Reply Brief — Bowers Development, LLC, Petitioner v. Oneida County Industrial Development Agency, et al.

Supreme Court briefFeb 3, 2025

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No. 24-670

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

REPLY BRIEF FOR THE PETITIONER

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

TABLE OF CONTENTS

PAGE

REPLY BRIEF FOR THE PETITIONER ................. 1

A. This case is a good vehicle. ................................... 1

1. Petitioner has standing. .................................. 2

2. This case is not moot. ...................................... 2

3. The Fifth Amendment question was preserved

...................................................................... 4

4. This case is not barred by res judicata. .......... 6

B. The BIO’s attempts to square this taking with Kelo

fail.......................................................................... 7

C. This case would have come out differently in other

jurisdictions......................................................... 10

D. Kelo was wrongly decided and should be revisited.

..............................................................................11

CONCLUSION ......................................................... 12

TABLE OF AUTHORITIES

PAGE(S)

CASES

Brody v. Vill. of Port Chester,

345 F.3d 103 (2d Cir. 2003) .................................... 3

Catlin v. United States,

324 U.S. 229 (1945) ................................................ 3

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

198 P.3d 615 (Haw. 2008) .............................. 10, 11

Faith Temple Church v. Town of Brighton,

17 A.D.3d 1072 (N.Y. App. Div. 2005) ................... 2

Kelo v. City of New London,

545 U.S. 469 (2005) ...............................1, 7, 8, 9, 11

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ................................................ 5

Middletown Twp. v. Lands of Stone,

939 A.2d 330 (Pa. 2007).................................. 10, 11

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

71 A.D.3d 1432 (N.Y. App. Div. 2010) ................. 10

Uptown Holdings, LLC v. City of New York,

77 A.D.3d 434 (N.Y. App. Div. 2010) ..................... 5

iii

RULES AND STATUTES

Fed. R. Civ. P. 25(c) .................................................... 2

N.Y. C.P.L.R. § 1018 .................................................. 2

N.Y. E.D.P.L. § 207 ................................................ 2, 6

N.Y. E.D.P.L. § 402 .....................................................3

N.Y. E.D.P.L. § 503 .....................................................3

REPLY BRIEF FOR THE PETITIONER

The Petition established that this case presents a

chance both to resolve a split about how courts should

treat pretextual takings under Kelo v. City of New

London, 545 U.S. 469 (2005), and to consider whether

Kelo should be overturned entirely. That is because

the purpose of the taking here is to provide what the

New York Court of Appeals rightly called “a parking

facility used by the customers of a profit-making

business.” App. 10a. Nothing in the BIO disputes that

basic truth—nor could it, since Respondents are the

ones who persuaded the Court of Appeals of this

project’s private, “‘commercial’” nature. Ibid.

Instead, the BIO devotes most of its energy to a

host of purported vehicle problems—none of which

exists. It also tries to paint this taking as somehow

more public than the taking in Kelo. And it

halfheartedly suggests that this taking—which is

expressly designed to create a private parking lot for

a for-profit business—would be analyzed the same in

jurisdictions other than New York. At bottom, the

BIO simply highlights that Petitioner and

Respondents take fundamentally different views

about the breadth and continued viability of Kelo—

just as lower courts and even Members of this Court

have taken different views. The Petition should thus

be granted to allow the Court to determine which

views are correct.

A. This case is a good vehicle.

The BIO asserts that there are four vehicle

problems with this case. It claims that the Petitioner

lacks standing. BIO 10. And the claim is moot. BIO

11. And waived. BIO 12. And the whole thing is

barred by res judicata. BIO 26. Each of these

arguments is straightforwardly wrong.

1. Petitioner has standing.

The BIO objects that Petitioner lacks standing

because it transferred its interest in the condemned

property to a related LLC. BIO 10. This does not

matter. When Petitioner first filed this action below,

it was under contract to buy the land in question. New

York courts uniformly hold that contract purchasers

of land have standing to bring challenges like this.

See, e.g., Faith Temple Church v. Town of Brighton,

17 A.D.3d 1072, 1073 (N.Y. App. Div. 2005).

Petitioner’s interest in the land was later transferred

to a sister LLC, but New York law is equally clear that

an action or appeal may proceed in the name of the

original parties after a transfer of an interest in real

property unless a court orders otherwise. N.Y.

C.P.L.R. § 1018.1 The standing objection thus lacks

any merit as a matter of law (which is presumably

why Respondents never raised it below).

2. This case is not moot.

Alternatively, the BIO suggests that this case is

moot because Respondents have already taken title to

Petitioner’s property. BIO 11. Of course not.

First, a word of explanation: New York law divides

the taking of property for public use into three

independent lawsuits. One lawsuit (the sort from

which this petition arises) provides for a challenge to

the lawfulness of the taking. N.Y. E.D.P.L. § 207.

1 Federal law works the same way. Fed. R. Civ. P. 25(c).

Another allows a condemnor to take title to the

condemned property, conditional on tendering an

advance payment of estimated just compensation. Id.

§ 402. And the last allows the property owner to

challenge the amount of compensation. Id. § 503.

Nothing in New York law requires these three

proceedings to happen sequentially. So, even though

Petitioner filed this case to challenge Respondents’

right to take its property, App. 2a, Respondents in the

meantime tendered their advance payment and filed

a separate suit to take title, which is still pending on

appeal. See OCIDA v. Utica Med. Bldg., LLC, No. CA24-01217 (N.Y. App. Div., appeal filed July 24, 2024).

None of this odd structure matters. This Court has

already held, in the context of federal eminent

domain, that a condemnor’s taking title does not

extinguish the original property owner’s right to

challenge the taking’s validity. Catlin v. United

States, 324 U.S. 229, 241 (1945) (noting that a

contrary construction “would raise serious questions

concerning the statute’s validity”). And the Second

Circuit has recognized the same for New York law.

See, e.g., Brody v. Vill. of Port Chester, 345 F.3d 103,

120 (2d Cir. 2003) (Sotomayor, J.) (noting that

condemnee might be entitled to return of his property

if he prevailed on his constitutional claims). That is

true even where the condemnee has accepted an

advance payment because New York’s “statutory

scheme does not necessarily contemplate that

advance payment will be made only after all

challenges to title have been resolved[.]” Id. at 117.

And the rule could not be otherwise. If it were, a

condemnor could escape constitutional review of its

takings just by making sure it effected them quickly.

And even if the law were otherwise, the BIO is

simply wrong to say that Petitioner has acquiesced in

the taking of its land. Petitioner’s sister entity Utica

Med Building, LLC, continues to object to the taking.

Its acceptance of the advance payment was

specifically conditioned on its retention of the rights

advanced in this proceeding;2 it objected to the

transfer of its property in the state trial court,

specifically noting that any vesting of title might need

to be unwound if this parallel proceeding succeeded;

and, as noted, it has appealed the subsequent order

vesting title in Respondents. See OCIDA v. Utica

Med. Bldg., LLC, No. CA-24-01217 (N.Y. App. Div.,

appeal filed July 24, 2024). Simply put, Respondents

chose to transfer title while the legality of the taking

was still unsettled. New York law says they can do

this—but they cannot, by choosing to receive title,

eliminate the ongoing legal challenge to the taking.

3. The Fifth Amendment question was

preserved.

The BIO also says the Fifth Amendment claim was

either not raised below or else waived at oral

argument. This is wrong.

First, Petitioner expressly preserved its rights

under the Fifth Amendment at every stage of the

proceeding. Petitioner invoked the Fifth Amendment

at the initial public hearing. R.5305 (Petitioner

objecting to then-proposed taking in public comment

2 It accepted the payment “under a full reservation of its rights

to continue its challenge of OCIDA’s rights to take the Property

through eminent domain, including . . . filing a petition for

certiorari from the United States Supreme Court.” Ltr. from

Michael Fogel to Paul J. Goldman (Aug. 14, 2024).

because taking property “for the benefit of [a] private

entity . . . does not meet the requirement of a ‘public

purpose’ under the federal and state constitutions[.]”).

Then Petitioner raised it again in its briefing. See,

e.g., Br. for Petitioners, Bowers Dev., LLC, v. OCIDA,

2022 WL 17227957, at *28 (N.Y. App. Div. July 26,

2022) (“[Respondents] have failed to meet the public

purposes requirements of the federal and state

constitutions[.]”). The Appellate Division resolved the

public-use question on the merits, App. 4a, and then

Petitioner unsuccessfully sought leave to appeal,

again expressly invoking the Fifth Amendment. See,

e.g., Mot. for Leave to Appeal at 7, Bowers v. OCIDA

(N.Y. App. Div. March 6, 2024) (“This violates the

Fifth Amendment of the United States Constitution

and violates the public use doctrine and should be

examined by the Court of Appeals.”). To be sure, the

Fifth Amendment was not a major focus of the

briefing below—and perhaps wisely so, when “the

[New York] Court of Appeals . . . ha[s] made plain that

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). But the

brevity of the argument is irrelevant: This Court has

long held that a party need only properly invoke its

federal claim, not preserve any particular argument

in support of that claim. Lebron v. Nat’l R.R.

Passenger Corp., 513 U.S. 374, 379 (1995).

Petitioner’s repeated invocations of the Fifth

Amendment therefore preserve the claim.

And that properly invoked federal claim was never

waived. The BIO asserts that Petitioner expressly

waived its Fifth Amendment claim before the New

York Court of Appeals. See BIO 12 (citing Ct. App.

Trans. 26). But, in candor, Petitioner cannot tell what

in that transcript Respondents think could constitute

a waiver.3 The only thing that appears on page 26 is

a discussion of the difference between medical and

commercial uses as a matter of New York’s eminent

domain statutes. That was the issue on appeal at that

stage: whether this project was a sufficiently

“commercial” venture to fall within OCIDA’s

statutory authority. The Court of Appeals held that it

was, and it expressly declined to consider any of

Petitioner’s other claims in the first instance. App.

10a, 11a. After that, the Appellate Division resolved

the live Fifth Amendment question on the merits,

holding that this private “commercial” venture was a

constitutionally sufficient public use. App. 3a–4a.

That second question is ripe for this Court’s review.

4. This case is not barred by res judicata.

Finally, the BIO suggests that the constitutional

question here is barred by res judicata because, years

ago, the prior owner of Petitioner’s property filed an

unsuccessful

challenge

under

New

York

environmental-review laws. BIO 26. Again, of course

not. No trial-court decision could create a preclusion

problem here because New York vests exclusive

jurisdiction over challenges to the exercise of eminent

domain in the Appellate Division. N.Y. E.D.P.L. § 207.

A trial-court decision in an environmental-review

challenge didn’t resolve the constitutionality of the

taking because it couldn’t have—which, again, is why

3 The full transcript is available online:

https://www.nycourts.gov/ctapps/arguments/2023/Nov23/Transc

ripts/111423-89-Oral-Argument-Transcript.pdf.

Respondents neither pressed nor prevailed on this

argument below.

B. The BIO’s attempts to square this

taking with Kelo fail.

The BIO further suggests that this case presents

no occasion to revisit Kelo, either because the taking

is not really for private use or because the taking was

the product of a lengthy planning process unrelated

to a purely private benefit. Each argument is wrong.

Begin with the BIO’s defense that the government

has only leased the condemned property to a private

beneficiary, rather than transferring the property in

fee simple. BIO 19. This makes no difference because

the same thing was true in Kelo. 545 U.S. at 476 n.4

(noting that the New London equivalent of OCIDA

had negotiated a long-term lease with a private

developer). None of the opinions suggested that this

distinction mattered. Quite the contrary. Cf. id. at 478

(noting that “the City [was not] planning to open

condemned land—at least not in its entirety—to use

by the general public” (emphasis added)). And it

shouldn’t. If the Constitution forbids the taking of

land to transfer it to a private owner, it should make

no difference whether the government transfers an

entire interest in the property or whether it merely

transfers nearly all the interest in the property.

Likewise incorrect is the BIO’s idea (at 21) that

this taking is for public use because it will be used by

the private office building’s customers, who are

themselves members of the public. Given that all

businesses have customers, this much would be true

of any taking on behalf of any private business. The

customers of a Ritz-Carlton, for instance, are

members of the public, but this does not mean using

eminent domain to “replac[e a] Motel 6 with a RitzCarlton” would therefore be a public use. Kelo,

545 U.S. at 503 (O’Connor, J., dissenting).

Rather, this taking, like the Kelo taking, is private

in any ordinary sense of that word. The parking lot

will be used by a private business for “commercial”

purposes. Respondents concede that, at least during

the day (when people do most of their parking), the

public is forbidden from using the lot so the private

business’s customers can. See Ct. App. Trans. 30–31

(“Judge Rivera: No one else can park there? [Counsel]:

No one—no one else can park there.”). As the court

below noted, this taking was begun at the specific

request of private party that stood to benefit,

Respondent Central Utica Building. App. 8a. And the

process itself was driven by that private beneficiary,

who, among other things, privately planned with

OCIDA how best to exercise eminent domain months

before actually requesting it. R. 5282, 5596, 5602–05,

5611, 5747.

The BIO is also mistaken in its attempts to

characterize this taking as the product of a lengthy

government planning process akin to the one in Kelo,

which was driven by the analogue of OCIDA itself.

BIO 17–18; see also Kelo, 565 U.S. at 473–75

(explaining that “state and local officials . . .

target[ed] New London” for redevelopment, that the

New London Development Corporation created the

development plan, and that the Development

Corporation negotiated purchases). To be sure, here a

private hospital had created its own longstanding

plan to move into the area. And the planning for that

private hospital contemplated a private office

building somewhere nearby. Unsurprisingly, years

later, private developers like Petitioner and

Respondent Central Utica Building had acquired land

near the hospital to build exactly the kind of private

office space that would make sense near a hospital.

But the fact that the hospital itself was long planned

cannot turn this taking for an office-building parking

lot into a long-planned, government-driven taking. As

Respondents put it at oral argument before the Court

of Appeals, the hospital and the private medical-office

building are “separate and distinct projects. They’re

separate ownership, separate financing, they’re

separate[.]” Ct. App. Trans. at 31–32.

And it is undisputed on this record that this taking

was undertaken solely because it was requested by

the separate private for-profit entity that owns the

office building. To the extent accountable elected

officials interacted with this taking, they did so to

oppose it.4 So this is not a taking driven by a

longstanding, government-led economic development

plan. It is, instead, what the New York Court of

Appeals said it was: a taking at the “request[]” of a

private business that “house[d] private, rent-paying

doctors’ offices.” App. 8a. And even if Respondents

were right—if this privately driven taking did fit

squarely within the limits of Kelo—that would be all

the more reason to grant the second question

presented and overturn that decision.

The then-mayor of Utica, where Petitioner’s property sits,

publicly opposed this taking. R. 6329.

C. This case would have come

differently in other jurisdictions.

out

The BIO also tries to cast doubt on the existence of

the split laid out in the Petition. After all, it reasons,

at least one New York case has rejected a taking

(related to a power company), and so New York must

apply the same standard of review as anywhere else.

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

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

But the split of authority is not about whether any

taking can be rejected under any circumstances. The

split of authority is about the legal rule in evaluating

claims of pretext—and “courts have been all over the

map.” Pet. 22 n.16 (citation omitted). In

Pennsylvania, for example, it “is not enough to merely

wave the proper statutory language like a scepter

under the nose of a property owner and demand that

he forfeit his land[.]” Middletown Twp. v. Lands of

Stone, 939 A.2d 331, 340 (Pa. 2007). Instead, courts

there look into the “true goal of the taking[,]” asking

whether the government’s asserted public purpose

“was real and fundamental, not post-hoc or pretextual.” Id. at 338, 340. If that test applied here, a

court would have to ask why the asserted public use

(that the public could use this private parking lot “at

night” when its new owner didn’t need it) was never

mentioned at the public hearing in support of this

project and only came in a post-hoc letter from the

private beneficiary.5 The same would be true in

Hawaii, which requires an inquiry into “the actual

purpose of a condemnation action.” County of Hawaii

v. C & J Coupe Fam. Ltd. P’ship, 198 P.3d 615, 647

5 This post-hoc letter is in the record below at R. 5992.

(Haw. 2008); see also Pet. 11–14 & n.9 (collecting

cases).

But, under the New York test, the actual purpose

was irrelevant. All that mattered below was that the

condemnor asserted a public benefit. App. 4a. The fact

that this purpose was never even mentioned in the

public hearing was irrelevant because the only

inquiry was into whether the purpose had been

asserted. In short, the condemnor had “wave[d] the

proper statutory language like a scepter under the

nose of” Petitioner, Lands of Stone, 939 A.2d at 330,

and the court below said that was enough. In other

jurisdictions, it is not. That is a division of authority

worth this Court’s attention.

D. Kelo was wrongly decided and should

be revisited.

At bottom, the dispute is not about the facts here

or the specifics of Pennsylvania’s case law. Instead,

the dispute is about what the Fifth Amendment

means. Respondents believe not only that Kelo was

rightly decided but that it should be read as

expansively as possible. And Respondents are not

alone—their amicus, the County of Oneida, seems to

think that the very concept of a public-use

requirement conflicts with the meaning of

“[s]overeignty,” which “requires the sovereign to have

dominion over its subjects, including the right to take

property for ‘public benefit.’” Oneida Amicus 6–7. It is

surely not the only government entity that feels that

way. There is, undeniably, a stark disagreement

about the scope (or perhaps the wisdom) of the

Constitution’s Public Use Clause—not just between

these parties, but among lower courts and even

among Members of this Court. Pet. 7–13, 22–23. The

petition should be granted to allow the Court to

resolve it.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.