# Amicus Curiae Brief — Kelo v. New London

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0031%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 469

## Text

Supreme Court. US.
i FILED
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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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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
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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— “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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0031%3A19. Public record. Not legal advice.