Amicus Curiae Brief — Kelo v. New London

[ “Feo |

No. 04-108 | DEC 3 - 2004

OFFICE OF THE CLERK

Iu The

Supreme Court of the Anited States

S

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.

¢

mn On Writ Of Certiorari To The

Supreme Court Of Connecticut

.

BRIEF AMICUS CURIAE OF PROFESSORS

DAVID L. CALLIES, JAMES T. ELY, PAULA A.

FRANZESE, NICOLE STELLE GARNETT, JAMES E.

KRIER, DANIEL R. MANDELKER, JOHN

COPELAND NAGLE, JOHN NOLON, J.B. RUHL,

SHELLEY ROSS SAXER, A. DAN TARLOCK, LAURA

UNDERKUFFLER, AND EDWARD F. ZIEGLER

IN SUPPORT OF PETITIONERS

®

DavIp L. CALLIES* NICOLE STELLE GARNETT

Kudo Professor of Law Associate Professor of Law

WILLIAM S. RICHARDSON NOTRE DAME LAW SCHOOL

SCHOOL OF LAW Notre Dame, Indiana 46556

2515 Dole Street

Honolulu, Hawaii 96822

808-956-6550

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

I. The Division in the Lower Courts Reflects

Discomfort with the Total-Deference Approach

The Court Should Subject “Public Use” Claims

to Intermediate-Level Scrutiny

Rational Basis Review Is Inappropriate

The Court Should Resolve the Confusion in the

Lower Courts by Adopting Intermediate

Means-Ends Scrutiny in Public Use Cases

CONCLUSION

19

ii

TABLE OF AUTHORITIES

Page

CASES

99 Cents Only Stores v. Lancaster Redevelopment

Agency, 237 F. Supp. 2d 1123 (C.D. Cal. 2001)............. 12

Aaron v. Target Corp., 269 F. Supp. 2d 1162 (E.D.

Ble. BBB BD ncccccccccecessvcsscnssconisessssessanansaianniiannnanannnal 15

Agins v. Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65

FS FFL) ee 24

Allegheny Pittsburgh Coal v. County Commission,

488 U.S. 336, 109 S. Ct. 633, 102 L. Ed. 2d 688

(IDG BD .c.coccocscasscesccesssesecesentenenstiliiiennnnehaininnnininnnnnnnnnnnn 20

Bailey v. Myers, 206 Ariz. 224, 76 P.3d 898 (Ariz. Ct.

Basgtp. BGT .<ccccococescosccscosenseosessssessesnnnsansnanianiamnainnnaa 15

Beach-Courchesne v. City of Diamond Bar, 80 Cal.

App. 4th 388, 95 Cal. Rptr. 2d 265 (2000).................... 12

Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L.

BBG, BF (RBG O. .10cccccccscccccssscescnstansenstosnnemmuiasnaaaianal 7,16

Casino Reinvestment Development Authority v.

Banin, 320 N.J. Super. 342, 727 A.2d 102 (1998)......... 14

Cherokee Nation v. S. Kan. Railway Co., 135 U.S.

641, 10S. Ct. 965, 34 L. Ed. 295 (1890)... 25

City of Shreveport v. Chanse Gas Corp., 794 So. 2d

OGB Ga. Ob. Aga. BBB). cccccccscsssssnsnemesencesmennsnennmanan 8

City of Shreveport v. Shreve Town Corp., 314 F.3d

SBD GoeRe Cle, BBG ccccccccccccsccecusesccsscicnnsesceanisamaanaan 8

TABLE OF AUTHORITIES - Continued

City of Toledo v. Kim’s Auto & Truck Service, Inc.,

2003 WL 22390102 (Ohio Ct. App. Oct. 17, 2003)

a 10

City of Virginia Beach v. Christopoulos Family,

L.C., 2000 WL 33595021 (Va. Cir. Ct. Aug. 10,

2000) (unpublished decision)........................ccccceeeeeeseeees 14

County of Wayne v. Hathcock, 471 Mich. 445, 684

ET 6, 7, 26

Daniels v. The Area Plan Commission of Allen

County, 306 F.3d 445 (7th Cir. 2002)................ccccccceeees 11

Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct

2309, 129 L. Ed. 2d 304 (1994).................... 22, 24, 26, 27

FCC v. Beach Communications, 508 U.S. 307, 113

S. Ct. 2096, 124 L. Ed. 2d 211 (1993)......................0. 19

Friends of Mammoth v. Town of Mammoth Lakes

Redevelopment Agency, 82 Cal. App. 4th 511, 98

a ee 12

Ga. DOT v. Jasper County, 355 S.C. 631, 586 S.E.2d

sss rarersensnsssnssncencoces 15

General Building Contractors, L.L.C. v. Board of

Shawnee County Commissioners of Shawnee

County, 275 Kan. 525, 66 P.3d 873 (2003) ..................... 8

Hawai Housing Authority v. Midkiff, 467 U.S. 229

cari atnatndntnencsenenennnsnseneneey passim

In re West 41 Street Realty LLC v. New York State

Urban Development Corporation, 298 A.D.2d 1,

cc 9

iv

TABLE OF AUTHORITIES — Continued

Page

J.C. Penney Corp. v. Carousel Center Co., 306 F.

Supp. 2d 274 (N.D.N.Y. 2004) ..........ccccccccsesesceceeseeeeeeeneees 8

Kelo v. City of New London, 268 Conn. 1, 843 A.2d

Se CTTTTT acoscncetiihiniecaiehiencataeihitaidnatababaaeaatianiinseminielaaaieidlia 2, 4, 6, 7

Minneapolis» Community Development Agency

(MCDA) v. OPUS Northwest, LLC, 582 N.W.2d

I Sei cornenscnsiennssiansaneiidadpadinainaitiniaasittiasiieatiaiasi 9

Nollan v. South Carolina Coastal Council, 483 U.S.

825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987)......... passim

Nordlinger v. Hahn, 505 U.S. 1, 112 S. Ct. 2326,

SE Cite Cy Ce EE cenccsescctnmacttionennnnneninniinnss 20, 21

Poletown Neighborhood Council v. City of Detroit,

410 Mich. 616, 304 N.W.2d 455 (1981)... 6

Richardson v. City and County of Honolulu, 124

BS SEED GE Cae, SGD ccrnccecccensscssnsccsscscessssmnecnsseesseves 27

Southwestern Illinois Development Authority v.

National City Environmental, L.L.C., 199 Ill. 2d

— SE oe 13

Vitucci v. New York School Construction Authority,

289 A.D.2d 479, 735 N.Y.S.2d 560 (2001)..............00000. 10

Wheeling Steel v. Glander, 337 U.S.

562, 69 S. Ct. 1291, 93 L. Ed. 1544 (1949).............. 20, 21

FEDERAL STATUTES AND RULES

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

6 Nichols on Eminent Domain § 24.05[1] (2004)........ 19, 25

Cass Sunstein, Lochner’s Legacy, 87 Colum. L. Rev.

es Cee IE canrscccenseninnmnicesdontinmsnsnindinneninninimninees 5,

Declaration of Taking Act, ch. 307, 46 Stat. 1421

Fea cnieunteensectntemeneemnenmnnctnnenntsesinmenniemmntnememmmnmen

INSTITUTE ON TAXATION AND ECONOMIC POLICY,

MINDING THE CANDY STORE: STATE AUDITS OF

ECONOMIC DEVELOPMENT 35-41 ..............ccccsecceseeeeeeeeees

James W. Ely, Jr., Can the Despotic Power be

Tamed? Reconsidering the Public Use Limitation

on Eminent Domain, A.B.A. Prob.& Prop. (Nov/

BD Se eccincecesnsusnenssrecsdsentininnnctiempinenmitintrinmenenen

Nicole Stelle Garnett, The Public Use Question as a

Takings Problem, 71 Geo. Wash. L. Rev. 934, 939

SET ncteshshaehitnsttepiichitbeettainieaiisenesiihaieatiatinlehdunialteiteitanaiaiidediiauepenaees

Richard A. Epstein, Takings: Private Property and

the Power of Eminent Domain 162-81 (1985) ...............

Thomas W. Merrill, The Economics of Public Use,

72 Cornell L. Rev. 61, 70 (1986) ...........cccccccceseseeeeeerereees

Thomas W. Merrill, Rent Seeking and the

Compensation Principle, 80 N.W. L. Rev. 1561,

ee cccntunescnnnepenninnniinniiemeseninmmmeininerenen

1

INTEREST OF THE AMICI CURIAE

David L. Callies is the Benjamin A. Kudo Professor of

Law at the University of Hawaii’s William S. Richardson

School of Law. Professor Callies is one of the nation’s

recognized authorities on the law of land use and prop-

erty. Nicole Stelle Garnett teaches land use and property

law at Notre Dame Law School. The following law profes-

sors who teach and write on the subjects of property and

land use join Professors Callies and Garnett in asking the

Court to apply an intermediate standard of review in

deciding the sufficiency of public use in eminent domain

cases, reversing the Connecticut Supreme Court in Kelo v.

City of New London: James T. Ely, Vanderbilt University;

Paula A, Franzese, Seton Hall University; James E. Krier,

University of Michigan Law School; Daniel R. Mandelker,

Washington University School of Law; John Copeland

Nagle, Notre Dame Law School; John Nolon, Pace Univer-

sity; J.B. Ruhl, Florida State University; Shelley Ross

Saxer, Pepperdine University; A.Dan Tarlock, Chicago-

Kent College of Law; Laura Underkuffler, Duke Univer-

sity; Edward F. Ziegler, University of Denver.

+

STATEMENT OF THE CASE

The Petitioners all own homes or rental properties in

the Fort Trumbull neighborhood of Respondent City of

New London, Connecticut. In 1998, New London approved

* Counsel for the parties did not author this brief in whole or in

part. All parties have consented to the filing of this brief. Copies of the

consent are filed with the Clerk. Jeff Kumer, who is not a party to the

case, provided a contribution towards the printing and submission of

2

a redevelopment plan that enabled Respondent, New London

Development Corporation to condemn Petitioners’ lots and

lease the condemned property to a private commercial

developer. New London made no finding that the Petitioner’s

property was crime-ridden or otherwise “blighted” as re-

quired by Connecticut’s slum-renewal laws, chapter 130 of

Connecticut’s statutory code, see Conn. Gen. Stat. Ann. §§ 8-

124 to -69w (West 2001 & 2004 Supp.). Instead, Respondents

invoked the authority of chapter 132 of Connecticut’s statu-

tory code, the municipal-development chapter. See Conn.

Gen. Stat. Ann. §§ 8-186 to -200b (West 2001 & 2004 Supp.).

That chapter gives local development agencies broad powers

to “acquire by eminent domain real property” whenever cities

allow them to do so. Id. § 193(a). Respondents’ only justifica-

tion for condemning Petitioners’ land was — and remains —

that it would be economically advantageous for New London

to redistribute their land to private developers. The city

council found that transferring the title of Petitioners’

property to a private developer would create jobs, increase

tax revenues, and encourage economic growth throughout

New London. See Kelo, 843 A.2d at 508-11.

Petitioners sued, alleging that New London had taken

their properties for a private use, in violation of public use

limitation of the Fifth Amendment, which states, “[Nlor

shall property be taken for public use....” U.S. Const.

amend. V. Petitioners asserted that the speculative eco-

nomic benefits to be gained by upscaling a neighborhood

do not count as “public uses” and that there can be no public

use when “private parties retain control over the parcels’

use.” Kelo, 813 A.2d at 519. The Connecticut Supreme Court

(“the court below”) rejected Petitioners’ claims. The court

held that the public use limitation should be given a “pur-

posive formulation” and that legislative declarations of

3

public use should be granted broad deference. Jd. at 523.

Specifically, it concluded,

“Public use” may therefore well mean public use-

fulness, utility or advantage, or what is produc-

tive of general benefit; so that any appropriating

of private property by the state under its right of

eminent domain for purposes of great advantage

to the community, is a taking for public use.

Id. at 522 (italics removed). This Court granted certiorari.

¢

SUMMARY OF THE ARGUMENT

The Connecticut Supreme Court’s decision was in

keeping with Hawai Housing Authority v. Midkiff, 467

U.S. 229 (1984), which provides that legislative assertions

of public use should be subjected to rational basis review.

The application of such broadly deferential review in

public use cases is inappropriate. Application of rational

basis review to the exercise of eminent domain in cases

such as this effectively eviscerates the Fifth Amendment’s

public use limitation. Moreover, lower courts’ responses to

the exponential increase in the use of eminent domain for

generalized “economic development” has resulted in a

hodgepodge of decisions variously upholding and striking

down such condemnations on similar facts. These cases

make clear that many state courts are uncomfortable with

granting governmental entities carte blanche authority to

condemn property for speculative “economic development”

projects.

This case offers the Court an important opportunity to

revisit the application of rational basis review in public use

cases and to articulate a more appropriate intermediate

4

standard of review that will reinvigorate the protections

guaranteed by the Fifth Amendment’s Takings Clause. An

appropriate standard would protect the prerogatives of

legislatures to establish the appropriate ends of govern-

ment action (e.g., to decide that certain areas of New London,

Connecticut should be redeveloped). It would merely require

that a government justify a decision to resort to eminent

domain as the means of achieving those goals.

¢

ARGUMENT

In Kelo v. City of New London, 268 Conn. 1, 843 A.2d

500 (2004), the City condemned unblighted, economically

viable residential lots for private commercial development

as part of a plan for the “economic revitalization” of a

similarly unblighted area. See Id. at 26-54, 843 A.2d at

519-536. These condemnations were upheld below under

this Court’s broadly-stated rational review standard for

public use as articulated in Hawaii Housing Authority v.

Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186

(1984). See Kelo, 268 Conn. at 28, 843 A.2d at 520. Applica-

tion of rational basis review to the exercise of eminent

domain in cases such as this one effectively eviscerates the

Fifth Amendment’s public use limitation. Moreover, lower

courts’ responses to the exponential increase in the use of

eminent domain for generalized “economic development”

has resulted in a hodgepodge of decisions variously

upholding and striking down such condemnations on

similar facts. In revisiting its jurisprudence on public

use, this Court needs to either expand on its existing

rational basis review standard or to provide a different,

intermediate standard o: review so as to reinvigorate the

5

protections guaranteed by the Fifth Amendifient’s Takings

Clause.

I. The Division in the Lower Courts Reflects

Discomfort with the Total-Deference Approach

to Eminent Domain

Under current federal standards, courts could approve

virtually every exercise of eminent domain. True, the

Court has never suggested that the government has

limitless power to take property by eminent domain. As

Justice O’Connor observed in Midkiff, 467 U.S. at 239,

“[t]here is, of course, a role for courts to play in reviewing

a legislature’s judgment of what constitutes a public use.”

The Court concluded in Berman v. Parker, 348 U.S. 26, 32,

75 S. Ct. 98, 99 L. Ed. 27 (1954), and again in Midkiff, 467

U.S. at 240, that a court’s role “is an extremely narrow

one.” Specifically, the Court indicated that an exercise of

eminent domain was subject to rational basis review. See

Midkiff, 467 U.S. at 241 (citations omitted); Berman, 248

U.S. at 26. That is, an exercise of the eminent domain

power will not be invalidated so long as it is “rationally

related to a conceivable purpose” or “palpably without

reasonable foundation.” Midkiff, 467 U.S. at 241 (citations

omitted). The application of rational basis scrutiny effec-

tively renders the public use limitation meaningless

because there is always some conceivable justification for

condemning property. See Cass Sunstein, Lochner’s Leg-

acy, 87 Colum. L. Rev. 873, 891 (1987) (“[I]t is said that the

public use requirement has been rendered effectively

unenforceable”). For example, if rational basis review

governs, courts should always approve the taking of

property for “economic development.” Surely such

takings might serve some conceivable public purpose, no

6

matter how speculative. See Midkiff, 467 U.S. at 241

(citations omitted).

Interestingly, lower courts purporting to apply ra-

tional basis review sometimes find a taking irrational.

Other courts interpret state public use provisions to

require heightened scrutiny. This resistance to the appli-

cation of rational basis review in public use cases suggests

profound discomfort with the logic of the Midkiff decision.

It also renders the application of public use provisions

random at best. The two most recent state supreme court

decisions, reaching opposite conclusions on similar facts,

are simply the most recent examples.

The Michigan Supreme Court recently overruled its

earlier Poletown case, see Poletown Neighborhood Council

v. City of Detroit, 410 Mich. 616, 304 N.W.2d 455 (1981), in

County of Wayne v. Hathcock, 471 Mich. 445, 684 N.W.2d

765 (2004), holding that a generalized economic benefit to

the public was not a public use “simply because one

__entity’s profit maximization contributed to the health of

the general economy.” Jd. at 481, 684 N.W.2d at 786.

Indeed, the court took great pains to strike at the heart of

the Poletown opinion holding that “Poletown’s conception

of a public use — that of alleviating unemployment and

revitalizing the economic base of the community -- has no

support in the Court’s eminent domain jurisprudence. . . .”

Id. at 482, 684 N.W.2¢ at 787 (footnote omitted). There-

fore, the condemnation of nonblighted land for an airport

technology park for economic development purposes was

unconstitutional. Jd.

Hathcock is in stark contrast to the Connecticut

Supreme Court’s recent decision in Kelo. There, the court

concluded that construction of commercial and residential

7

development associated with a nearby global research

facility in order to create jobs and increase taxes and other

revenues in New London was sufficient public use to justify

the condemnation of several residences on the project site:

“We conclude that economic development projects created

and implemented [pursuant to statutory authority] that have

the public economic benefits of creating new jobs, increasing

tax and other revenues, and centributing to urban revitaliza-

tion, satisfy the public use clauses of the state and federal

constitution.” Kelo, 268 Conn. at 26, 843 A.2d at 520. Al-

though the two state supreme courts came to different

conclusions on adequacy of public use, both condemnations

would probably pass constitutional muster under the re-

laxed, deferential rational basis standard of review which

this Court used in Midkiff. See Midkiff, 467 U.S. at 241

(citations omitted). Neither is “impossible” or “palpably

without reasonable foundation.” Jd. But surely this Court

could not have envisioned, let alone predicted, the extent to

which state and local governments would stretch the limits

of Berman and Midkiff to find a public use in the mere

economic revitalization (read “upgrading”) of perfectly viable

stand-alone residential neighborhoods and businesses. In

both Kelo and Hathcock, the project area is blight-free. See

Kelo, 268 Conn. at 26, 843 A.2d at 520; Hathcock, 471 Mich.

at 499, 684 N.W.2d at 796. The condemned parcels do not

represent islands of viable use in a sea of blight, as in Ber-

man. See Berman, 348 U.S. at 35.

While the Hathcock and Kelo opinions represent polar

extremes on sufficiency of public use to support condemna-

tion for te purpose of economic revitalization, there are

other egregious examples.

The remainder of this Part provides summaries of

cases illustrating the division in the lower courts. State

8

and federal courts (applying state law) have found suffi-

cient public use in:

J.C. Penney Corp>v. Carousel Center Co., 306 F. Supp.

2d 274 (N.D.N.Y. 2004). The court held that Syracuse

Industrial Development Agency’s condemnation of plain-

tiff’s lease in a shopping center in order for the shopping

center’s owner to redevelop the shopping center was not

merely for private use, because “advancing the general

prosperity and economic welfare of both the residents of

the City and the general population of the State, promot-

ing tourism and attracting visitors from outside the

economic development region, promoting employment in

the City, and increasing the tax base as well as tax reve-

nues” was for a public use. Jd. at 280.

City’ of Shreveport v. Shreve Town Corp., 314 F.3d '229

(5th Cir. 2002). The court held that the City of Shreve-

port’s condemnation of Shreve Town Corporation’s lot for

the purpose of building a parking lot for a new convention

center showed a public purpose, as “the public purpose

requirement was satisfied because the expropriation

resulted in an economic benefit to the community.” Jd. at

234 (citing City of Shreveport v. Chanse Gas Corp., 794 So.

2d 962, 973 (La. Ct. App. 2001)>.

General Building Contractors, L.L.C., v. Board of

Shawnee County Commissioners of Shawnee County, 275

Kan. 525, 66 P.3d 873 (2003). County filed eminent domain

petition to attract economic development by establishing

an industrial park. Jd. at 526, 66 P.3d at 875. GBC’s

business sold services or products outside the traditional

market area of county, but county wanted employers who

would bring in new dollars, jobs, and demand for services.

Id. at 528, 66 P.3d at 876. GBC’s property was slated for a

9

new building and county knew a major employer would

require control of adjoining property. Jd. The court held

that public purpose, public use, and public welfare, are all

terms that must be broad and inclusive. Id. at 540, 66 P.3d

at 883 The fact that the possibility for a private party to

make a profit exists does not divest the act of its public use

and purpose. Id.

Minneapolis Community Development Agency (MCDA)

v. OPUS Northwest, LLC, 582 N.W.2d 596 (Minn. 1998).

Opus owned the parcels to be condemned and bid on the

Minneapolis Community Development’s project. Jd. at 598.

City wanted to put a mid-priced retail store, parking com-

plex, extended skyway access, and office building in the area

so it contracted with Ryan Corp for the development and

eventual ownership of project. Jd. Retail store would be

owned and operated by Dayton Hudson, which would place a

Target in the building. Jd. Opus’s bid was rejected in spite of

it offering to build a $120 million office building without

government subsidies because Opus could not secure a mid-

priced retailer. Id. The Court’s review of condemnation is

very narrow and heightened scrutiny for a condemnation

that benefits private interests was “out of touch with the

national trend.” Id. at 599 (citation omitted). Condemnation

to create jobs and improve tax base have sufficient public

purpose. Jd. (citation omitted).

In re West 41 Street Realty LLC v. New York State

Urban Development Corporation, 298 A.D.2d 1, 744

N.Y.S-2d 121 (2002). Six property owners challenged the

condemnation of land across Eighth Ave. from the Port

Authority Bus Terminal because the benefit inured to

the New York Times (plan was to build a high rise for a

new Times headquarters, provide an additional 700,000

sq. ft. of office space for other tenants, build condos, new

10

subway entrance, 350-seat auditorium, gallery and retail

space). Jd. at 3, 744 N.Y.S.2d at 123. The court held that

public use only requires “an evident utility on the part of the

public” and the public benefit is broadly defined. Jd. at 6, 744

N.Y.S.2d at 125 (quoting Bloodgood v Mohawk & Hudson

R.R., 18 Wend. 9, 14 (N.Y. 1837). So long as the project is

rationally related to a conceivable purpose, it is constitu-

tional. Id. at 6, 744 N.Y.S.2d at 125 (citations omitted).

Vitucci v. New York School Construction Authority, 289

A.D.2d 479, 735 N.Y.S.2d 560 (2001). Landowner’s truck

repair and selling business was condemned for the construc-

tion of a new school. Jd. The school was not built and the

defendants determined that the area would benefit from the

creation of an urban renewal project. Jd. It chose to expand a

neighboring food production business. Jd. Court explained

that public use and public purpose are broadly defined as

encompassing virtually any project that may further the

public benefit, utility, or advantage. Id. at 480, 735 N.Y.S.2d

at 562 (citing 51 N.Y. Jur. 2d Eminent Domain § 22 (2003)).

“If a municipality determines that a new business may

create jobs, provide infrastructure, and stimulate the local

economy, those are legitimate public purposes which justify

the use of the power of eminent domain.” Jd. at 481, 735

N.Y.S.2d at 562 (citing Sunrise Props. v. Jamestown Urban

Renewal Agency, 206 A.D.2d 913, 614 N.Y.S.2d 841 (1994)).

City of Toledo v. Kim’s Auto & Truck Service, Inc.,

2003 WL 22390102 (Ohio Ct. App. Oct. 17, 2003) (unpub-

lished decision). City wished to attract a new Jeep plant so

City Council directed Planning Commission to develop an

urban renewal plan to alleviate slum and blight conditions

and allow for economic development. /d. at *1. Appellant’s

automobile service station was in the urban renewal area.

Id. Appellant argued the City manipulated the blight by

11

purchasing lots and allowing lots to deteriorate and be

stripped by vandals, and that the land was taken to

benefit a private corporation, not the public, and the Jeep

plant resulted in a new loss of 800 jobs and its tax abate-

ment resulted in loss of tax revenue. Jd. at *2. Judicial

review of a municipality’s determination to taken land is

limited; if it is rationally related to a conceivable public

purpose the taking is allowed. /d. at *4 (citing Midkiff, 467

U.S. at 241). In Ohio “public use” should be read as syn-

onymous with “public welfare.” Toledo, 2003 WL 22390102

at *4. Appellant contended that the public benefit here

was incidental due to the loss of taxes and jobs. Jd. “How-

ever, appellee apparently determined that, despite these

losses, keeping the Jeep manufacturing jobs in Toledo and

eliminating blight in the neighborhood was conducive to

the public welfare.” Id. “Necessary” includes what is

reasonably convenient or useful to the public. Jd. at *5.

On the other hand, state and federal courts (applying

state law) have found public use wanting in:

Daniels v. The Area Plan Commission of Allen County,

306 F.3d 445 (7th Cir. 2002). The court held that the

defendant Area Plan Commission of Allen County’s vaca-

tion of plaintiff landowner’s restrictive covenant (which

limited the uses in the area to single family dwellings), so

that a developer could build commercial establishments in

the area and incidentally remove vacant houses, did not

show a “public use,” because (1) mere economic redevel-

opment was deemed insufficient by the Indiana legislature

and (2) the developer was not bound to build anything that

would benefit the public, therefore rendering the purpose

of the vacation private. Jd. at 465.

12

99 Cents Only Store v. Lancaster Redevelopment

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

held that the City of Lancaster and the Lancaster Rede-

velopment Agency's (“Lancaster’s”) condemnation of a

store in order to accommodate an adjacent store’s, Costco,

expansion did not evidence a public purpose, since “the

only reason fLancaster] enacted the Resolutions of Neces-

sity was to satisfy the private expansion demands of

Costco|,]” id. at 1129, and the prevention “future blight”

thereby is not a valid public purpose, as it is unsupported

by any authority or factual findings, id. at 1130.

Beach-Courchesne v. City of Diamond Bar, 80 Cal.

App. 4th 388, 95 Cal. Rptr. 2d 265 (2000). Lack of evidence

that a redevelopment project area was blighted required

invalidation of redevelopment plans. Jd. at 391, 95 Cal.

Rptr. 2d at 268. Redevelopment area was an affluent

suburb with high median income, mid-high home values,

and low crime. Id. at 392, 95 Cal. Rptr. 2d at 268. How-

ever, City’s general plan explained that retail commercial

uses generated “significantly more municipal revenues as

compared to costs.” Jd. The court held that there was

insufficient evidence of blight, potential blight was not

sufficient, the entire record failed to connect any alleged

blight to the proposed remediation, mere generalities in

the City’s finding were not taken at face value. Jd. at 403,

95 Cal. Rptr. 2d at 276. “The CRL is not simply a vehicle

for cash-strapped municipalities to finance community

improvements.” Jd. at 407, 95 Cal. Rptr. 2d at 279.

Friends of Mammoth v. Town of Mammoth Lakes

Redevelopment Agency, 82 Cal. App. 4th 511, 98 Cal. Rptr.

2d 334 (2000). The court overturned trial court’s determi-

nation that the administrative record supported Town’s

finding that the Project Area was blighted. Jd. at 521, 98

13

Cal. Rptr. 2d at 339. “The touchstone of redevelopment is

the elimination of blight on developed lands, not the

instigation of economic development on forested lands.” Jd.

at 544, 98 Cal. Rptr. 2d at 355. Just because an area could

be more profitable if redesigned Joes not mean it suffi-

ciently prevents economically viable use. Jd. at 555, 98

Cal. Rptr. 2d at 362.

Southwestern Illinois Development Authority v. Na-

tional City Environmental, L.L.C., 199 Ill. 2d 225, 768

N.E.2d 1 (2002). On a rehearing from previous order in

favor of the Southwestern Illinois Development Authority

(“SWIDA”), court held that SWIDA did not have the

authority to take property from NCE and convey it to

Gateway -International Motorsports (“Gateway”). Id. at

242, 768 N.E.2d at 11. Gateway had a successful car

racetrack, needed more parking space, and asked SWIDA

to condemn neighboring land. Jd. at 228, 768 N.E.2d at 4.

Neighboring landowner NCE had been at that location

since 1975 and employed 80 to 100 people. Jd. at 229, 768

N.E.2d at 4.

SWIDA argued the public purpose served via the

condemnation was threefold (condemnation would foster

economic development, promote public safety, and prevent

or eliminate blight) and that any distinction between

public purpose and public use has evaporated. Court held

the terms were not indistinguishable. Jd. at 237, 768

N.E.2d at 8. The court was not persuaded that the con-

demnation would serve a sufficient public use even though

and pedestrian access to the track safer. Jd. at 239, 768

N.E.2d at 10. Economic growth from an increase in Gate-

way'’s business was not a public use. Jd. The court weighed

the benefit to the public derived from the taking acainst

14

Gateway’s benefit, and held that the “condemnation

clearly was intended to assist Gateway in accomplishing

their goal in a swift, economical, and profitable manner.”

Id. at 240 10.

Casino Reinvestment Development Authority v. Banin,

320 N.J. Super. 342, 727 A.2d 102 (1998). Property owners

argued the primary purpose of the condemnation was to

achieve a private benefit. Jd. at 344, 727 A.2d at 103.

Trump proposed a $28.6 million hotel redevelopment

project and requested that the Casino Reinvestment

Development Authority (““CRDA”) use eminent domain

powers to acquire parcels Trump had not been able to

acquire independently. Jd. at 348, 727 A.2d at 106. These

parcels had homes and businesses on them. Jd. Court held

CRDA acquired the property to allow Trump to use it for

any purpose so long as it fits within the definition of “hotel

development project and appurtenant facilities.” Id. at

349, 727 A.2d at 106. This was analogous to giving Trump

a blank check with respect to future development on the

property for casino hotel purposes. Jd. at 358, 727 A.2d at

111. a

City of Virginia Beach v. Christopoulos Family, L.C.,

2000 WL 33595021 (Va. Cir. Ct. Aug. 10, 2000) (unpub-

lished decision). City sought to condemn Family's preperty

to build a parking garage. Jd. at *1. City had contracted

with a developer to build a four-star hotel and accompany-

ing park and the garage was needed because of that

development. Jd. Family argued that this use of eminent

domain power too greatly benefited private development.

Id. at *2. The court held that the contract divested the

City of control over “the terms and manner of enjoyment

... independent of the rights of the private owner appro-

priated to the use” and the developer’s use of the property

15

exceeded incidental benefit because the developer could

dictate how the City was to exercise its power over a

public parking garage. Id. at *10.

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

(E.D. Mo. 2003) (federal court found federal jurisdiction,

then granted temporary restraining order against con-

demnation, which was based on an improper finding of

blight and lacked public use); Bailey v. Myers, 206 Ariz.

224, 76 P.3d 898 (Ariz. Ct. App. 2003) (condemnation of

brake shop for hardware store for purposes of economic

development lacked public use); Ga. DOT v. Jasper

County, 355 S.C. 631, 586 S.E.2d 853 (2003) (condemna-

tion for private marine terminal that would provide

significant local economic benefit not for public use).

So state courts (or federal courts applying state law)

have thus found such condemnations void for lack of

adequate public use in Arizona, California, Georgia,

Illinois, Indiana, Michigan, Missouri, New Jersey and

Virginia; other courts in Connecticut, Kansas, Louisiana,

Ohio, Minnesota and New York have upheld such condem-

nations for general economic revitalization purposes on

similar facts.

Il. The Court Should Subject “Public Use” Claims

to Intermediate-Level Scrutiny

As the foregoing examples illustrate, rational basis

review as presently conducted by state courts (and federal

courts applying state standards) leads to conflicting

results, often upholding the exercise of eminent domain for

16

a vaguely-articulated public use the benefits of which

accrue most specifically and directly to private owners.

Courts should — and a few do — examine cases with more

care than the rational basis test suggests. See Midkiff, 467

U.S. at 241 (citations omitted). This Court should either

reinterpret or explain its rational basis test in a way that

forecloses the use of eminent domain for the all-but-

impossible public uses illustrated in the previous section

or direct that courts instead undertake some sort of

intermediate scrutiny beyond rational basis, as the Court

has done with respect to land development conditions in

Nollan v. South Carolina Coastal Council, 483 U.S. 825,

107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) and Dolan v. City

of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304

(1994).

The Court’s application of rational basis scrutiny to

“public use” claims flows naturally from its conclusion in

Berman that the eminent domain power is coterminous

with the police power. See Berman, 348 U.S. at 31 (“We

deal, in other words, with what has traditionally been

known as the police power.”); see also Midkiff, 467 U.S. at

240 (“The ‘public use’ requirement is thus coterminous

with the scope of a sovereign’s police powers.”) Having

made this conclusion, the Court concluded without diffi-

culty that an exercise of eminent domain is merely one

possible means to achieve the entire range of permissible

governmental ends. See Berman, 348 U.S. at 32 (“Once the

object is within the authority of Congress, the right to

realize it through the exercise of eminent domain is clear.

For the power of eminent domain is merely the means to

the end.”); accord, Midkiff, 467 U.S. at 240 (quoting

Berman).

17

This conclusion is flawed as a matter of both history

and logic. First, there is widespread agreement across the

academic spectrum that the public use clause was in-

tended to delimit a range of acceptable “ends” that could

be achieved through an exercise of eminent domain. See,

e.g., Nicole Stelle Garnett, The Public Use Question as a

Takings Problem, 71 Geo. Wash. L. Rev. 934, 939 (2003)

(surveying literature); Richard A. Epstein, Takings:

Private Property and the Power of Eminent Domain 162-81

(1985) (arguing that the Fifth Amendment’s Takings

Clause was designed to enable the government to condemn

land for public uses, not to seize land to advance the

broadly defined public interest.); Thomas W. Merrill, Rent

Seeking and the Compensation Principle, 80 N.W. L. Rev.

1561, 1569 (1986) (“The Supreme Court has largely aban-

doned the requirement that the power of eminent domain

be devoted to public rather than private ends.”); Cass

Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873, 891

(1987) (“The public use requirement traditionally meant

that property had actually to be used by the public. But

gradually the requirement was expaiided to refer to any

plausible justification”). See also Brief of Claremont

Institute Center for Constitutional Jurisprudence, Kelo v.

City of New London (No. 04-108) (surveying early cases

interpreting the public use limitation).

Even assuming that the departure from this narrower

interpretation of the ends which can be achieved through

the exercise of eminent domain is water under the consti-

tutional bridge, it is illogical to state that the eminent

domain power and police powers are coterminous. See

Midkiff, 467 U.S. at 240. As Professor Merrill has ob-

served:

a eS ee

I SE ae

18

This pronouncement has dismayed commenta-

tors because the outer limit of the police power

has traditionally marked the line between non-

compensable regulation and compensable takings

of property. . .. Legitimately exercised, the police

power requires no compensation. Thus, if public

use is truly coterminous with the police power, a

state could freely choose between compensation

and noncompensation anytime its actions served

a ‘public use.’ This approach would seemingly

overrule the entire takings doctrine in a single

stroke.

Thomas W. Merrill, The Economics of Public Use, 72

Cornell L. Rev. 61, 70 (1986). This obvious distinction

between the police power and the eminent domain power

undercuts the rationale for applying rational basis review

in the public use context. “Hands-off” rational basis

scrutiny generally is justified by the need to guarantee

that the legislature, not the courts, determines which

policies to pursue. See Midkiff, 467 U.S. at 242-243. But,

judicial scrutiny of the exercise of eminent domain would

not limit the range of policies that a government may

pursue. Rather, a more searching inquiry in public use

cases would merely serve to draw a line — a line that

logically must exist — between two permissible means of

achieving the broad set of government ends authorized by

the police power. As Professor Merrill observes, judicial

review of the ends of government action requires courts to

make judgments about “the legitimate functions and

purposes of the state.” Thomas W. Merrill, Article, The

Economics of Public Use, 72 Cornell L. Rev. at 65. On the

other hand, “a more narrowly focused and judicially

manageable inquiry” would ask “where and how govern-

ment should get property, not what it may do with it.” Jd.

at 66.

ee nS elles

19

III. Rational Basis Review Is Inappropriate Be-

cause Eminent Domain Exercised for a Specific

Purpose

Rational basis review requires a court merely to

satisfy itself that the government action advances some

conceivable public purpose. See FCC v. Beach Communica-

tions, 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d 211

(1993). Nor is the government required to articulate a

justification for its action. Jd. at 315. But, the eminent

domain power is not exercised for conceivable purposes.

The eminent domain power always is exercised to advance

specific purposes. In fact, established rules governing the

forced taking of private property universally require an ex

ante statement of the “ends” justifying the condemnation.

In most states, and for all takings by the federal govern-

ment, eminent domain is a judicial proceeding. After

satisfying the necessary prerequisites, the condemning

entity files an action against the persons whose property it

seeks to take. 6 Nichols on Eminent Domain § 24.05[1]

(2004). And, the condemning entity must submit pleadings

which, inter alia, describe the land to be taken, and,

importantly, set forth the public use for which it is being

taken. Id. at § 26A.02(1] (excerpting state statutes). See

also Fed. R. Civ. P. 71A(c)(2) (directing that “the complaint

(for condemnation of property] shall contain a short and

plain statement of .. . the use for which the property is to

be taken”).

The fact that the government must already justify

every exercise of eminent domain with an ex ante state-

ment of purpose undercuts Midkiff’s insistence that a

proper respect for the prerogatives of the political

branches requires courts to speculate about conceivable

justifications for an exercise of eminent domain. See

20

Midkiff, 467 U.S. at 240 (citations omitted). The Court has

held that such speculation is inappropriate when the

government has articulated the purpose of its policy. In

several equal protection cases, the Court has rejected the

“conceivability” test under circumstances present with

every exercise of eminent domain - that is, where the

government stated, with particularity, the purpose of its

action. For example, in Allegheny Pittsburgh Coal uv.

County Commission, 488 U.S. 336, 109 S.Ct. 633, 102

L. Ed. 2d 688 (1989), the Court considered an equal

protection challenge to a county’s practice of reassessing

property for tax purposes only when title changed hands.

The Court invalidated the assessment scheme because

similarly situated property owners bore drastically differ-

ent tax burdens. Jd. at 341. Three years later, in Nordlin-

ger v. Hahn, 505 U.S. 1, 112 S. Ct. 2326, 120 L. Ed. 2d 1

(1992), the Court rejected an equal protection challenge to

California's Proposition 13, which had a nearly identical

effect. In distinguishing the cases, the Court relied upon

the fact that the county in Allegheny Pittsburgh Coal had

asserted that its assessment scheme was “rationally

related to its purpose of assessing properties at true

current value.” Id. at 15. (Which, as a matter of logic, it

could not be.) The Court then implied that, when the

government articulates a purpose for its action, it will be

held to it: “The Equal Protection Clause does not demand

for purposes of rational basis review that a... governing

decisionmaker actually articulate at any time the purpose

or rationale supporting its classification.... [But] the

Court’s review does require that a purpose may concelva-

bly or may reasonably have been the [decisionmaker’s]

purpose and policy.” Jd. at 15 (citations omitted). The

Court cited as authority for this proposition Wheeling Steel

Corporation v. Glander, 337 U.S. 562, 69 S. Ct. 1291, 93

21

L. Ed. 1544 (1949), observing that “[alfter the Court in

Wheeling Steel determined that the statutory scheme’s

stated purpose was not legitimate, the other purposes did

not need to be considered because ‘having declared their

purpose, the ... statutes left no room to conceive of any

other purpose for their existence.’” Nordlinger, 505 U.S. at

16 n.7 (quoting Allied Stores of Ohio v. Bowers, 358 U.S.

522, 530, 79 S. Ct. 437, 3 L. Ed. 2d 480 (1959)).

IV. The Court Should Resolve the Confusion in

the Lower Courts by Adopting Intermediate

Means-Ends Scrutiny in Public Use Cases

The confusion in the lower courts - ard the wide-

spread resistance to the application of rational basis

review — is itself a signal that the total-deference rule is

not appropriate. One reason that lower courts may have a

particularly difficult time is that the traditional public use

inquiry demands, like substantive scrutiny of economic

regulations enacted pursuant to the police power, an

inquiry into the appropriate ends of government action.

(The court must decide, for example in this case, “is

economic development a public use?” or “is economic

development in the public interest?”) For the reasons

discussed above, courts understandably wish to avoid this

ends-oriented inquiry. A more judicially manageable

inquiry would focus instead on whether eminent domain is

the appropriate means by which a government may pursue

desired policies. A focused means-oriented inquiry would

also have the salutary effect of resolving the confusion in

the lower courts. It is apparent that many judges facing

real-life abuses of the eminent domain power are demand-

ing more than a “conceivable” justification for a condemna-

tion. While some have simply concluded that “economic

22

development” alone is not a public use, others demand

that the condemning entity justify their decision to resort

to eminent domain to advance the goal of economic devel-

opment.

One possible model for discerning an appropriate

means-oriented test for eminent domain can be found in

the regulatory takings context. In Dolan, 512 U.S. 302,

state courts were similarly divided on the appropriate

standard of review for regulatory “exactions.” The Court

considered several different state-court-developed tests for

reviewing exactions and then concluded that the test that

most closely approximated the correct federal standard

required “the municipality to show a ‘reasonable relation-

ship’ between the required dedication and the impact of

the proposed development.” Jd. at 391. It expressed con-

cern, however, that the phrase “reasonable relationship”

might be confused with lax rational basis review and chose

the “rough proportionality” standard as its rough equiva-

lent. Jd. The Court defined the rough proportionality

formula as follows: “No precise mathematical calculation

is required, but the city must make some sort of individu-

alized determination that the required dedication is

related in both nature and extent to the impact of the

proposed development.” Jd

The Dolan compromise requires a relatively narrow

means-based inquiry; it does not preclude the government

from pursuing their regulatory goals, but it does limit how

those goals may be pursued. The fact that the government

has choices about how to acquire land to advance the

public interest permits courts to formulate a similar test to

review an exercise of eminent domain. When the govern-

ment decides that it needs property to advance the public

interest, it can purchase it on the market, condemn it, or,

23

in some cases, demand it as an exaction. If the government

decides to proceed with a condemnation, it makes addi-

tional choices about how to exercise the power of eminent

domain: Should it avail itself to “quick take” procedures? If

the property is to be transferred to a private party follow-

ing the condemnation, should the government simply

delegate its power of eminent domain to the ultimate

beneficiary? Should that beneficiary be required to guar-

antee that the property will be used for the purpose for

which it is to be condemned?

Because the government can, and does, make deci-

sions about how to acquire land, a court reviewing a public

use challenge could require a showing similar to that

demanded in an exactions case: Can the government link

the means by which and purpose for which it seeks to

acquire land? That is, can the government demonstrate

that a given exercise of eminent domain was “reasonably

necessary” for, or “related in nature and extent” to, the

public purpose for which the condemnation power was

invoked? See Nollan, 483 U.S. at 834 (“We have long

recognized that land-use regulation does not effect a

taking if it ‘substantially advance[s] legitimate state

interests’”) (quoting Agins v. Tiburon, 447 U.S. 255, 260,

100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980). This inquiry

would continue to reflect the prevailing view that the

legislature, rather than the judiciary, is better able to

determine what projects are in the public’s interest. It

would reject, however, the conclusion that the court need

only satisfy itself that “the exercise of eminent domain

power is rationally related to a conceivable public pur-

pose.” Midkiff, 467 U.S. at 241 (citations omitted). Instead,

the courts would ask the government to establish a link

24

between the exercise of eminent domain and the particu-

lar purpose for which it was condemned.

While this represents a departure from current

constitutional standards, it would map rather easily onto

standard eminent domain procedures. The established

procedures for taking property, discussed above, simplify

means-ends analysis by requiring, ex ante, a statement of

the “ends” justifying the condemnation. The purpose used

to justify the taking in these pleadings, which must be

stated with particularity in many states could easily serve

as the “ends” portion of the public use equation, just as the

“impact of the proposed development” is used for rough

proportionality review of exactions, Dolan, 512 U.S. at

391.

Such a test might be applied in several different fact-

dependent ways. First, a court might ask whether the

exercise of eminent domain substantially advances the

government’s policy goals. Generalized statements about

the necessity for a taking, are inadequate. The govern-

ment might instead be required to prove its case — to

demonstrate that the project cannot go forward without

the property and that the property is unavailable except

through coercive means. Additionally, an application of a

reasonable necessity test might take a form of means-ends

scrutiny familiar in other areas of constitutional law -

inquiry into whether the government’s actions are “over-

inclusive” (or, at least theoretically, “under-inclusive”). A

court seeking to determine whether a condemnation is

“related in nature and extent” to the public purpose justify-

ing it might ask whether the government is acquiring too

much land or whether the government needs the particu-

lar parcel of land at issue. Some state courts already

entertain such challenges, permitting property owners to

er

25

argue that the size of the taking is excessive. An over-

inclusive/under-inclusive analysis might follow the dis-

sent’s suggestion below that the city should be required to

prov: that their need for the land is not purely specula-

tive that the proposed use of the land is reasonably

cert ain to come to pass, etc. Finally, means-ends scrutiny

in a public use case might entail a court evaluating the

procedural details of an exercise of eminent domain. For

example, the government's decision to exercise “quick-

take” powers or to delegate the power of eminent domain

to a private beneficiary might trigger heightened scrutiny.’

Whatever the prerise formulation adopted by the

Court, the government should be required to make some

sort of individualized determination of the need for the

particular parcel in question before condemning private

property. At a bare minimum, “a condemnor should be

expected to establish that the public at large will be

benefited by the exercise of eminent domain, and that less

intrusive means of acquiring property are not availing.

Generalized statements as to the necessity for a taking,

sometimes veering toward mere speculation, should not be

regarded as adequate.” James W. Ely, Jr., Can the Despotic

Power be Tamed? Reconsidering the Public Use Limitation

on Eminent Domain, A.B.A. Prob.& Prop. (Nov/Dec. 2003),

* Quick-take statutes permit the government to obtain title and

possession of property prior to a final judgment in an eminent domain

action. See Declaration of Taking Act, ch. 307, 46 Stat. 1421 (1931)

(codified as amended at 40 U.S.C. §§ 3114-3116 (supp. 2003)); 6 Nichols

on Eminent Domain § 24.10. The Court previously has rejected facial

challenges both to quick take procedure and to the delegation of

eminent domain powers. See Cherokee Nation v. S. Kan. Railway Co.,

135 U.S. 641, 10 S. Ct. 965, 34 L. Ed. 295 (1890). The Court need not

revisit these holdings in order to adopt our suggestion that a resort to

these procedures should be carefully scrutinized.

26

available at http//www.abanet.org/rppt/publications/magazine/

2003/nd/ely.htm!] (last visited Nov. 28, 2004).

Just as the Court required project-specific findings of

nexus and proportionality to support dedications of land as

conditions for land development permits in Dolan, the

Court should now require the government to make a

specific, individualized determination to ensure that “a

controlling purpose of the condemnation is the removal of

blight or slums that endanger the public health, morals,

safety or welfare.” Hathcock, at 796 (Weaver, J., concur-

ring in part and dissenting in part). See also Richardson v.

City and County of Honolulu, 124 F.3d 1150, 1168 (9th Cir.

1997) (O’Scannlain, Diarmuid F., concurring in part and

dissenting in part) (“Because the Nollan-Lucas-Dolan trio

increased the level of scrutiny given to police power

regulations, identifying some of them as takings, it stands

to reason that the same increased scrutiny should be given

to outright condemnation. If a taking does not have the

required fit — perhaps something like Nollan’s “essential

nexus” — between its proclaimed public use and its actual

effect, then it should be invalid under the Public Use

Clause.”)

°

CONCLUSION

This Court should remand and direct the lower court

to reconsider Respondents’ decision to resort to eminent

domain under the appropriate intermediate scrutiny

standard. The lower court’s approval of the condemnations

proceeded under the broad deferential standard articu-

lated in Midkiff. A remand is especially appropriate in

light of the inherently speculative benefits of “economic

27

development” projects,’ see, e.g., INSTITUTE ON TAXATION

AND ECONOMIC POLICY, MINDING THE CANDY STORE: STATE

AUDITS OF ECONOMIC DEVELOPMENT 35-41 (summarizing

fifteen state audits that show economic development

incentives are generally ineffective), and the uncertain

role that that Petitioners’ land will play in advancing the

goal of redevelopment.

Respectfully submitted,

DavID L. CALLIES* NICOLE STELLE GARNETT

Kudo Professor of Law Associate Professor of Law

WILLIAM S. RICHARDSON NOTRE DAME LAW SCHOOL

SCHOOL OF LAW Notre Dame, Indiana 46556

2515 Dole Street

Honolulu, Hawaii 96822

808-956-6550

*Counsel of Record

* The speculative nature of the “economic development” goal

should be contrasted with the more immediate need to eliminate

“blight. As discussed previously, Respondents did not find that

Petitioners’ properties were blighted.