Amicus Curiae Brief — Kelo v. New London

——" !

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~

—*- | JAN 2 ¢ 9095

No. 04-108 | |

In The —

Supreme Court of the United States

a

SUSETTE KELO, et al.,

Petitioners,

Vv.

CITY OF NEW LONDON and NEW LONDON

DEVELOPMENT CORPORATION,

—- Respondents.

¢

On Writ Of Certiorari To The

Supreme Court Of The State Of Connecticut

°

BRIEF OF LAW PROFESSORS

ROBERT H. FREILICH, RICHARD BRIFFAULT,

JULIE CHESLIK, JANICE C. GRIFFITH,

TIM IGLESIAS, JULIAN CONRAD JUERGENSMAYER,

ANITA MILLER, THOMAS E. ROBERTS,

PATRICIA E. SALKIN, EDWARD J. SULLIVAN,

ROBERT R. M. VERCHICK, JUDITH WELCH

WEGNER, AND ALAN WEINSTEIN AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

¢

ROBERT H. FREILICH*

ROBIN A. KRAMER

FREILICH, LEITNER & CARLISLE

4435 Main Street

Kansas City, MO 64111

(816) 561-4414

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

IDENTITY AND INTEREST OF AMICI ...................

STATEMENT OF THE CASE .............ccccccceeeseeeeeeeeees

SUMMARY OF THE ARGUMENT.................:cccceeeeees

PFT ccccccccccccsessecsesssscsenncenesesnqnepessvessssssnseosees

A. THE RATIONAL BASIS TEST IS THE

APPROPRIATE STANDARD FOR JUDICIAL

REVIEW OF CONDEMNATIONS FOR ECO-

NOMIC REDEVELOPMENT AND REVI-

TIARA EN cocverccececccccccssossccosesescesesssoseses

B. TO THE EXTENT THE FIFTH AMEND-

MENT REQUIRES ANY STANDARD

FOR PUBLIC USE IN THE CASE OF

ECONOMIC DEVELOPMENT, REDE-

VELOPMENT OR REVITALIZATION,

SUCH STANDARD IS ADEQUATELY

MET BY ENSURING THAT THE GOV-

ERNMENT CONDEMNOR- RETAIN

SOME LEVEL OF REGULATORY, CON-

TRACTUAL OR OWNERSHIP CONTROL

OVER THE UGE ......cccccccccccccccscccssoocsvessses

CORCLAIGION on ccccccsscccccccsccccccssscvccccocccssscosccsesesoocssoes

il

TABLE OF AUTHORITIES

Page

CASES "

99 Cents Only Store v. Lancaster Redev. Agency, 237

F. Supp.2d 1123 (C.D. Cal. 2001) ...............sscesecesserseeons 12

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

BBe. BBGBP .nccoscecccesesssciscosecssesnsssentenisnimeetanamammaamemnniue, 12

Agins v. City of Tiburon, 447 U.S. 255 (1980)... 14

Arcara v. Cloud Books, Inc. 478 U.S. 697 (1986)............... 9

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

Blanchard v. Dept. of Transportation, 798 A.2d 1119

(BBe. SEGED ..ccrsesesoscescvcnsenmnsnensniininammnmaaaiaiael 19

Casino Redev. Auth. v. Banin, 727 A.2d 102 (N.J.

Dupes. LAW WG, BEGG ecocesecsccvesovecssscesensecnvasnovtasesnnes 12,19

Chevron USA, Inc. v. Bronster, 363 F.3d 846 (9th

Cle, BDO) nnccccessccosssscnssecsssinsssnenssinessaiesisamimmaaaaniaad 15

Chicago, Burlington & Quincy R.R. Co. v. Illinois,

BOS WED. GEE CHI acccoscssscsecssaunssiiiiisasianaienmumaemmian 8, 16

City of Cleburne, Texas v. Cleburne Living Center,

STB WE. GES CRB cccscccoceessctsttinpniommmeamninin 9,10, 11

City of Las Vegas v. Pappas, 76 P.3d 1 (Nev. 2003)............. 7

City of Little Rock v. Raines, 411 S.W. 2d 486 (Ark.

BIT) 0<00ccccssnscacesnsensenseninssessinnannieiisianemmammanmaeniamnie 12

City of Monterey v. Del Monte Dunes at Monterey,

BOG. GBB WED. GG CBee cesesescscctssssesncnssvessentvsnssenanecen 13

Condemnation of 110 Washington Street, 767 A.2d

ROGDS Gree. Genes, GIR, SI ccccencnesssctonensnenssinenenssssanennns 19

County of Wayne v. Hathcock, 684 N.W. 2d 765

CREED, Ti Oe scccccnsccsnssessinsisnniionmnntatiaiiieiaing 7, 12, 13, 17

ill

TABLE OF AUTHORITIES -— Continued

Page

Daniels v. Area Plan Commission of Allen County,

306 F.3d 445 (4th Cir, 2002) 000.0... ccccccsceeeseteeeeseeeeees 12

Day-Brite Lighting Inc. v. State of Mo., 342 U.S.

EE SSE 10

Dolan v. City of Tigard, 512 U.S. 374 (1994)...............008. 13

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ............ 14

Bx ret. TVA vw. WeleR, SB7 UB. BAG...........ccccccccocccccccccccsceeess 5

Exxon Corp. v. Governor of Maryland, 437 U.S. 117

ES STATO 10

Federal Communications Commission v. Beach

Communications, Inc., 508 U.S. 307 (1993)...............0008. 6

General Bldg. Contractors, L.L.C. v. Bd. of County

Comm'rs of Shawnee County, 66 P.3d 873 (Kan.

STITT cetanttninnnntnntnctadentnennnessnenccensese 7,17

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

i Aieitiereiaeeddehnaenstenednestennsnnesasecesncnscosessseccey passim

Huntington Park Redevelopment Agency v. Duncan,

190 Cal. Rptr. 744 (Cal. App. 1983), cert. denied,

a 20

Kaufmann’s Carousel, Inc. v. City of Syracuse

Indust. Development Agency, 301 A.D. 2d 292

Ee 17

Kelo v. City of New London, 843 A.2d 500 (2004)............ 3,6

Keystone Bituminous Coal Ass’n v. DeBenedictis,

a 15

Lawrence v. Texas, 539 U.S. 558 (2003) .............cccccccceeeeees 11

Macready v. City of Winston-Salem, 467 S.E. 2d 615

EE SL 17

iv

TABLE OF AUTHORITIES — Continued

Page

Manufactured Housing Communities of Washington

v. State of Washington, 13 P.3d 183 (Wash. 2000)......... 19

Mason City & Fort Dodge R.R. Co. v. Boynton, 204

A SU TEE cxiciantcteneiibanssninapinsmesindanminenamuniesiaimennneniiiin 14

Massachusetts Bd. of Retirement v. Murgia, 427

SE See Cell ccicsicneenionisnnsindianstaniainihienntecinminatiatatbiniaeeniieieminanaaiil 9

Matter of Condemnation by Minneapolis Community

Development Agency of Certain Lands in City of

Minneapolis Situated in Development Dist. No. 57,

South Nicollet Mall, 582 N.W. 2d 596 (Minn. Ct.

BRED), Fp eseccececsscenscesesessnsnsnsssnsssansennsBbansssanssavessnsnnsneneneses 7

Morrison Homes Corp. v. City of Pleasanton, 58 Cal.

Rap, GB Tae Ga ee erteantenennsmensninmnmmmninennneninnes 20

Natl R.R. Passenger Corp. v. Boston and Maine

DD OE 5, 6, 15

Nollan v. California Coastal Comm’n, 483 U.S. 825

eee nceseasnieteniasinsienrimsiesuatiasianiataninnaiaadiaeeintabataitideacaaamateialiaaeanitiiaids 13

Old Dominion Co. v. United States, 269 U.S. 55

(Fi cscnsesincinctrenpictecnaiedenniniatcetniiniaiiindentinciateieitiiahlleeaaliitaiadiadebiaial 5

Poletown Neighborhood Council v. Detroit, 304

eee ee PEED, SEITE cocncnennsnsnnentitennannommanes 6, 7, 12

Prince George’s County v. Collington Crossroads,

es 17

Prune Yard Shopping Center v. Robins, 447 U.S. 74

STITT cesccsnessenicesattsesitensaesietiannetaniiattiniteananabansiatiapasiaimatienmaieaiaastiaaniiaiias 11

Richardson v. City and County of Honolulu, 124

cB 13

Rindge Co. v. Los Angeles County, 262 U.S. 700

ee SN inenneised 5, 8

TABLE OF AUTHORITIES -— Continued

Page

San Antonio Indep. School Dist. v. Rodriguez, 411

TEE MOU ITTEsesessnicinsindidshiaaniencnadhieetinadtiaitasbcctiniahitasshaihtibleaisniiaeeaiieaiineeniabnaiias i]

Santa Margarita Area Residents Together v. San .

Luis Obispo County, 84 Cal. App. 4th 221 (2002)......... 20

Schad v. Borough of Mount Ephraim, 452 U.S. 61

STITT rind itiesrasieettllcdeeietemedahinndanbciendaeitsinieaieiieiicinitiieaeitaamatnieetdaasiatiaaials 14

Southwestern Illinois Development Authority v.

Nat City Environmental L.L.C., 768 N.E.2d 1

EE ne era ne ee Te 18

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 535 U.S. 302 (2002)........... 18

Town of Beloit v. County of Rock, 657 N.W. 2d 344

(Wie. BOOB) .....cccccoceces. iscesenieideiaetiieneostenaisinaaiinesdidiediabaciaiiaeatiemca harass 7

Township of West Orange v. 769 Associates, L.L.C.,

EE Kana enna 20

United States v. Clarke, 445 U.S. 253 (1980).............. 14, 15

United States v. Gettysburg Electric R.R. Co., 160

Ss nxn istacacteniaiichiea nteniatinbeieentenciaeniiinematitieatianieainees 5,8

United States v. O’Brien, 391 U.S. 367 (1968).................... 4

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)........... 14

OTHER AUTHORITIES

Michael S. Bernick and Amy E. Freilich, TRANSIT

VILLAGES AND TRANSIT BOARD DEVELOPMENT: THE

RULES ARE BECOMING MORE FLEXIBLE — How

GOVERNMENT CAN WORK WITH THE PRIVATE

SecTOR TO MAKE IT HAPPEN, 30 Urb. Law. 1

ITs ieameeaatelamiaiiatehaaiadieeetdhceediaatndaadibaiadiaaiiaaiaiasiearieadiai 19, 20

vi

TABLE OF AUTHORITIES - Continued

Freilich & Kramer, CONDEMNATION FOR ECONOMIC

DEVELOPMENT VIOLATES PUBLIC USE CLAUSE: THE

MICHIGAN SUPREME COURT OVERTURNS HISTORIC

POLETOWN DECISION, 27 Zoning and Planning L.

Rep. 1, No. 10, Nov. 2004 (Thomson-West)..............

Greenstone & Moretti, BIDDING FOR INDUSTRIAL

PLANTS: DOES WINNING A MILLION DOLLAR PLANT

INCREASE WELFARE? National Bureau of

Economic Research, Nov. 2004................cccccceeeeeeeeees

Thomas Merrill, THE ECONOMICS OF PUBLIC USE, 72

oo SE

Pritchett, THE PUBLIC MENACE OF BLIGHT: URBAN

RENEWAL AND THE PRIVATE USES OF EMINENT

DOMAIN, 21 Yale J of L & Pol. Rev. 2 (2003).............

Phillip A. Talmadge, THE MYTH OF PROPERTY

ABSOLUTISM AND MODERN GOVERNMENT: THE

INTERACTION OF POLICE POWER AND PROPERTY

RIGHTS, 275 Wash. L. Rev. 857 (2000)...............:.00++

TREATISES

2A NICHOLS ON EMINENT DoMAIN, § 7.06 [24][c] at

p. 7-242 (Matthew Bender rev. 3d ed. 1998)............

D. Hagman, URBAN PLANNING AND LAND

DEVELOPMENT CONTROL LAW 328 (1971)..................

CONSTITUTIONAL PROVISIONS

Or Mi No eeininraniaainidtelitaninaaieaiidilon

Page

1

IDENTITY AND INTEREST OF AMICI’

A group of land use and property professors submitted

a Brief Amicus Curiae in support of Petitioners. A separate

group of land use and property professors are filing this

counter brief to express their belief that the position of the

prior brief, to wit, that in judicial review of public use

under the Fifth Amendment the reviewing court must use

intermediate scrutiny in lieu of rational basis, is errone-

ous, and that rational basis remains the appropriate level

of scrutiny for determinations of public use in economic

redevelopment matters.

The professors filing this brief in support of Respon-

dents comprise the following:

Robert H. Freilich, Professor of Law, University of

Missouri-Kansas City School of Law, national editor of

THE URBAN LAWYER, the national quarterly journal on

state and local government law of the American Bar

Association; Richard Briffault, Vice-Dean and Joseph P.

Chamberlain Professor of Legislation, Columbia Law

School; Julie Cheslik, Associate Professor of Law, Univer-

sity of Missouri at Kansas City; Janice C. Griffiths,

Professor of Law, Georgia State University College of

Law; Tim Iglesias, Associate Professor, University of San

Francisco School of Law; Julian Conrad Juergensmayer,

* Counsel for the parties have consented to the filing of this brief.

No counsel for a party in this case authored this brief in whole or in

part, and no person or entity, other than amici or their counsel, made a

monetary contribution to the brief’s preparation or submission.

* Professor Freilich and Professor Thomas E. Roberts, who joins this

brief, are co-authors, with Professor David Callies, who authored the Law

Professors’ Amicus Brief in support of Petitioners, of Callies, Freilich &

Roberts, Cases and Materials on Land Use. (4th Ed. West 2004).

2

Professor of Law, Georgia State University, and Professor

of Law Emeritus, University of Florida; Anita Miller,

Adjunct Professor, Department of Community and Re-

gional Planning, and School of Law, University of New

Mexico; Thomas E. Roberts, Professor of Law, Wake Forest

School of Law; Patricia E. Salkin, Associate Dean and

Professor of Law, and Director, Government Law Center

for Albany Law School; Edward J. Sullivan, Adjunct

Professor, Department of Urban Studies and Planning,

Portland State University, and Adjunct Professor of Law,

Lewis and Clark College; Robert R. M. Verchick, Gauthier-

St. Martin Chair in Environmental Law, Loyola Univer-

sity, New Orleans; Judith Welch Wegner, Professor of Law,

University of North Carolina at Chapel Hill; and Alan

Weinstein, Professor of Law, Cleveland-Marshall College

of Law and Maxine Goodman Levin College of Urban

Affairs.

¢

STATEMENT OF THE CASE

In an effort to reverse a devastating decline in popula-

tion, abandonment, and a deteriorating economy due in

major part to the region’s shifting of resources to suburban

sprawl, the City of New London, a “distressed municipal-

ity” of the State of Connecticut (the “City”), developed a

comprehensive plan and implementation program to

reverse the situation. In accordance with Chapter 132 of

Connecticut statutes, the City commenced a municipal

redevelopment project and granted initial approval to the

preparation of a redevelopment plan. The New London

Development Corporation (the “NLDC”) prepared a multi-

faceted plan, covering approximately 90 acres, which

included commercial, retail, residential, tourist and

recreational facilities. Fulfillment of this plan required the

3

acquisition of land by the NLDC. When certain property

owners refused to sell their land, the NLDC utilized

eminent domain to acquire hold-out properties in order to

complete the project. Seven property owners in the devel-

-opment plan area (“Petitioners”) challenged the City’s

actions, asserting that economic redevelopment and

revitalization of the city was not a public use necessary to

support condemnation under the Fifth Amendment, unless

there was a finding of blight in the planned area subject to

the condemnation. The Connecticut Supreme Court (the

“Connecticut Court”) determined that economic develop-

ment was a “valid public use for the exercise of the emi-

nent domain power” where the City’s population and

economy were severely distressed and major intervention

by state and local government was required. Kelo v. City of

New London, 843 A.2d 500, 528 (2004).

This Court granted certiorari. The Court has before it

the issue of whether the Fifth Amendment “public use

clause” per se prevents a city from acquiring private land

through eminent domain in order to achieve the economic

development and revitalization of a distressed community

unless there is a concomitant finding of blight in the

affected area.

¢

SUMMARY OF THE ARGUMENT

This Court for over 100 years has reviewed cases

under the Fifth Amendment public use takings clause’

using the rational basis test, and this test remains, in our

view, the appropriate test, especially for state and local

*« .. nor shall private property be taken for public use without

just compensation.” U.S. Const. Amend. V.

4 _

government legislative determinations to use condemna-

tion to achieve the social and economic redevelopment and

revitalization of a city. This Court has never used higher

scrutiny for eminent domain or takings except in a limited

range of cases involving unconstitutional conditions

attached to development approval, and there is no reason

to apply it to direct condemnation under the Fifth

Amendment. In determining whether property may be

acquired by condemnation for social und economic redevel-

opment and revitalization, the requisites of our Constitu-

tion are fully satisfied if a court evaluates whether the

legislative determination supporting the condemnation is

rational, and the legislative decision must be upheld

unless it is patently arbitrary or lacks valid statutory

authority. Intermediate scrutiny is highly inappropriate in

our federalist form of government. This Amicus Brief

urges this Court to reiterate its prior holdings, establish-

ing that so long as:

(1) there is state statutory or home rule authority

establishing the goals and means of achieving social and

economic redevelopment and revitalization;

(2) the state or local government has utilized a

comprehensive planning process and analysis assessing

the goals and means; and

(3) the state or local government retains regulatory

or contractual or ownership control over the project and a

private redeveloper,

there is valid public use and purpose to meet the Fifth

Amendment’s rational basis review.

¢

5

ARGUMENT

A. THE RATIONAL BASIS TEST IS THE AP-

PROPRIATE STANDARD FOR JUDICIAL

— REVIEW OF CONDEMNATIONS FOR ECO-

NOMIC REDEVELOPMENT AND REVI-

TALIZATION.

For more than seventy-five years, this Court has used

a broad reading of the Fifth Amendment public use clause.

“Public uses are not limited, in the modern view, to mat-

ters of mere business necessity and ordinary convenience

...” Rindge Co. v. Los Angeles County, 262 U.S. 700, 707

(1923). In determining whether a public use exists, this

Court has held that it should “regard with great respect

the judgments of state courts upon what should be deemed

public uses in any state.” Jd. at 706. In its decisions in

1954, Berman v. Parker, 348 U.S. 26, 32 (1954) and in

1984, Hawaii Housing Authority v. Midkiff, 467 U.S. 229,

240-41 (1984), applying the rational basis test to economic

redevelopment, this Court cited with approval prior case

holdings that rational basis deference to a legislature’s

“public use” determination is required until it is shown to

involve an impossibility, Old Dominion Co. v. United

States, 269 U.S. 55, 66 (1925), that “any departure” from

such deference “has proved impracticable in other fields,”

Ex rel. TVA v. Welch, 327 U.S. 546, 552, and that such

deference will not be removed unless “the use be palpably

without reasonable foundation.” United States v. Gettys-

burg Electric R.R. Co., 160 U.S. 668, 680 (1896).

A court’s review is limited to a determination of

whether there is a rational basis for the condemnation: “as

long as the condemning authorities were rational in their

positions that some public purpose was served,” condem-

nation would be upheld. Natl R.R. Passenger Corp. v.

6

Boston and Maine Corp., 503 U.S. 407, 422 (1992), citing

Midkiff, 467 U.S. at 242-43 and Berman, 348 U.S. at 32-

34. Particularly in fields of social and economic legislation,

which underlie all efforts at economic redevelopment and

revitalization, this Court, per Thomas, J., has recently

reiterated and made clear that a challenger not only “has

the burden to negative every conceivable basis” that might

support legislative action but also that “a legislative choice

is not subject to courtroom facts findings and may be

based on rational speculation unsupported by evidence or

empirical data.” Federal Communications Commission uv.

Beach Communications, Inc., 508 U.S. 307, 315 (1993)

(emphasis added).

Arguments raised by Petitioners and some of the

amici briefs supporting Petitioners, see, e.g. Briefs Amicus

Curiae of Professors David L. Callies, et al.; The National

Association of Home Builders and the National Association

of Realtors; New London Landmarks, Inc. et al.; Cascade

Policy Institute; New London R.R. Co., Inc.; and Robert

Nigel Richards, et al., assert that a categorical per se rule

should be established holding that the rational basis test

is not appropriate when a court is reviewing the suffi-

ciency of public use in an eminent domain case, and that

an ill-defined intermediate scrutiny test should be used by

this Court. The use of a higher level of review in eminent

domain cases is not supported by any decision of this

Court or by the overwhelming majority of state courts.*

* For a comprehensive review of all state decisions in this area up

to and including the Kelo decision in the Connecticut Supreme Court,

see, Robert H. Freilich and Robin A. Kramer, CONDEMNATION FOR

ECONOMIC DEVELOPMENT VIOLATES PUBLIC USE CLAUSE: THE MICHIGAN

SUPREME COURT OVERTURNS HISTORIC POLETOWN DECISION, 27 Zoning

and Planning L. Rep. 1, No. 10, November 2004 (Thomson-West).

f

7

Instead, the trend has been to allow a narrow scope of

judicial review of legislative decisions on eminent domain.

See Matter of Condemnation by Minneapolis Community

Development Agency of Certain Lands in City of Minneapo-

lis Situated in Development Dist. No. 57, South Nicollet

Mall, 582 N.W. 2d 596, 599 (Minn. Ct. App. 1998), rev.

denied, finding that “the application of a higher level of

scrutiny to review condemnation proceedings is out of

touch with the national trend,” citing 2A NICHOLS ON

EMINENT DOMAIN, § 7.06 [24][c] at p. 7-242 (Matthew

Bender rev. 3d ed. 1998) (citing cases). Thus, the recent

decision by the Michigan Supreme Court in County of

Wayne v. Hathcock, 684 N.W. 2d 765 (Mich. 2004), which

found that a condemnation was not for a public use and

overturned Poletown Neighborhood Council v. Detroit, 304

N.W. 2d 455 (Mich. 1981), rejected Poletown’s heightened

scrutiny test. See, also, City of Las Vegas v. Pappas, 76

P.3d 1, 11 (Nev. 2003) (“so long as a redevelopment plan, or

any individual redevelopment project, bears a rational

relationship to the eradication of physical, social or eco-

nomic blight, it serves a public purpose within the power

of eminent domain.”); General Bldg. Contractors, L.L.C.

Bd. of County Comm’rs of Shawnee County, 66 P.3d 873

(Kan. 2003) (upholding county’s ability to condemn prop-

erty for industrial and economic development); Town of

Beloit v. County of Rock, 657 N.W. 2d 344, 353 (Wis. 2003)

(“it is a well-settled rule that the legislative body deter-

mines what constitutes a public purpose, and that courts

will not interfere unless at first blush the act appears so

obviously designed in all its principal parts to benefit

private persons... ”).

The “astional trend” acknowledging that economic

developmen: is a valid public purpose and that judicial

review of such purpose is “extremely narrow,” Berman 348

8

U.S. at 32, began over 100 years ago. In Chicago, Burling-

ton & Quincy R.R. Co. v. Illinois, 200 U.S. 561 (1906), this

Court held that “the police power of a state embraces

regulations designed to promote the public convenience or

the general prosperity,” Jd. at 592. In United States v.

Gettysburg Electric R.R. Co., 160 U.S. 668, 680 (1896), this

Court stated “that when the legislature has declared the

use or purpose to be a public one, its judgment will be

respected by the courts, unless the use be palpably with-

out reasonable foundation.” In Rindge Co., this Court

stated that a state’s determination of a public use should

be approached “with great respect.” 262 U.S. at 707.

The current scope of the public use clause and this

Court’s deference to the legislative purposes in its review

of such cases was set forth in Berman and Midkiff. In

Berman, this Court considered whether private property

could be taken as part of an urban development project

even though the specific property taken was not blighted.

This Court held that the definition of the police power “is

essentially the product of legislative determination ad-

dressed to the purposes of government...” and

the legislature, not the judiciary, is the main

guardian of the public needs to be served ...

This principle admits of no exception merely be-

cause the power of eminent domain is involved.

The role of the judiciary in determining whether

that power is being exercised for a public purpose

is an extremely narrow one.

348 U.S. at 32 (internal citations omitted).

Petitioners and their amici seriously misunderstand

the holding in Berman. While the Berman court held that

redressing area-wide blight in a redevelopment plan

9

satisfies the public use test, Berman did not hold that a

finding of blight was required to utilize condemnation for

redevelopment. This principle was firmly established in

Midkiff, where this Court reiterated ‘n affirming Berman

that “where the exercise of the eminent domain power is

rationally related to a conceivable public purpose, the Court

has never held a compensated taking to be proscribed by

the Public Use Clause.” 467 U.S. at 241 (citations omitted).

“The constitutional requirement is satisfied if the state

legislature rationally could have believed the Act would

promote its objective.” Jd. at 242 (citation omitted).

Any application of heightened scrutiny would be a

™ serious departure from the Court's well-established

principle limiting higher scrutiny to a narrow range of

cases. “Legislation is presumed to be valid and will: be

sustained if the classification drawn by the statute is

rationally related to a legitimate state interest.” City of

Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432,

440 (1985) (applying rational basis even to exclusion of a

facility for mentally retarded persons). A higher level of

scrutiny, either strict or intermediate, is only applied in an

extraordinarily narrow range of cases, encompassing

innate personal characteristics, including race, alienage,

national origin, gender, legitimacy of birth, Jd. at 440-441;

and First Amendment issues relating to freedom of speech,

see, e.g. United States v. O’Brien, 391 U.S. 367, 377 (1968),

Arcara v. Cloud Books, Inc. 478 U.S. 697, 703-04 (1986).

Heightened, or higher level, scrutiny has not been applied

to mental retardation, Cleburne Living Center, 473 U.S. at

442-443; poverty, San Antonio Indep. School Dist. v.

Rodriguez, 411 U.S. 1 (1973); or age, Massachusetts Bd. of

Retirement v. Murgia, 427 U.S. 307, 31311976). The use of

heightened scrutiny would mean that the courts were

10

making “substantive judgments about legislative deci-

sions,” City of Cleburne, 473 U.S. at 443, or effectively turn

the courts into super-legislatures, to decide whether a use

really benefited the public, or whether the particular

project was the best way to achieve economic development,

or even whether economic development is appropriate in

the situation. See Phillip A. Talmadge, THE MYTH oF

PROPERTY ABSOLUTISM AND MODERN GOVERNMENT: THE

INTERACTION OF POLICE POWER AND PROPERTY RIGHTS, 275

Wash. L. Rev. 857 (2000). But this Court has held that it

“doles] not sit as a super-legislature to weigh the wisdom

of legislation nor to decide whether the policy which it

expresses offends the public welfare.” Day-Brite Lighting

Inc. v. State of Mo., 342 U.S. 421, 423 (1952). See, also,

Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124

(1978) (this Court does not “sit as a ‘superlegislature to

weigh the wisdom of legislation.’”) (citations omitted).

Separation of powers and federalism preclude the federal

courts from such interference in what are clearly state

legislative decisions. As long as the courts exercise judicial

review over irrational legislative decisions, no higher

scrutiny is needed.

Moreover, judicial restraint by this Court has worked

well. State courts acting under their own state constitu-

tions as well as the Fifth Amendment have utilized ra-

tional basis to overturn a number of state and local

government condemnations in recent years. See Freilich

and Kramer, at pps. 3-5, listing 20 cases since 1978, most

of them since 2000 (17 cases), overturning condemnations

on rational basis consideration. Why should this Court

overturn a system of review that is working well? This

Court has stated that state courts are at liberty to be more

expansive in interpreting their own state constitutional

11

provisions. Prune Yard Shopping Center v. Robins, 447

U.S. 74, 81 (1980). Going back to the period from Berman

v. Parker (1954) until Midkiff (1984), one commentator

found that an astonishingly high 15% of state cases

reviewing public purpose under rational basis have re-

jected plans for lack of public use. Thomas Merrill, THE

ECONOMICS OF PUBLIC USE, 72 Cornell L. Rev. 61 (1986).

In Cleburne Living Center, this Court discussed that

higher scrutiny was appropriate where the classification is

based on some characteristic which can not be related to

the achievement of a legitimate state interest. Higher

scrutiny is not appropriate where continued legislative

response on a subject evidences state concern and review

of a subject, and “belies” the “need for more intensive

oversight by the judiciary.” 473 U.S. at 443. “Laws such as

economic or tax legislation that are scrutinized under

rational basis review normally pass constitutional muster,

since ‘the Constitution presumes that even improvident

decisions will eventually be rectified by the democratic

processes.’” Lawrence v. Texas, 539 U.S. 558, 579 (2003)

(citations omitted) (O’Connor, J. concurring).

Although some commentators have asserted the need

for heightened scrutiny in eminent domain cases when

evaluating a public use, see, e.g. Pritchett, THE PUBLIC

MENACE OF BLIGHT: URBAN RENEWAL AND THE PRIVATE

UsEs OF EMINENT DOMAIN, 21 Yale J of L & Pol. Rev. 2

(2003), the majority of state courts have not adopted this

procedure, continuing to use the broad purposive review of

Berman and Midkiff. Contrary to several of the cases cited

in the amici briefs, presumably as support for the use of

heightened scrutiny, many of the state court decisions

overturning a condemnation were not decided on higher

scrutiny but either on rational basis or statutory grounds.

12

See, e.g., City of Little Rock v. Raines, 411 S.W. 2d 486,

493-94 (Ark. 1967) (finding that condemnation for creation

of an industrial park was not authorized by state statute);

Daniels v. Area Plan Commission of Allen County, 306 F.3d

445, 460 (4th Cir. 2002) (applying rational basis test but

finding that state legislature had not made economic

redevelopment a basis for eminent domain); 99 Cents Only

Store v. Lancaster Redev. Agency, 237 F. Supp-2d 1123

(C.D. Cal. 2001) (following Midkiff, but finding proposed

condemnation was clearly egregious).

State and federal courts have proved extremely adept

at preventing takings which were palpably without a

rational basis. See, e.g., 99 Cents Only Store; Aaron v.

Target Corp., 269 F. Supp.2d 1162 (E.D. Mo. 2003) (finding

that a temporary restraining order was appropriate because

of bad faith acts by city and store) (overruled on Younger

abstention grounds, 357 F.3d 768 (2004); Casino Redev.

Auth. v. Banin, 727 A.2d 102, 111 (N.J. Super. Law Div.

1998) (finding that sole purpose of condemnation was to

benefit Donald Trump: “any potential public benefit is

overwhelmed by the private benefit received by Trump in

the form of assemblage and future control over development

and use of parcels of prime real estate in Atlantic City”).

Many of the amici briefs supporting Petitioners,

including the Professors’ amicus brief, erroneously distin-

guish the Michigan Supreme Court’s recent decision in

County of Wayne v. Hathcock, 684 N.W.2d 765 (2004) from

the Connecticut Supreme Court decision below, asserting

_that the “heightened scrutiny” test adopted by the Michi-

gan courts in Poletown Neighborhood Council is the correct

test. In fact, the Michigan Supreme Court in Hathcock,

which overruled Poletown Neighborhood Council, did not

13

use the “heightened scrutiny” test in its analysis of public

use. 684 N.W. 2d at 778. The “heightened scrutiny” tests

applied by the various briefs and commentators, i.e.

whether the public or private benefit is primary, whether

there were alternatives, and whether there is clear and

convincing evidence ef public benefit, were not at issue in

nor considered by the court in Hathcock, which decided the

case entirely on state constitutional grounds.

This Court’s decisions in Nollan v. California Coastal

Comm'n, 483 U.S. 825 (1987) and Dolan v. City of Tigard,

512 U.S. 374 (1994) do not change the limited and deferen-

tial level of review to be applied in eminent domain cases

where just compensation is afforded as a remedy. Nollan

and Dolan involved uncompensated unconstitutional

conditions attached to development approvals pursuant to

regulatory exactions, not title to land through condemna-

tion. Under such circumstances this Court held that

higher scrutiny would be appropriate to establish that the

required dedication was “roughly proportional” to the

demands of the proposed use. Dolan, 512 U.S. at 391. In

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687 (1999), this Court made absolutely clear that the

Nollan/Dolan test is limited to these special title exactions

land use cases and does not apply to economic takings in

which compensation is a remedy. 526 U.S. at 702. See

Richardson v. City and County of Honolulu, 124 F.3d 1150,

1158 (9th Cir. 1997) (“[Wle believe that Nollan-Lucas-

Dolan trio does not signal a change from this longstanding

rule of deference because we see nothing inconsistent in

applying heightened scrutiny when the taking is uncom-

pensated, and a more deferential standard when the

taking is fully compensated.”)

14

Adoption of heightened scrutiny in the instant case

and in the review of questions under the “public use”

clause would put a peculiar dichotomy in this Court’s

constitutional analyses under the Fifth Amendment. Since

the early years of the last century, cases evaluating regu-

latory takings under the Fifth and Fourteenth Amend-

ments have used the rational basis test to assess whether

the regulation went “too far.”

Where property interests are adversely affected

by zoning, the courts generally have emphasized

the breadth of municipal power to control land

use and have sustained the regulation if it is ra-

tionally related to legitimate state concerns and

does not deprive the owner of economically viable

use of his property.

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68

(1981), citing Agins v. City of Tiburon, 447 U.S. 255, 260

(1980); Village of Belle Terre v. Boraas, 416 U.S. 1 (1974);

Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926).

Inverse condemnation cases and direct eminent domain

cases are in pari materia: they involve “a cause of action

against a government ... to recover the value of property

which has been taken in fact by the government ... ”

United States v. Clarke, 445 U.S. 253, 257 (1980), citing D.

Hagman, URBAN PLANNING AND LAND DEVELOPMENT

CONTROL LAW 328 (1971). Thus, in eminent domain cases

in which a state requires the propetty owner to be the

plaintiff, rather than defendant, the federal courts will

look to the true identity of the parties and allow the

plaintiffs to remove to federal courts: “[t}he intent of the

[condemnor] to get the land is the mainspring of the

proceedings from beginning to end,” Mason City & Fort

Dodge R.R. Co. v. Boynton, 204 U.S. 570, 580 (1907); in

15

regulatory takings cases, the regulation is the “mainspring

of the proceedings.” Condemnation cases are simply the

“reverse” of a regulatory/inverse condemnation case.

Clarke, 445 U.S. at 257. The scrutiny by this Court is

identical — rational basis.

For this Court to adopt heightened scrutiny in the

case of physical takings under the Fifth Amendment,

where compensation is paid to the landowner, but not in

the case of regulatory takings, where no compensation is

paid, would indeed be paradoxical. See Chevron USA, Inc.

v. Bronster, 363 F.3d 846, 854 (9th Cir. 2004): “The Su-

preme Court reviews the challenged actions in [Midkiff

and Keystone Bituminous Coal Ass’n v. DeBenedictis, 480

U.S. 470 (1987)] more deferentially because they involve

physical takings.”

The rational basis test remains the appropriate

judicial standard for a determination of whether condem-

nation is for a public use. See dissent of Justice Rehnquist

in Keystone Bituminous Coal Ass’n, 480 U.S. at 511, n. 3:

When considering the Fifth Amendment issues

presented by Hawaii's Land Reform Act, we

noted that the Act, “like any other, may not be

successful in achieving its intended goals. But

whether in fact the provisions will accomplish

the objectives is not the question: the [constitu-

tional requirement] is satisfied if ... the .

[State] Legislature rationally could have believed

that the [Act] would promote its objective.

(citing Midkiff; emphasis in original); Nat? R.R. Passenger

Corp. v. Boston and Maine Corp., 503 U.S. 407, 422-23

(1992) (applying the Midkiff/Berman test to a public use

analysis).

16

B. TO THE EXTENT THE FIFTH AMEND-

MENT REQUIRES ANY STANDARD FOR

PUBLIC USE IN THE CASE OF ECONOMIC

DEVELOPMENT, REDEVELOPMENT OR

REVITALIZATION, SUCH STANDARD IS

ADEQUATELY MET BY ENSURING THAT

THE GOVERNMENT CONDEMNOR RE-

TAIN SOME LEVEL OF REGULATORY,

CONTRACTUAL OR OWNERSHIP CON-

TROL OVER THE USE.

If this Court determines that it is necessary to clarify

a standard on the scope of condemnation for economic

development, redevelopment and/or revitalization pur-

poses, such standard can be adequately accomplished by

requiring that state and local governments retain public

ownership or regulatory or contractual oversight or control

over the future uses of the property. Under such a stan-

dard, state and local governments would retain broad

discretion to provide for economic development while

ensuring that the fundamental public nature of the benefit

from the condemnation is maintained. Such a test would

be consistent with state Supreme Court and lower federal

court cases, and would ensure that there was no abject

surrender to private use. This Court has long held that

protection of economic prosperity is a valid goal of the

police power. See Chicago, Burlington v. Quincy R.R. Co.,

200 U.S. at 592. Economic development. and redevelop-

ment are essential tools to ensure the viability and health

of cities. A recent study of the impact of local government

subsidiaries to industrial plants to locate within their

jurisdictions demonstrates a net social and economic

benefit for the local government. Greenstone & Moretti,

BIDDING FOR INDUSTRIAL PLANTS: DOES WINNING A MILLION

DOLLAR PLANT INCREASE WELFARE? National Bureau of

17

Economic Research, Nov. 2004. www.econ.ucla.edu/moretti/

milliondollarplant.pdf.

The vast majority of state legislatures have deter-

mined that economic development is an important public

purpose, which findings have been affirmed by the courts. As

of 1996, “courts in forty-six states have upheld the constitu-

tionality of governmental expenditures and related assis-

tance for economic development assistance.” Macready uv.

City of Winston-Salem, 467 S.E. 2d 615, 626 (N.C. 1996).

Many states have recognized that economic development is a

public use for which purpose a government’s powers of

eminent domain may be exercised. See, e.g., Kaufmann’s

Carousel, Inc. v. City of Syracuse Indust. Development

Agency, 301 A.D. 2d 292 (N.Y. App. Div. 2002) (upholding

condemnation of leasehold interests for shopping center

expansion project that would promote job opportunities,

general prosperity and the public welfare); General Bldg.

Contractors, L.L.C. (authorizing condemnation for eco-

nomic and industrial development purposes as a public

use); Prince George’s County v. Collington Crossroads, 339

A.2d 278, 289 (Md. 1975) (projects designed to “benefit the

general public by significantly enhancing the economic

growth of the State or its subdivisions” are a public use for

which eminent domain can be used).

In Hathcock, the Michigan court held that such a

condemnation of property is a public use when the private

entity remains accountable to the public in the use of that

property (emphasis added). 684 N.W. 2d at 781. Under this

standard, the court reviews an asserted public use under

rational deference to the legislative determination pursu-

ant to the Berman/Midkiff analysis. Where the property is

re-transferred to a private entity after condemnation, the

18

government is required to maintain some contractual,

regulatory, or ownership control or oversight to ensure

accountability of the continued public use, and, thus, pass

public use constitutional muster. In the instant case, the

Connecticut Court found that the City retained account-

ability and oversight because of the “contractual con-

straints in place to assure that private sector participants

will adhere to the provisions of the development plan,”

which was to be in effect for thirty years. 842 A.2d at 545.

Implementation and consistency with a comprehensive

development plan has recently been determined to be a

valid and important exercise of the police powers by this

Court. Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 535 U.S. 302 (2002).

1. Regulatory Control.

The continued government control and accountability

in Kelo is starkly different from the lack of government

oversight in Southwestern Illinois Development Authority

v. Natl City Environmental L.L.C., 768 N.E.2d 1 (Ml.

2002). SWIDA had condemned private property in order to

convey it to the owner of a racetrack to permit such owner

to expand the racetrack’s private parking facilities. The

condemnation was not undertaken as part of a redevelop-

ment plan, and SWIDA had no authorized land use con-

trol; instead, once the property was condemned it was

simply conveyed to the racetrack owner. There was no

public oversight or control and the exercise of eminent

domain did not result from SWIDA’s “economic and plan-

ning process.” Jd. at 10. Thus, it was held to be a taking

solely for a private purpose.

19

Many courts have already incorporated this regula-

tory control test in their analyses of public use claims. See

Condemnation of 110 Washington Street, 767 A.2d 1154

(Pa. Commw. Ct. 2001) (where condemnor is stripped of all

power of regulatory approval, even the power to determine

whether and when the condemnation occurs, the condem-

nation is invalid); Blanchard v. Dept. of Transportation,

798 A.2d 1119 (Me. 2002) (condemnation for parking lot

was a public use where town has retained regulatory

control over the private operator and has right to assert

control at any time); Manufacture? Housing Communities

of Washington v. State of Washington, 13 P.3d 183 (Wash.

2000) (statute which gave mobile home park tenants right

of first refusal, and took away such right from owner, was

a taking even though it would benefit members of the

public, because it would vest private property rights in

individual mobile park home owners, to the exclusion of all

others where there was no regulatory governmental

control); Casino Redev. Authority, 727 A.2d at 110-11

(there is no public use if the “when, how, and if the prop-

erty is developed in the future will be outside the control of

[the government] ... ”).

2. Ownership Control.

Secondly, many governments today enter into a myriad

of projects with joint ownership of transit stations, master

planned communities, and other transportation corridor

centers to promote economic development with walkable

neighborhood mixed residential and non-residential uses

which promote reduction in air quality degradation due to

fewer and shorter trips and corresponding health benefits.

See Michael S. Bernick and Amy E. Freilich, TRANSIT

VILLAGES AND TRANSIT BOARD DEVELOPMENT: THE RULES

20

ARE BECOMING MORE FLEXIBLE - HOW GOVERNMENT CAN

WorK WITH THE PRIVATE SECTOR TO MAKE IT HAPPEN. 30

Urb. Law. 1 (1990). Similarly, government can preserve

public use by requiring that affected landowners be

authorized to participate in the project provided they

comply with the adopted plan. Huntington Park Redevel-

opment Agency v. Duncan, 190 Cal. Rptr. 744 (Cal. App.

1983), cert. denied, 464 U.S. 895 (1983). See also Township

of West Orange v. 769 Associates, L.L.C., 800 A.2d 86 (N.J.

2002) (condemnation of property was for a public use

where municipality retains ownership and the road

remains open to the public).

3. Contractual Control.

Thirdly, contractual control over the project to ensure

compliance with stated plan goals and objectives will insure

public use. Such a principle is evident in the case of land use

development agreements, entered into between a local

government and a developer in connection with the proposed

development of property. Development agreements, author-

ized by state law to protect the developer against subsequent

changes in the law and to provide the city or county with

assurance of compliance with plan goals and objectives, do

not contract away a government’s police power as long as the

development agreement preserves the local government’s

ability to control the issuance of permits and to regulate land

use, i.e., as long as the government does not surrender or

abnegate a governmental function. Santa Margarita Area

Residents Together v. San Luis Obispo County, 84 Cal. App.

4th 221, 232 (2002): Morrison Homes Corp. v. City of Plea-

santon, 58 Cal. App. 3d 724, 734 (1978).

¢

21

CONCLUSION

Amici request this Court to retain the rational basis

test for judicial review of public use for condemnations for

economic development, redevelopment and revitalization

of cities. Should the Court deem it necessary to provide a

standard or guidance for such review, then the provision of

regulatory, ownership or contractual control by the state or

local governmental authority should suffice to meet Fifth

Amendment public use requirements.

Respectfully submitted,

ROBERT H. FREILICH*

ROBIN A. KRAMER

FREILICH, LEITNER & CARLISLE

4435 Main Street

Kansas City, MO 64111

(816) 561-4414

*Counsel of Record