Amicus Curiae Brief — Kelo v. New London

Supreme Court. US.

i FILED

:

'

;

Fey JAN 21 2005 |

aa , OFFICE OF THE CLERK |

No.04-108

IN THE

Dupreme Court of the United Peates

SUSETTE KELO, THELMA BRELESKY, PASQUALE CRISTOFARO,

WILHELMINA AND CHARLES DERY, JAMES AND LAURA

GURETSKY, PATAYA CONSTRUCTION LIMITED PARTNERSHIP,

AND WILLIAM VON WINKLE,

Petitioners,

v.

City of New London and New London

Development Corporation,

Respondents,

On Writ of Certiorari to the

Supreme Court of Connecticut

Brief Amici Curiae of Brooklyn United for Innovative

Local Development (BUILD), Rev. Herbert Daughtry,

and The New York City and Vicinity Carpenters Labor-

Management Corporation in Support of Respondents

SEAN H. DONAHUE DAVID T. GOLDBERG

1477 A St., NE Counsel of Record

Washington, D.C. 20002 99- Hudson Street, 8th Fl.

(202) 544-4037 New York, NY 10043-

(212) 334-8813

Attorneys for Amici Curiae

TABLE OF CONTENTS

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nD ees cccbvued Gdbreneedoscaces l

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I. The Fifth Amendment, as Applied to the States

through the Fourteenth, Does Not Disable

State and Local Government From Taking

Property for Economic Development Purposes,

When Just Compensation Is Paid ................. 6

A. Promoting Economic Activity For The Benefit

of Its Inhabitants Is A Legitimate Object

— and A Fundamental Responsibility — of State

EE Sc dencccdvccscoccccces 6

B. Promoting Economic Development Is A

Historic Power of Government ..... whine aon 1]

More Stringent Federal Review of Eminent

Domain Is Neither Necessary Nor Appropriate ..... 17

A. Working Class and Minority City Residents Would

Not Benefit From Constitutional Limits On

Economic Development For The Public Benefit . 17

B. Principles Supporting Restrained Judicial Review

Apply To “Public Use” Ciaims ...:>.......... 21

C. Restrained Review Is Supported

By the Text, Structure and Original Intent

EE IE 25

D. Considerations of Federalism Strongly

Support Adherence To Deferential Standards

of Federal Constitutional Review ............. 28

0 Se .tttt—<i=i‘isSC 30

-iii-

TABLE OF AUTHORITIES

Cases

Alexander v. Sandoval, 532 U.S. 275 (2001) .......... 23

Allydon Realty v. Holyoke,

Ee 16

Aposporos v. Urban Redev. Comm'n, 790 A.2d 1167

EEE EEE EE 29

Village of Arlington Heights v. Metropolitan

Hous. Dev. Corp., 429 U.S. 252 (1977) ..... 2... 6... 17

Armstrong v. United States, 364 U.S. 40 (1960) ....... 26

AvalonBay Communities, Inc. v. Town of Orange,

EE eee 18

Bacchus Imports, Lid. v. Dias, 468 U.S. 263 (1984) ...... 8

Baltimore & O.R.R. v. Van Ness, 2 F. Cas. 574

es EES GEE occccccccccccceccccccese 27

Berman v. Parker, 348 U.S. 26 (1954) ............ passim

Board of Regents v. Roth, 408 U.S. 564 (1972) ......... 29

Brown v. Legal Found., 538 U.S. 216 (2003) ........ 7, 26

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ............ 27

Chester Residents Concerned for Quality Living v. Seif,

132 F.3d 925 (3d Cir. 1997), vacated,

Se Seaubdedhedeenccescccccesec 23

-iV-

Chicago, B. & Q. Ry. v. Chicago, 166 U.S. 226 (1897) .. 27

Chicago, B. & O.R. Co. v. McGuire, 219 U.S. 549 (1911) . 8

Clark v. Nash, 198 U.S. 361 (1905)... ............ 15, 29

Cleburne v. Cleburne Living Center. Inc.,

See ee Es po nccdvehndsccecncesesvess 18

Courtesy Sandwich Shop, Inc. v. Port of N.Y. Auth.,

Se SPE accenstescnsucenapanessecs 10

Cuyahoga Falls v. Buckeye Community Found,

PPE GEE wcbedachdcaconcadsonschaeeeed 18

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) ...... 27

Fallbrook Irrigation Dist. v. Bradley,

ET ccunvdadcucsccsuenscessenes 27

First English Evangelical Lutheran Church v.

Los Angeles County, 482 U.S. 304 (1987) ........... 26

City of Edmonds v. Oxford House, Inc.,

Ss Coat cndencdisccnasweunseuedes 17

Everson v. Board of Educ., 330 U.S. 1 (1947) ........... 7

Ferguson v. Skrupa, 372 U.S. 726 (1963) .............. 7

~ General Motors Corp. v. Tracy, 519 U.S. 278 (1997) .... 30

Hairston v. Danville & W. R.R. Co.,

Ds doenedtetuamieecsedunheun net 14

-V-

—

Hawaii Housing Auth. v. Midkiff,

467 U.S. 229 (1984) ....... peeseceesoccecooes passim

Head v. Amoskeag Mfg. Co., 113 U.S. 9 (1885) ........ 14

Hodel v. Irving, 481 U.S. 704, 712-13 a 16

HUD v. Rucker, 535 U.S. 125 (2002) ...........2.... 24

Town of Huntington v. Huntington Branch, NAACP,

Ss SRD contdocoueceesecessss 23

Jacobs v. Clearview Water Supply Co.,

i ie ot ee teegenennet 14, 15

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ..... 8

Keystone Bituminous Coal Ass'n v.

DeBenedictis, 480 U.S. 470 (1987) ............ 16, 30

Kimball Laundry Co. v. United States,

EE a cnn eee teodsenpennnesss 22

Lochner v. New York, 198 U.S. 45 (1905) ........... 7,14

Lucas v. South Carolina Coastal Council,

eh, Sn in dc cncucusneuseeesense 16, 29

Mitchell v. Harmony, 54 U.S. 115 (1852) ............. 27

Mt. Vernon-Woodberry Cotton Duck Co. v.

Alabama Interstate Power Co., 240 U.S. 30 (1916) ... 14

Munn v. Illinois, 94 U.S. 113 (1876) ...........0000-- 8

-vi-

National R.R. Passenger Corp. v. Boston &

Maine Corp., 503 U.S. 407 (1992) ........... 6, 15, 22

Nebbia v. New York, 291 U.S. 502 (1934) ......... 7, 9, 22

New York Cent. R. Co. v. White, 243 U.S. 188 (1917) .... 8

New York City Bd. of Estimate v. Morris,

a nec actediuen cbhdviddenaeds 21

Nordlinger v. Hahn, 505 U.S. 1 (1992) ............... 24

Olmstead v. Camp, 33 Conn. 532,

CED obccecccnussndesduends 13

Pennhurst State School & Hosp. v. Halderman,

TT, cccsnecpeseedakweaeneseinede Ge

Pequonnock Yacht Club, Inc. v. City of Bridgeport,

Fe CES SEED Sc ceccbeusedcedccesens 29

64th Street Residence, Inc. v. City of New York,

PD acuiccddadédsotaesensudcess 10

Southern Burlington County NAACP v. Mi. “aurel,

Pe I ee 17

Strickley v. Highland Boy Mining Co.,

eS a eee Peles 15

Thompson v. HUD, 2005 WL 27533 (D. Md. 2005) .... 20

U. S. ex rel. TVA v. Welch, 327 U.S. 546 (1946) ...... 6, 11

United States v. Caltex (Philippines), Inc.,

POP COPED 6 6bhSEEetccceesccedscencess 27

-vii-

United States v. Central Eureka Mining Co.,

EE ee

United States v. Russell, 80 U.S. 623 (1871) (mem.) ....

United States v. Pewee Coal Co., 341 U.S. 114 (1951) ..

Vanhorne's Lessee v. Dorrance,

2 U.S. (2 Dall.) 304 (C.C.D. Pa. 1795) ............

Washington v. Davis, 426 U.S. 229 (1976) ...........

-~

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) ....

Western & S. Life Ins. Co. v. State Bd. of Equalization,

Ge Ce GEESE ove cccccccccccsccocccccces

Other Authorities

Bartik, WHO BENEFITS FROM STATE &

LOCAL ECONOMIC DEVELOPMENT POLICIES? (1991)

Bowman, The Visible Hand: Major Issues

in City Economic Policy (Natl. League of Cities

Working Papers Nov. 1987) ............0.0000e.

Downs, The Big Picture,

BROOKINGS REVIEW (Fall 1998) ..................

f

Goldsmith, et al. , The Impact of Labor Force History

on Self-esteem and its Component Parts,

Anxiety, Alienation and Depression,

2 J. ECON. PSYCH. 17 (1996) .............2200eee-

22

eo

-Vili-

Harrington, Public Use and the Original

Understanding of the So-Called “Takings” Clause,

53 HASTINGS L. J. 1245 (2002) .......... 12, 13, 14, 25

Hart, Colonial Land Use Law and Its Significance

for Modern Takings Doctrine,

109 HARV. L. REV. 1252 (1996) .......... 12, 13, 17, 25

R. KAHLENBERG, ALL TOGETHER

Now: CREATING MIDDLE-CLASS SCHOOLS

THROUGH PUBLIC SCHOOL CHOICE (2002) ............ 19

Merrill, The Economics of Public Use,

72 CORNELL L. REV. 61 (1986).............. 11, 16, 25

Rubenfeld, Usings, 102 YALE L. J. 1077 (1997) ........ 27

Rusk, CITIES WITHOUT SUBURBS (1993) .............. 9

Sagalyn, TIMES SQUARE ROULETTE 469 (2001) ........ 21

Taylor, The Dudley Street Neighborhood Initiative

and the Power of Eminent Domain,

PP ee MOU coseroscdccecvecodes 11

Vassallo, Solving Camden's Crisis: Makeover

or Takeover?, 33 RUTGERS L. J. 185 (2001) ......... 10

Wilson, WHEN WORK DISAPPEARS: THE WORLD

OF THE NEW URBAN POOR (1996) ................ 9,11

INTEREST OF AMICI CURIAE

Brooklyn United for Innovative Local Development

(BUILD) is a Brooklyn-based community organization

committed to promoting economic opportunity, financial self-

sufficiency, and prosperity in the socioeconomically depressed

communities of our borough. In part because of decades of

economic stagnation, Brooklyn’s glorious vibrancy has been

shrouded by stark social realities: nearly half its African-

American men are without jobs, and more of them in prison than

college, and over 60% of our children are failing to meet

educational standards.

BUILD believes that overcoming the challenges confronted

by inner-city communities like Brooklyn’s demands a multi-

dimensional strategy, part of which is development that

generates the jobs, attractive amenities, and business

opportunities that are essential for combating unemployment,

poverty and undercapitalization. We recognize that the use of

eminent domain authority can be indispensable to bringing such

development — and the enormous attendant community benefits

— to fruition.

Rev. Herbert Daughtry is the National Presiding Minister

of the House of the Lord Churches. His forty years of

involvement in church and community activity have earned him

the title “The People’s Pastor.” Active in the struggle for the

integration of schools and for community control of schools in

the 1960s, Rev. Daughtry was a leader of the Coalition of

Concerned Leaders and Citizens to Save Our Jobs, a 1970s

effort which used boycotts to win jobs and services for African

Americans from Brooklyn merchants. He is president and

founder of the African People’s Christian Organization, a

member of the Black Leadership Commission on AIDS, and

chairman emeritus of the National Black United Front. He also

has served as co-chair of the Ministers Against Narcotics and

* No counsel for any party authored any part of this brief. No person or

- @htity, other than Amici and their counsel made a monetary contribution

toward submission of this brief, which is filed with the parties’ written

consent.

2

vice chair of the Bedford Stuyvesant Youth in Action Board.

The New York City and Vicinity Carpenters Labor-

Management Corporation is a New York nonprofit

organization that seeks to promote economic competitiveness in

the building and construction industries and expand work

opportunities for union carpenters and their employers. Many of

its union members live in Brooklyn. Unions built Metrotech, a

complex, built on land assembled under eminent domain

powers, that included the first Class A office building in

Brooklyn since the 1960s and first hotel since the 1920s, and

that, in addition to tax revenues and construction employment,

has resulted in thousands of permanent jobs for Brooklynites.

That project catalyzed private construction that has invigorated

the economy for Borough and City residents and built capacity

for local minority- and women-owned contractors.

Union labor also built Atlantic Terminal and Atlantic

Center, projects that replaced blighted, largely vacant inner city

property with a vibrant shopping center — which, in addition to

tax revenues and jobs, represented a pioneering effort to attract

national retailers and a large supermarket to residents of a poor,

predominantly minority neighborhood, who had long been

denied the opportunity for high-quality, low-priced food

shopping that those in affluent neighborhoods take for granted.

This project created 1080 full-time jobs (with benefits), 48% of

which are held by people living within two miles.

The Atlantic Yards Project. Amici are strongly supportive

of Atlantic Yards project, a proposal to replace a blighted site —

now largely occupied by rail yards, vacant and industrial

property -- with a mixed-use development, projected to include

4,000 units of rental housing, including 2,000 set aside for low-

and middle-income renters, four office buildings, a sports arena

designed by renowned architect Frank Gehry — which would be

home to the NBA Nets, the first professional sports franchise to

call Brooklyn home since the Dodgers left town in 1957 — along

with six acres of open space and a community center.

3

The project will bring an estimated 10,000 permanent and

15,000 construction jobs, contracting opportunities for minority-

and women-owned business, and billions of dollars in net

benefits, including $2.8 billion in new net tax revenue to New

York City and New York State over 30 years. It will make a

real difference for a city where 48.3% of African-American

males are unemployed or out of the workforce entirely, more

than | in 5 households pay half their income on rent, and fiscal

problems continue to force cuts in important services.

Amici do not seek to persuade the Court of the wisdom of

the Atlantic Yards proposal, the merits of which are being

vigorously debated in meetings throughout the community and

on the editorial pages of the city’s newspapers. Nor do the legal

issues before the Court in this case have potential to directly

affect the proposed project — which, like Metrotech and Atlantic

Center, will be built in a blighted area under State law that,

unlike Connecticut’s, does not authorize eminent domain

exclusively for economic development purposes.

Rather, this Brief is submitted in the hope that our

perspective, derived from participation in the urban

development process will aid the Court’s informed resolution of

the issues presented. This experience contradicts many of the

assertions advanced by the Petitioner property owners and their

amici. In particular, while their accounts fairly accentuate the

costs that the condemnation power can impose and highlight

examples of its misuse (including notorious instances of racial

discrimination), the Court should not decide the case on the

jarring premise — advanced by Petitioners and repeated in

numerous amicus briefs — that government promoted economic

development projects should be viewed as transferring wealth

from individuals of modest means fo the wealthy or that such

efforts are opposed by poor and working people and people of

color. The purpose of projects like the one at issue is to make

a material difference in the lives of residents of economically

distressed cities, the vast majority of whom are themselves of

4

extremely modest means; our experience with similar projects

teaches that these purposes can in fact be accomplished.

Summary of Argument

The question at the heart of Petitioners’ challenge is, in one

sense, an extremely difficult one: when do the public benefits

of a project that will revitalize a large section of a distressed

city, increase employment opportunity for the city’s inhabitants,

and provided sorely needed additional tax revenues warrant

displacing people who live in the area and would prefer to

remain? But the hard questions this case raises are ones of

social and economic policy. As a matter of federal

constitutional law, the questions Petitioners raise have one

clearly correct answer: the Fifth Amendment’s “public use”

language supplies no authority for a federal court to overturn

Respondents’ State-authorized determination that the public

benefits warranted use of the eminent domain power. Rather,

the Constitution entitles Petitioners to the same remedy as those

whose property is appropriated to build a road or government

building (or develop a “blighted” area): Just Compensation.

Rather than have the case decided in accordance with settled

precedent, Petitioners ask the Court to announce either of two

alternative new rules of constitutional law: (1) a “bright line”

rule that the eminent domain power can never be used for an

economic development project like this one — or (2) one

providing that such exercises (but no others) should be subject

to heightened judicial scrutiny, whereby any property owner (not

merely a homeowner) could obtain an injunction from a federal

court if the court were persuaded that the benefits the project

was intended to provide were insufficiently “certain.”

Both proposals should be firmly rejected. The first is simply

an invitation for this Court to unlearn the most basic lessons of

judicial restraint — and return to a regime where federal courts

presumed to delimit, in the name of the Constitution, the

legitimate objects of State government. The specific limitation

Petitioners urge would also defy logic: governments would be

ene

- ne ae

5

categorically without power to pursue large objects that were

central to their survival — and a homeowner who could not

prevent the government from erecting a municipal parking lot

could stop a project, including one broadly supported by her

neighbors, that offered vast benefits for the people of the city.

Such results might be tolerated if the Constitution plainly

limited condemnation to the construction of government

buildings or if this Court had a long history of so construing it

— perhaps even if there was long practice of governments

confining themselves to such pursuits. But the opposite is true:

for this Nation’s entire history, legislatures have authorized

private condemnation when doing so was to the public

advantage; this Court has, for nearly as long, held that “public

use” does not prohibit a taking by or transfer to a private party

where the government has determined that doing so confers a

public advantage — in cases arising from circumstances that are,

in every constitutionally meaningful respect, indistinguishable

from this one.

This Court should also reject the heightened scrutiny

proposal and adhere to the rule that exercises of the eminent

domain power are reviewed under the same, highly restrained,

standards are exercises of other governmental powers. To the

extent the proposal depends on the counterintuitive — and

counterfactual — notion that economic development projects,

though pursued for public benefit, generally harm poor and

working people, that is reason alone to reject it. Moreover,

although Petitioners and amici catalogue the potential harms and

dangers that improvident exercise of eminent domain can cause,

the rule they propose is not addressed to those problems, and the

dangers they identify are fundamentally no different from those

posed under other powers whose exercise is entrusted to

political process.

Finally, although Petitioners package their rule as a modest

improvement, it is neither modest nor an improvement over

current law. It would require courts to decide as matters of law

6

questions that are both technical and value laden — and would

entrust that job to federal courts, making them the forum of

choice for individuals who want to stop projects and reversing

longstanding, highly salutary practice of resolving “public use”

questions in State courts on State law grounds.

ARGUMENT

I. The Fifth Amendment, as Applied to the States through the

Fourteenth, Does Not Disable State and Local Government

From Taking Property for Economic Development Purposes,

When Just Compensation Is Paid

A. Promoting Economic Activity For The Benefit of Its

Inhabitants Is a Legitimate Object — and a Fundamental

Responsibility — of State and Local Government

1. The federal Constitution and settled American political

tradition confer on elected officials and their delegated agencies,

rather than on courts, the power to define what public activities

serve the public interest. See U. S. ex rel. TVA v. Welch, 327

U.S. 546, 551 (U.S. 1946) (“it is the function of Congress to

decide what type of taking is for a public use”).

Accordingly, this Court has never held that governments’

eminent domain powers are limited to particular “categories” of

governmental undertakings. Instead, it has interpreted the Fifth

Amendment’s reference to “public use” as no less “broad and

inclusive” than “the public welfare,” and has emphasized that

the relevant constitutional inquiry is “whether [the eminent

domain] power is being exercised for a public purpose.” Berman

v. Parker, 348 U.S. 26, 33 (1954). Governments are free to

select the means to fulfill purposes within their broad police

powers, whether by taxation and public spending, regulation, or

eminent domain, see National R.R. Passenger Corp. v. Boston

& Maine Corp., 503 U.S. 407, 422 (1992) (“the public use

requirement of the Takings Clause is coterminous with the

regulatory power”); Hawaii Housing Auth. v. Midkiff, 467

U.S.229, 240 (1984), and whether or not a “public end [is]* * *

7

better served through an agency of private enterprise than

through a department of government,” Berman, 348 U.S. at 33-

34, is likewise for legislative determination.

Petitioners’ per se rule of governmental disability is redolent

of “a time when the Due Process Clause was used by this Court

to strike down laws which were thought unreasonable, that is,

unwise or incompatible with some particular economic or social

philosophy.” Ferguson v. Skrupa, 372 U.S. 726, 729 (1963); see

Lochner v. New York, 198 U.S. 45, 57 (1905) (question

presented was whether New York statute regulating wages and

hours of bakery workers was “within the police power of the

state”). This Court long ago abandoned the practice of grading

exercises of state police powers against its own view of the

proper categories of governmental action, confirming that

it is not only the right, but the bound and solemn duty of a

state, to advance the safety, happiness and prosperity of its

people, and to provide for its general welfare, by any and

every act of legislation, which it may deem to be conductive

to its ends * * * [in relation to its] internal police * * * the

authority of the state is complete, unqualified, and exclusive

Nebbia v. New York, 291 U.S. 502, 523 (1934)(citation omitted).

In light of this appropriately deferential inquiry, the

Midkiff Court could accurately observe that “where the exercise

of the eminent domain power is rationally related to a

conceivable public purpose, [this] Court has never held a

compensated taking to be proscribed by the Public Use Clause.”

467 U.S. at 241 (emphasis added).

The object of the eminent domain exercise here — fostering

economic development in an area of the State marred by a

stagnant economy and underemployment — is, as dozens of this

Court’s precedents confirm, entirely legitimate, Brown v. Legal

Found., 538 U.S. 216, 23! (2003) (equating “public use” with

requirement that government action be “legitimate”’); see, e.g.,

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 271 (1984) (“no

8

one disputes that a State may enact laws pursuant to its police

powers that have the purpose and effect of encouraging

domestic industry”); West Coast Hotel Co. v. Parrish, 300 U.S.

379, 393 (1937): New York Cent. R. Co. v. White, 243 U.S. 188,

202 (1917); Chicago, B. & O.R. Co. v. McGuire, 219 U.S. 549,

567-69 (1911): Munn vy. Illinois, 94 U.S. 113, 124-25 (1876).

2. Even if substantive review of legitimate ends of State

government were authorized, however, Petitioners’ remarkable

suggestion that a government's legitimate objectives do not

encompass power to promote economic activity, for the purpose

of adding jobs to the local economy, increasing revenues

available for municipal services, and revitalizing a declining (if

not blighted) urban area would be plainly untenable.

In a very real sense, the promotion of economic activity —

and prevention of economic degeneration — is not merely one of

the concerns of State and local government; it is the first one, on

which all other “public uses” depend. Cf Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 160 (1963) (“The Constitution * * * is

not a suicide pact”).'

a. Economic activity is a prime determinant of a city’s

vitality — and has a profound effect on the quality of life of its

inhabitants and on the life chances of future generations. As the

experiences of city after city across the Nation attest, economic

stagnation and decline can lead to a painful downward spiral -—

the departure of jobs and job opportunities reduces the city’s tax

base, causing cutbacks in services, which induce further

disinvestment, further fiscal duress, reductions in essential

services, which leads to higher crime and diminished

educational opportunity. New business do not form; institutions

that can leave for suburbs and other cities do. See, e.g., W.

' Local governments “expend tremendous energies maintaining and

enhancing their economies.” A. Bowman, The Visible Hand: Major Issues in

City Economic Policy 7 (Nat\. League of Cities Working Papers Nov. 1987).

Of 326 mayors surveyed, 86% identified economic development as one of

their top three priorities, and 36.5% ranked it highest. See id. at 8.

9

WILSON, WHEN WorK DISAPPEARS: THE WORLD OF THE NEW

URBAN PooR (1996); CITY OF CAMDEN MULTI-YEAR

RECOVERY PLAN, Fis <AL YEARS 2001-2003 (Nov. 21, 2001)

(describing plight of city that lost population, jobs, and tax

base); A. Downs, The Big Picture, BROOKINGS REVIEW at 10

(Fall 1998). This specter is especially serious in older cities,

such as New London, which are small and unable to tax

metropolitan wealth. See, e.g, D. RUSK, CITIES WITHOUT

SUBURBS (1993).

b. Petitioners and their amici fairly call attention to the

genuine burdens borne by individuals displaced by new

development, but the human toll of economic stagnation and

urban decline is no less worthy of governmental concern. See,

e.g., A. Vassallo, Solving Camden's Crisis: Makeover or

Takeover?, 33 RUTGERS L. J. 185, 190 (2001) (“Camden leads

the nation in statistics that measure the failure of life for

children,’ including poverty, babies born to a teen-ager, and

unmarried mothers”) (quoting P. Kerr, Camden Forces its

Suburbs to Ask, What if a City Dies?, N.Y. TIMES A\| (Sept. 7,

1989); see also A. Goldsmith et al. The Impact of Labor Force

History on Self-esteem and its Component Parts, Anxiety,

Alienation and Depression, 8 J. ECON. PSYCH. 494 (1996)

(periods of high unemployment associated with increased rates

of suicide and increased spouse abuse); F. McKee-Ryan et al,

Psychological and Physical Well-Being During Unemployment:

A Meta-Analytic Study, 90 J. App. PSYCH. 53 (2005).

Downs explains:

Core-area poverty concentrations contribute to adverse neighborhood

traits that “push” many businesses and middle- and upper income

households of all races -- mainly households with children — out of

central cities into suburbs. * * * * A self-aggravating downward fiscal

spiral weakens the ability of core-area governments to provide quality

public services and results in grossly unequal! environments across our

metropolitan areas. Such disparities in neighborhoods in which children

are raised make a mockery of the American ideal of equality of

opportunity.

10

As the trial court in this case pointed out. although

Respondents appear to be “abstract entities.”

The people behind these abstractions have a dream also. The

accomplishment of their dream presents no opportunity of

personal gain or favor. Their dream is for their city buffeted

for decades by hard times and until recently declining

prospects. They hope by this development project and

resistance to the plaintiffs’ litigation to provide an economic

and social uplift for their city--jobs that will provide the

underemployed or unemployed new hope. new tax monies

so the tax burden on the community can be lifted and new

programs and projects for the city that can be realized.

Kelo v. New London, 2002 WL 500238, * 4 (Super. Ct. 2002).

Their “bounden and solemn duty * * * to advance the safety.

happiness and prosperity of its people.” Nebbia, 291 U.S. at 523,

requires State and local governments to confront the “social

costs” that urban economic distress imposes.

3. Economic development efforts — including projects of the

kind at issue in this case — seek to respond to and prevent these

destructive dynamics, by broadening and diversifying the local

tax base, creating employment opportunities, and revitalizing

declining areas and neighborhoods. Although not every project

will succeed, see Midkiff, 467 U.S. at 242 (“whether in fact the

provision will accomplish its objectives is not the question”),

amici can attest that the benefits can be real and substantial.

4. The size of such projects and the realities of urban land

ownership often make them impracticable to accomplish

of Times Square, the building of Lincoln Center, the

construction of World Trade Center — symbols of New York

City’s resurgence and engines of an economy that benefit

millions — could not have been accomplished without eminent

domain power. See 64th Street Residence, Inc. v. City of New

York, 4 N.Y.2d 268 (1958) (rejecting challenge to Lincoln

Center eminent domain); Courtesy Sandwich Shop, Inc. v. Port

of N.Y. Auth.12 N.Y.2d 379 (1963) (rejecting challenge to

condemnation for World Trade Center).

5. Eminent domain is never a first resort. see infra, but its

availability ensures that no individual property owner can

effectively overrule the determination that project — or “hold

out” — in the hope of extracting narrow benefits from the

condemning authority. See Taylor, The Dudley Street

Neighborhood Initiative and the Power of Eminent Domain. 36

B.C. L. REV. 1061, 1081-86 (1995); Merrill, The Economics of

Public Use, 72 CORNELL L. REV. 61, 75 (1986).

6. Beneficiaries of such projects, both direct, and indirect.

are disproportionately — 0. erwhelmingly — people of “modest

means.” Pet. Br. 12. By creating job opportunities for local

residents, such projects attack what may well be the single

greatest contributor to urban misery.’ Such projects also boost

tax revenues that support services such as public hospitals;

public education, and affordable housing.‘ And they can have

vast, indirect and intangible benefits, such as attracting and

retaining residents, businesses, civic and cultural institutions.

See generally T. BARTIK, WHO BENEFITS FROM STATE & LOCAL

ECONOMIC DEVELOPMENT POLICIES? (1991) (concluding that

metropolitan economic growth benefits African Americans, the

> “The consequences of high neighborhood joblessness are more

devastating than those of high neighborhood poverty. * * * Many of today's

problems in the inner-city ghetto neighborhoods -- crime, family disolution.

welfare. low levels of social organization. and so on -- are fundamentally a

consequence of the disappearance of work.” WJ. WILSON, WHEN WORK

DISAPPEARS at xii.

* In FY2003, $10.4 billion of New York City’s budget of about $45

billion was dedicated to social services: children’s services; homeless

Citizens Budget Commission, City of New York Expenditures by Agency

(available at www.cbcny.org/pocket03 pdf).

12

less educated. and younger workers the most. thereby reducing

income inequality).

B. Promoting Economic Development Is A Historic Power

of Government

Although their fluidity has been a defining feature of States’

lawful powers. see Welch. 327 U.S. at 552 (“departure from * *

* judicial restraint would result in courts deciding on what is

and is not a governmental function and in their invalidating

legislation on the basis of their view on that question at the

moment of decision”), there is nothing novel or suspect about

the use of eminent domain — as opposed to taxing. spending, or

regulation — to pursue these economic benefits.

1. As Petitioners are constrained to recognize (Br. 18-19),

State Legislatures have. throughout the Nation's history,

authorized the use of the condemnation power to transfer

property from one private owner to another. on the ground that

the new owner's use of the land contributed to economic growth

or conferred some economic benefit on the community.

See Harrington, Public Use and the Original Understanding of

the So-Called “Takings” Clause, 53 HASTINGS L. J. 1245, 1247

(2002) (“American legislatures repeatedly used their power of

expropriation to effect all manner of social and economic

engineering. frequently transferring property from one private

entity to another where it was thought that the transfer would

effect some greater economic purpose”).

Resort to eminent domain for economic ¢velopment

purposes was widespread in colonial times. Cf Midkiff, 467

U.S. at 241 & n.5 (noting colonial antecedents for challenged

measure). Indeed,

Colonial lawmakers often regulated private landowners’

usage of their land in order to secure public benefits, not

merely to prevent harm to health and safety. Indeed, the

public benefits pursued by such legislative action included

some that consisted essentially of benefits for other private

13

landowners. Legislatures often attempted to influence or

control the development of land for particular productive

purposes thought to be in the public good. Legislatures

compelled owners of undeveloped land to develop it, beyond

what was required by the original grants, and compelled

owners of wetlands to participate in drainage projects.

Owners risked losing preexisting mineral rights if they failed

to conduct their mining with sufficient promptness. Owners

of land suitable for iron forges risked losing their land if

they declined to erect such forges themselves. In towns and

cities, landowners were constrained by measures intended to

channel the spatial pattern of development, to optimize the

density of habitation, to promote development of certain

kinds of land, and to implement aesthetic goals.

Hart, Colonial Land Use Law and Its Significance for Modern

Takings Doctrine, 109 HARV. L. REV. 1252, 1282-83 (1996).

measures requiring that vacant or sparsely developed urban land

be developed, and providing for the mandatory transfer of the

land to a more productive private owner if it was not. See

id (citing and discussing statutes). These laws were

complemented by others that permitted appropriation of rural

land to advance the agricultural (and later industrial) economy.

For example, a 1746 Connecticut statute authorized owners of

“*lands lying convenient to be improved as a common field” to

compel participation by unwilling neighbors, id at 1265 & n.82,

and “Connecticut's copper-mine legislation * * * authorized the

taking of private property that was already devoted to the desired

use — mining — but was not being utilized as expeditiously as the

Assembly desired.” Jd at 1265.

Laws providing for the compulsory transfer of property to

private parties for legislatively determined publicly beneficial

uses remained common after independence. The relevant

legislative finding in this case echoes the rationale articulated in

the first case decided under the “public use” clause of the State’s

14

Constitution, Olmstead v. Camp, 33 Conn. 532, 1866 WL 927

(Conn. 1866), which held that a private mill owner was

permitted, on payment of compensation, to flood his neighbor's

land. Acknowledging that the mill owner had no legal

obligation to allow the public access to the mill, the court held

the “public use” requirement satisfied, because the owner’s use

of the property was “productive of general benefit.” 1866 WL

927 *9. The court explained that “any appropriating of private

property by the state under its right of eminent domain for

purposes of great advantage to the community” — not just those

for involving “possession, occupation, [and] direct enjoyment,

by the public” — should be considered a a taking for public

use.”’ “{T]akings of land by private parties for the building of

mills or ferries were thought to be every bit as legitimate a use

of the eminent domain power as takings to build forts or post

offices.” Harrington, 53 HASTINGS L. J. at 1298.

Later statutes delegated the States’ eminent domain power

to private interests for a wide variety of manufacturing projects

designed to achieve desirable economic ends. /d. at 1254 n.28

(noting that because legislatures were “anxious to attract private

investment,” they did not attempt to regulate these enterprises as

public utilities”). Such measures were upheld by State courts on

the ground that “if the proposed improvement tends to enlarge

productive power of any considerable number of the community,

the use is public.” Jacobs v. Clearview Water Supply Co., 69 A.

870, 872 (Pa. 1908).

This Court has consistently rejected challenges to statutes

authorizing condemnations for uses deemed to served the public

* 1866 WL 927, *9. The Olmstead court further reasoned that “such a

limitation * * * of this important clause would be entirely different from its

accepted interpretation, and would prove as unfortunate as novel.” Endorsing

a dictionary definition of “use,” the court continued, “‘Public use’ may

therefore well mean public usefulness, utility or advantage, or what is

productive of general benefit,” a construction that had “uniformly been put

upon the language by courts, legislatures and legal authorities.” /d

—

15

interest. See, e.g, Head v. Amoskeag Mfg. Co., 113 U.S. 9, 17

(1885) (upholding New Hampshire statute authorizing mill

owner to flood upstream land upon payment of compensation,

as public use, and citing many such state laws); Mi

Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate

Power Co., 240 U.S. 30 (1916); Hairston v. Danville & W. R_R.

Co, 208 U.S. 598 (1908); Strickley v. Highland Boy Mining Co.,

200 U.S. 527 (1906).°

Without a single decision of this Court to point to in support

of their position, Petitioners (Br. 21-22 & nn. 18, 19) labor to

classify these decisions rejecting “public use” claims into

“categories” — and then argue that the allegedly defining features

of these “categories” are “specific limits” that the decision of the

Connecticut Supreme Court (and of the dissenting Justices, who

agreed with the majority on this point) ignored.

Even on its own terms, this endeavor is unpersuasive. In an

urban setting, a large, centrally located site can be no less a

publicly beneficial amenity than was a water mill or a railroad

in earlier times, and the “assembly” problems (Br. 21-22) posed

by owners who refuse to sell needed parcels are no less real.

Nor are the benefits at issue here more “indirect” or derivative

than in the case of grist mills, railroad or irrigation ditches. In

but rather depended on facilities first being built by private

parties — and then used, and then those uses actually producing

the desired positive spillover effects. See, e.g., Jacobs, 69 A.

at 872 (“It is the experience of most water companies that the

number of patrons at first is small. This is also true as to railroad

companies. They frequently exercise the right of eminent

* in Clark v. Nash, 198 U.S. 361 (1905), this Court rejected the claim

that a statute authorizing an “individual to condemn land for the purpose of

conveying water in ditches across his neighbor’s land, for the purpose of

irrigating his own land alone” was beyond the legislature’s powers. 198 U.S.

at 367. Although the only conceivable direct benefit was to the defendant

landowner, the only public benefit was unstated: interest in land being put to

productive use.

16

domain through great stretches of territory, where there may not

reside a single individual at the time to enjoy the public use; but

it has never been held that on this account the use was not a

public one.”).

Petitioners’ strained distinctions of Berman and Midkiff fare

no better. To be sure, “‘the analogy between a slum and a public

nuisance cannot be overlooked,’” Pet. Br. 24 n.22 (quoting

Allydon Realty v. Holyoke, 23 N.E.2d 665, 668 (Mass. 1939)) —

and this Court has recognized that “nuisance-like activity” has

a “special status” in takings law, Keystone Bituminous Coal

Ass'n v. DeBenedictis, 480 U.S. 470, 491 n.20 (1987). But its

“special” role ‘s not to demarcate the outer bound of “public

use.” On the contrary, nuisance abatement represents the

paradigm government purpose that justifies expropriation of

private property without compensation. See Lucas v. South

Carolina Caastal Council, 505 U.S. 1003, 1029 (1992). Even

more important, Berman expressly rejected the very “specific

limit” Petitioners would impose on that decision, emphasizing

that “[i]t is within the power of the legislature to determine that

the community should be beautiful as well as healthy, spacious

as well as clean, well-balanced as well as carefully patrolled.”

348 U.S. at 33 (emphasis added).

Likewise, Petitioners’ claim that the public benefits in

Midkiff were realized immediately upon completion of the

taking (Br. 26) is belied by the Court’s opinion, which (far from

requiring “certainty”) recognized that the Hawaii Act, “like any

other, may not be successful in achieving its intended goals.”

467 U.S. at 242. Indeed, in an important sense, the policy

pursued in that case and the one at issue here are two sides of

the same coin: in Midkiff, there were too few landowners; in

situations such as this one, the proliferation of landowners

makes eminent domain necessary; see Merrill, 72 CORNELL L.

REV. at 75-76 (explaining that holdout problem is akin to

monopoly); Hodel v. Irving, 481 U.S. 704, 712-13 (1987)

(“encouraging the consolidation of Indian lands is a public

<n nssesn

17

purpose of high order”). It would be an extraordinary and ill-

advised rule of constitutional law that made power to pursue a

policy depend on characterizing the object as combating the

“evil” (of fiscal distress or unemployment, or “oligopoly”) — or

securing the “benefit” of revitalizing a city, increasing tax

revenue, or distributing land more equitably. Cf Lucas, 503

U.S. at 1024 (“the distinction between ‘harm-preventing’ and

‘benefit-conferring’ regulation is often in the eye of the

beholder”); Hart, 109 HARV. L. REV at 1259 (some affirmative

use requirements were couched in terms of the community

benefit of active use, while others identified the “harm” of

“failure to develop”).

But whether or not any plausible distinction could be

extracted, Berman and Midkiff were emphatic that the rules they

were applying was not particular to the facts of the case: i.e. , that

power was not “specific and limited,” but “broad and inclusive,”

and that the narrow standards of judicial review — the familiar

axioms of federal judicial restraint - were generally applicable.

Il. More Stringent Federal Review of Eminent Domain Is

Neither Necessary Nor Appropriate

Claiming settled rules of judicial review are inadequate to

curb abuses of the eminent domain power and appealing to the

Constitution’s “plain language,” Petitioners and amici argue that

compensated takings for “private economic development”

should be subject to heightened scrutiny — and enjoined if a

court is unpersuaded of the “certainty” that public benefits will

materialize. These contentions are novel and meritless.

A. Working Class and Minority City Residents Would Not

Benefit From Constitutional Limits On Economic

Development For The Public Benefit

As an initial matter, the basic empirical premise of

Petitioners’ plea for an abrupt departure from traditional judicial

deference is unsupported. Without defending in any way the

errors and discriminatory outrages of numerous 1950s and 1960s

18

urban renewal projects, see infra — or minimizing the hardship

that displacement can cause, Amici strongly disagree with claims

that the benefits of urban economic development projects

inevitably flow toward the affluent and away from the people of

modest means. The governmental initiatives Petitioners blithely

denigrate are instead among the more important means of

addressing some of this Nation’s most intractable and pressing

social ills.

1. Petitioners’ bald assertion, Br. 17, that “the whole idea

behind economic development projects is replacing

lower-income residents with higher-income ones” is simply

false. The “idea” of many (but not all) projects is to promote

higher density uses — which can readily mean greater housing

opportunity for low-income people. See, e.g., Village of

Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S.

252 (1977); see also Cuyahoga Falls v. Buckeye Community

Found., 538 U.S. 188 (2003); City of Edmonds v. Oxford House,

Inc., 514 U.S. 725 (1995); Southern Burlington County NAACP

v. Mt. Laurel, 336 A.2d 713 (N.J. 1975).

For example, the site of the Brooklyn Atlantic Yards project,

which consists primarily of vacant and industrial land, currently

has approximately 160 units of residential housing, while the

proposed project will have some 4,000 units of housing, half of

which will be rented out at below-market rates and fully 800 of

which will be set aside for low-income individuals — with

guaranteed units for all displaced residents and preferences for

neighborhood residents.

As numerous judicial decisions attest, property owners often

resist such efforts, typically asserting a need to preserve the

“character” of the existing neighborhood — a rationale that not

infrequently masks hostility to those who would occupy the

housing. See Cleburne'v. Cleburne Living Center, Inc., 473

U.S. 432 (1985); see also AvalonBay Communities, Inc. v. Town

of Orange, 775 A.2d 284 (Conn. 2001) (affirming injunction

barring implementation of industrial park plan adopted as

19

pretext to thwart affordable housing development).

2. Development projects often bring sorely needed

employment opportunity to urban communities. The New

London project is expected to result in between (1) 518 and 867

construction jobs; (2) 718 and 1362 direct jobs; and (3) 500 and

940 indirect jobs; as previously noted, the Atlantic Yards project

would far exceed those numbers, with estimates of 10,000

permanent jobs and 15,000 construction jobs.

With the demise of manufacturing employment in

Northeastern cities, construction jobs provide the best and often

the only realistic opportunity to earn a living wage through blue-

collar work. In the area surrounding the Atlantic Yards site,

where unemployment rates are high, especially for African-

Americans and other members of minority groups. The benefits

of employment transcend wages paid, of course, since jobs are

a principal engine of virtually all forms of social stability. See

pp. 8-9, supra.

3. Projects bring substantial benefits to residents of

immediately affected and surrounding neighborhoods. In

sparsely populated areas where vacant land and unused

industrial buildings are replaced, the influx of larger numbers of

people can improve public safety, transportation, shopping

opportunities, and the quality of public services, including

public schools for the surrounding area, see R. KAHLENBERG,

ALL TOGETHER NOW: CREATING MIDDLE-CLASS SCHOOLS

THROUGH PUBLIC SCHOOL CHOICE (2002) (educational benefits

of mixed-income schools), and can be a catalyst for long-needed

environmental remediation.

4. Petitioners’ scorn for the benefit of increasing municipal

tax revenue is completely unwonted. See pp. 10-11 & n. 4,

supra. The services that such revenues provide are expended

overwhelmingly for the benefit of poor and middle-income

people: public hospitals, public transportation, public education,

services for homeless and people with AIDS, and affordable

housing initiatives. Broadening the tax base makes municipal

20

governments less vulnerable to vicissitudes in the business

cycles and permits them to keep tax rates low enough to attract

other employers. For all these reasons, many community

residents and activists — often including residents and owners of

directly affected property — support development projects, as do

many (but by no means all) of their elected representatives.

5. To be sure, there will be other long-time residents who

oppose the same projects — many based on an entirely sincere

preference for the existing character of the neighborhood. But

as Amici can attest, the ranks of project opponents are by no

means limited to long-time residents — and include new arrivals,

absentee property owners, and those who oppose the project for

ideological reasons or because the project’s success will

adversely affect their own commercial interests. It is a great

vice of Petitioners’ rule that a tiny minority of property owners

could overrule the majority of neighbors, and indeed that every

property owner (including a would-be developer whose

Opposition is a matter of narrow self-interest) able to persuade

a court that benefits were not “reasonably certain” would be

empowered to permanently enjoin a broadly supported project.

As developers and project opponents alike well know, delay and

uncertainty can defeat meritorious projects.

6. Amici do not — and could not — dispute the evidence that

racial animus was behind many 1950s and 1960s highway

construction and urban development projects, but we challenge

the assumption that that experience in any way supports

Petitioners’ legal argument. The notorious evidence set out in

the briefs of Petitioners’ amici did not arise in the context of

economic development condemnation, but rather in

condemnations effectuated for highway construction and under

blight designations — exercises of the eminent domain power

that, under Petitioners’ theory, raise no special concern and that

their proposed rules do not even purport to reach.’ Indeed, if

” Moreover, in the same jurisdictions where the eminent domain power

was perverted for racial purposes, so too were zoning, regulatory, and

OO Oe

21

there were any substance to Petitioners’ claims that economic

development projects are inevitably harmful, the rule they seek

here — one categorically limiting development to blighted areas

— would, by definition, intensify the extent of disproportionate

impact on poorer, predominantly minority communities.

7. Without glossing over this deplorable history or

underestimating the seriousness of present-day racial

discrimination and inequality, Amici believe it important to

acknowledge the many ways in which the world has changed

since — and often in response to — those notorious failures. The

federal statutes under which those public development projects

were pursued no longer exist, and the federal spending that

underwrote them has long vanished. Congress has enacted

statutes, e.g., 42 U.S.C. § 4622, that evince concern for the

problem of displacement.

Even if today’s government officials and administrators

were no more enlightened than their predecessors, urban politics

has changed fundamentally, because of demographic shifts and

the civil rights movement and the Voting Rights Act, meaning

that elected officials are far more accountable to poor and

minority constituents. Cf New York City Bd. of Estimate v.

Morris, 489 U.S. 688, 700 n.7 (1989) (invalidating rules that

gave Staten Island residents roughly six times as much

representation on governing body as Brooklynites).’ Perhaps

even more important, experience, sometimes bitter, has led

community residents and civic leaders to greater awareness of

spending powers — with similarly tragic efficacy. See Thompson v. HUD,

2005 WL 27533 (D. Md. 2005) (cataloguing long history of purposeful racial

discrimination in mortgage insurance and site selection).

§-Today * * * public-development officials operate in a far more

constrained environment ** * * And in the new world of urban-development

_ politics, the traditional build-and-grow coalition of government and business

can no longer control the process. Too many interest groups exist, and they

are able to gain power and voice, however temporary, by exercising

procedural rights of review and leveraging the political system. L. Sagalyn.

TIMES SQUARE ROULETTE 469 (2001).

22

and active engagement in land use decision-making.

B. Principles Supporting Restrained Judicial Review Apply

To “Public Use” Claims

The arguments of Petitioners and amici that the dangers of

“eminent domain abuse” require more searching judicial

scrutiny give short shrift to the principles underlying judicial

deference to the legislature. Indeed the dangers they identify do

not support — and in significant respects argue against — the rule

they ask the Court to impose. That rule, of course, would be

require a direct repudiation of many of this Court’s precedents.”

1. While Petitioners and amici repeatedly emphasize — likely

correctly — that homeowners suffer substantial uncompensated

costs from takings, see, e.g., Pet. Br. 1-2, 33-34, that complaint

argues for reconsideration of Just Compensation law, see

Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), not

the “public use” doctrine — and it does not remotely support a

rule of special scrutiny for “economic development” takings, as

* This Court has in terms rejected heightened judicial scrutiny for

privately executed development projects and any suggestion that a

“reasonable certainty” requirement be read into the Fifth Amendment.

Berman explained (348 U.S. at 33-34) that a legislature’s conclusion that a

“public end may * * * better served through an agency of private enterprise

than through a department of government” was not to be gainsaid, and

Midkiff explicitly disclaimed (467 U.S. at 242) interest in the likelihood or

“certainty” that the public benefit sought by the challenged law: “But

‘whether in fact the provisions will accomplish the objectives is not the

question: the [constitutional requirement] is satisfied if * * * the * * * [state]

Legislature rationally could have believed that [the law] would promote its

objective”) (quoting Western & S. Life Ins. Co. v. State Bd. of Equalization,

451 U.S. 648, 671-72 (1981)); see also National RR, 503 U.S. at 422

(Constitution is “satisfie{[d]” without “need [for] a specific factual

determination whether the condemnation will accomplish its objectives”);

Nebbia, 291 U.S. at 537 (“With the wisdom of the policy adopted, with the

adequacy or practicability of the law enacted to forward it, the courts are both

incompetent and unauthorized to deal”).

23

against all others. let alone a “reasonable certainty” requirement.

It is by no means self-evident why an older, longstanding

homeowner should or would feel less aggrieved by a

(presumably inadequate) compensation award if her home were

taken for some noncontroversial governmental use, such as a

sewage treatment plant, than if it were put to use for a

development project that sought large (but uncertain) benefits —

let alone that she would prefer a project that delivered small, but

demonstrable benefits. Petitioners’ rule — and the entitlement to

enjoin takings that do not meet the “reasonable certainty”

standard -- is not limited to homeowners (indeed, Petitioners

include a partnership that owns multiple parcels of property).'°

2. Likewise, although Petitioners and amici make broad

assertions about disproportionate burdens on people of modest

means and members of racial minority groups, buf see p. 10,

supra, there is no claim of racial discrimination or disparate

impact in this case, nor do the rules they seek limited to poor or

minority groups homeowners, nor would their rule, if adopted,

attach any significance to the racial distribution of benefits or

burdens of a given project. Compare, e.g. Alexander v.

Sandoval, 532 U.S. 275 (2001) (denying private right of action

under disparate impact regulations).

Petitioners and amici offer no explanation why the impact

alleged is specific to exercises of eminent domain for “economic

development” purposes, their submissions suggest the opposite

~and this Court’s cases make clear that such impacts are

not unique to the eminent domain power. See Washington

v. Davis, 426 U.S. 229, 248 (1976) (disparate impact standard

“would * * * perhaps invalidate, a whole range of tax,

welfare, public service, regulatory, and licensing statutes

that may be more burdensome to the poor and to the

average black than to the more affluent white”); see also

'° In the case of a longstanding resident who rents an apartment.

Petitioners’ rule leaves his landlord with unfettered discretion to sell to the

developer, “social costs” notwithstanding.

24

Sandoval, supra, Town of Huntington v. Huntington Branch,

NAACP, 488 U.S. 15 (1988) (mem.) (zoning limited minority

residents to urban renewal area); Chester Residents Concerned

for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997), vacated,

524 U.S. 974 (1998) (inequitable use of regulatory power to

issue environmental permits).

3. The dangers featured in the briefs on Petitioners’ side do

powers — to tax, spend, and regulate — that governments wield

biect only to traditional ined judicial review.

a. As this Court’s decisions make clear, deferential review

is not premised on the assumption that electorally accountable

officials necessarily make wise choices, see, e.g., Nordlinger v.

Hahn, 505 U.S. 1, 17-18 (1992) (“California’s grand experiment

appears to vest benefits in a broad, powerful, and entrenched

segment of society”), or even that they are especially likely to

correct poor choices, id (“ordinary democratic processes may be

unlikely to prompt [law’s] reconsideration or repeal”), or that

the harms imposed by exercises of those powers are

insubstantial. See, e.g, HUD v. Rucker, 535 U.S. 125 (2002)

(sustaining eviction of elderly public housing tenant); Hahn,

50S U.S. at 18 (noting arguments that challenged

measure“ frustrates the ‘American dream’ of home ownership for

many younger and poorer California families”).

b. Petitioners’ charges are less a case against “eminent

domain abuse” than a brief against the very notion of electorally

accountable local government. After all, governments intent on

benefitting the privileged — and indifferent to the interests of its

residents of modest means — could have the run of their taxing,

zoning, spending, and regulatory powers long before they would

need to consider eminent domain.

4. Eminent domain differs from these other powers in ways

that would tend to make its improvident exercise /ess likely.

First, although compensation may not extend to the full personal

costs of dislocation, see supra, the requirement that government

25

pay market-value for taken property provides both a substantial

means of mitigating individual burdens, see Armstrong, 364

U.S. at 49, and a substantial deterrent to actions that not are not

publicly beneficial (indeed, fiscal constraints prevent many

takings that would be beneficial).

5. Because condemnees are typically entitled to judicial

hearings, and because States afford procedural protections — and

impose legal constraints — substantially beyond those under

federal constitutional law, condemnations are more costly and

assume. See generally Merrill, 72 CORNELL L. REV. at 77-78

(explaining that “the decision whether to use eminent domain

should be, from an economic perspective, self-regulating”).

These costs are not the only or even the principal deterrents.

Experience confirms what theory would predict: the

concentrated and visible character of the burdens of eminent

domain — as against the diffuse and inchoate public benefits —

makes it easier to muster opposition (and controversy, adverse

publicity, and litigation) than support for even the most

C. Restrained Review Is Supported By the Text, Structure

and Original Intent of The Constitution

1. Claims that the “plain language” of the Fifth Amendment

calls out for stringent review suffer from a threshold difficulty:

the language of the Amendment does not suggest that “public

use” is intended as a substantive limitation on government

power. These arguments depend on reading the Fifth

Amendment as if it said“private property shall not be taken

[except] for public use [mor] without just compensation,” — and

then speculating as to what the Framers understood “public” and

“use” to mean. But the actual wording of the Amendment

suggest that “public use” is meant as a description of the

takings for which compensation must be paid, rather than an

independent, substantive limitation on governmental power.

2. Sc’, olarly review of the historical record suggests that this

26

natural reading is the originally intended one, i.e., that the

Framers did not intend the words “public use” in the Fifth

Amendment to operate as a substantive, judicially enforceable

limitation on the Legislature’s eminent domain power. See

Harrington, 53 HASTINGS L. J. at 1247 (“the idea that courts had

the power to supervise legislative expropriations would have

been unfamiliar to the members of the Congress who drafted the

so-called Takings Clause”); id at 1248 (concluding that “[i}n

using the term ‘public use’ in the Fifth Amendment, the drafters

* * * intended to distinguish a certain type of taking which

required compensation * * * from those which did not”); see

also Hart, 109 HARV. L. REV. at 1297 (“the history of colonial

land use legislation strongly supports the Court's controversial

conclusion that a state’s eminent domain power is essentially as

broad as its police power”)."’

3. So reading the Fifth Amendment does not mean that

“purely private takings” are constitutional or deprive “public

use” of independent significance. But it does make clear that

there is no warrant for breaking with precedent and imposing

a. Restrained review of “public use” claims does not detract

from what has long been identified as the core requirement and

primary purpose of the Clause: to mandate compensation so that

“some people alone [are not forced] to bear public burdens

which, in all fairness and justice, should be borne by the public

as a whole,” Armstrong v. United States, 364 U.S. 40, 49

(1960); Eastern Enterprises v. Apfel, 524 U.S. 498, 545 (1998)

(Kennedy, J., concurring in judgment) (“The [Takings}Clause

operates as a conditional limitation, permitting the government

to do what it wants so long as it pays the charge”); Brown v.

"'As Harrington explains, 53 HASTINGS L. J. at 1267-68, modem

assumptions that appropriation of property through legislatively authorized

eminent domain is irvoluntary does not take account of widespread

understanding that a property owner’s “representatives” were agents,

authorized to “consent” to a sale to “the public.” See id (giving examples

from Blackstone's Commentaries, John Locke, and early State Constitutions).

27

Legal Found, 538 U.S. 216, 235 (2003) (“The Fifth

Amendment does not proscribe the taking of property; it

proscribes taking without just compensation’) (citation

omitted) First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304, 314 (1987) (Clause was

“designed not to limit the governmental interference with

property rights per se, but rather to secure compensation in the

event of otherwise proper interference amounting to a taking”);

Chicago, B. & Q. Ry. v. Chicago, 166 U.S. 226, 236 (1897).

b. The Constitution does not permit “takings from A to give

to B,” in any event. This Court and others recognized that

legislatures are without power to effect purely private takings in

decisions rendered before the Fifth Amendment was

“incorporated” against the States, see, e.g. , Fallbrook Irrigation

Dist. v. Bradley, 164 U.S. 112, 158 (1896), arising under a state

constitution that had no compensation clause, Vanhorne’s

Lessee v. Dorrance,2 U.S. (2 Dall.) 304, 312 (C.C.D. Pa. 1795),

and construing the “public use” language as descriptive, rather

than proscriptive, see Baltimore & O.R.R. v. Van Ness, 2 F. Cas.

574, 576 (C.C.D.C. 1835) (No. 830)); see also Calder v. Bull,

3 U.S. (3 Dall.) 386, 388 (1798) (Chase, J.). See genercily J.

Rubenfeld, Usings, 102 Yale L. J. 1077 (1997).

c. As Professor Rubenfeld explains, this Court’s Takings

jurisprudence is broadly consistent with giving “public use” its

apparently intended meaning, ie. as a limitation on the

obligation to compensate, rather than on the power to take

compensation for certain governmental deprivations of property

often turn on the absence of “public use.” Compare United

States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952) (no

compensation for property deliberately destroyed by soldiers to

prevent its falling into the hands of opposing forces) with

Mitchell v. Harmony, 54 U.S. 115 (1852) and United States v.

Russell, 80 U.S. 623 (1871) (mem.) (compensation for property

used by soldiers). Compare also United States v. Pewee Coal

28

Co., 341 U.S. 114(1951) (compensation due when mine ordered

operated as war-time necessity) with United States v. Central

Eureka Mining Co., 357 U.S. 155 (1958) (no compensation for

owner whose mines were ordered closed, as wartime measure).

D. Considerations of Federalism Strongly Support Adherence

To Deferential Standards of Federal Constitutional Review

Petitioners’ assurances that the “sky will not fall.”

notwithstanding. embracing the rule they propose would have

far-reaching, adverse consequences.

1. Although Petitioners emphasize that only a small number

of States have adopted economic development condemnation

powers on all fours with Connecticut's, they overlook that fact’s

most obvious significance: it disproves the unrelenting

pessimism about the political process that permeates Petitioners’

submission. Contrary to the predictions of political and

economic theorists that economic development condemnations

are irresistible, most States have yet to find it necessary or wise

to confer the power at issue (let alone exercise it abusively).

Petitioners would deny the legislatures of those states the

freedom to decide whether to adopt such a rule.

2. Even more serious is the potential to alter the respective

roles of State and federal law — and State and federal courts — in

deciding “public use” disputes.

a. Federal court review has never been the primary

limitation on State eminent domain power. Until ratification of

the Fourteenth Amendment, the federal Constitution imposed no

limitation whatsoever on that power, and his and other federal

courts have a consistent record of rejecting “public-use” claims,

invoking principles of judicial restraint. See pp. 25-27, supra.

Accordingly, those concerned about reining in the eminent

domain power have looked to State courts and State Legislatures

for relief. There is no indication such pleas have gone unheard:

few States have granted the authority that Connecticut has, and

many State courts have read state constitutional limitations more

29

stringently than this Court has the Fifth Amendment.

b. Almost every “public use” decision discussed by

Petitioners and amici carried with it closely related, antecedent

questions of statutory law. Here, for example, Petitioners made

colorable claims that the Connecticut Legislature did not

authorize condemnation in the delegation to the NLDC; had the

courts ruled for them on those grounds, constitutional decision

would not have been necessary. See Aposporos v. Urban Redev.

Comm 'n, 790 A.2d 1167 (Conn. 2002) (reversing condemnation

on statutory grounds); Pequonnock Yacht Club, Inc. v. City of

Bridgeport, 790 A.2d 1178 (Conn. 2002). When decisions

adopt a broad or narrow understanding of legislative

authorization, they are subject to debate and revision (or

ratification) through the political process.

c. In such litigation, federal constitutional questions arise

only after myriad issues of State substantive, procedural,

administrative and constitutional law are resolved — all in favor

of the exercise of eminent domain. Even when the issue of

federal constitutionality is finally joined, matters of state law

play an unusually central role. What constitutes “property” is

primarily a question with State law, see Board of Regents v.

Roth, 408 U.S. 564, 577 (1972), and whether a compensable

“taking” has occurred and whether for a “public use” can

likewise be bound up with local law and local conditions. See

Lucas, 505 U.S. at 1016 n.7; Clark, 198 U.S. at 369 (“the people

of a state, as also its courts, must, in the nature of things, be

more familiar” with facts bearing on “public use” issue).

d. A rule that entitled every property owner to a

determination of “reasonable certainty” as a matter of federal

constitutional law would make federal court § 1983 suits the

first resort for property owners who oppose a particular project.

Indeed, because State law claims could not be basis for relief in

federal court, see Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 89, 106 (1984), plaintiffs would couch

their challenges in exclusively federal constitutional terms

30

E. Petitioners’ specific heightened scrutiny proposal, which

would read a “reasonable certainty” requirement for economic

development takings into the Fifth Amendment, is especially

unattractive. Such a rule is not even siigg¢sted by the

constitutional language. It is hard to see why an action taken for

the purpose of securing public benefits should fail if a federal

judge is unpersuaded — in disagreement with the responsible

government officials — of the “certainty” that the benefits sought

will accrue. See Keystone, 480 U.S. at 511 n.3 (Rehnquist, C.J.,

dissenting) (“[OJur inquiry into legislative purpose is not

intended as a license to judge the effectiveness of legislation”).

Judgments about the certainty of future benefits are precisely

the kind courts are least equipped to make, see, e.g., General

Motors Corp. v. Tracy, 519 U.S. 278, 308-09 (1997), and while

Petitioners do not spell out the proposed rule’s operation in any

detail, it is hard to see how it could not be biased against

projects with longer time horizons and in more marginal areas

— ie., those which are most needed and bring the greatest

benefits — and it would necessarily require (federal) courts, see

supra, to decide questions that are both value-laden and highly

technical. See Midkiff, 467 U.S. at 243 (courts are not the place

for “empirical debates over the wisdom of takings”).

To raise just the most obvious hypothetical: would the Fifth

Amendment authorize an injunction if a court found a project’s

future employment benefits genuine but its tax revenue

projections too uncertain? What if it found both to be

sufficiently “certain,” but of lesser magnitude than a city’s

estimates? Under such a regime, proceedings before State and

local bodies would invariably be consigned to the role of

rehearsal for the main event: a federal court battle of the experts.

Conclusion

The judgment of the Supreme Court of Connecticut should

be affirmed.

Respectfully submitted,

DAVID T. GOLDBERG

Counsel of record

99 Hudson Street, 8" fl.

New York, N.Y. 10013

(212) 334-8813

January 2005 |

SEAN H. DONAHUE

1477 A St., N.E.

Washington, D.C. 20002

(202) 544-4037