# Amicus Curiae Brief — Kelo v. New London

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0031%3A29

## Record

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

## Text

——" !

-
~

—*- | 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0031%3A29. Public record. Not legal advice.