure, this case is a dispute between

property developers, each of whom wanted to build

something on the same piece of land—one of whom

had the land and one of whom had more political

sway.

But

many

private-to-private

takings

nationwide continue to involve taking the property of

17 See, e.g., Alberto B. Lopez, Revising Kelo and Eminent

Domain’s “Summer of Scrutiny,” 59 Ala. L. Rev. 561, 562 (2008);

Orlando E. Delogu, Kelo v. City of New London—Wrongly

Decided and a Missed Opportunity for Principled Line Drawing

with Respect to Eminent Domain Takings, 58 Me. L. Rev. 17

(2006).

18 But see Brinkmann, No. 23-1301; Eychaner, No 201214.

poorer landowners to give it directly to wealthier

landowners. See Dick M. Carpenter & John K. Ross,

Testing O’Connor and Thomas: Does the Use of

Eminent Domain Target Poor and Minority

Communities?, 46 Urb. Studies 2447 (2009) (finding

that redevelopment through eminent domain

overwhelmingly targets areas disproportionately

populated by poor people and racial minorities). Until

this Court reconsiders (or at least limits) Kelo, those

takings will continue.

IV.

This case is a good vehicle.

This case is a good vehicle to revisit the scope

or viability of Kelo for two reasons. First, the facts are

simple, settled, and exactly what Kelo said it was

leaving for another day. The condemned land will be

owned and controlled by the private commercial

entity that asked for it to be condemned in a one-off

taking. That makes it exactly the sort of A to B

transfer, conducted outside the context of a public

development plan and justified only by the assertion

of incidental benefits, that the Kelo majority said it

was not endorsing (and that Justice O’Connor’s

dissent warned it was). Second, both the condemnor

and the New York Court of Appeals agree this

property is being taken for a private “‘commercial’

purpose.” App. 10a. To be sure, the public might be (or

might not be) allowed to use the new parking lot “at

night” when it is not needed by its new private owner.

Ibid. But this is an asserted incidental benefit of the

sort Justice O’Connor warned about; there is no

suggestion that the public would have any legal right

to use the parking lot. So the facts involve nothing like

highways, common carriers, or the other genuine

public uses that the Clause was originally understood

to describe. This is a clean vehicle to consider the

boundaries and continued viability of Kelo’s holding.

It is also a chance that may not come again. As

discussed above, the use (or threatened use) of

eminent domain for private development is common,

but appellate litigation over those condemnations is

rare. See supra 23. Many eminent-domain cases end

in settlement, as property owners facing the

uncertain scope of the Kelo rule decide not to undergo

a long-term fight. When past opportunities to revisit

Kelo have arisen, at least one (if not more than one)

Justice has voted to do so. Supra nn. 4–5. This case

presents a straightforward vehicle to answer the

questions presented, and the time to do so is now.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.