Amicus Curiae Brief — Kelo v. New London

(15 eriLEO

No. 04-108 Dre 32004

0 CE CLERK

IN THE

Supreme Court of the United States

SUSETTE KELO, et ai.,

Petitioners,

v.

CITY OF NEW LONDON, CONNECTICUT, et al.,

Respondents.

On Writ oF CERTIORARI TO THE

SUPREME Court OF CONNECTICUT

BRIEF AMICI CURIAE OF LAURA B. KOHR AND

LEON P. HALLER, ESQUIRE, TRUSTEE, OWNERS OF

LAUXMONT FARMS, IN SUPPORT OF PETITIONERS

ELIZABETH U. WITMER JoeL R. Burcat

Joun C. SNYDER Counsel of Record

SauL Ewinc LLP SHONU V. McEcHRON

1200 Liberty Ridge Drive SauL Ewinc LLP

Suite 200 2 North Second Street

Wayne, PA 19087 7® Floor

2 (610) 251-5062 Harrisburg, PA 17101

(717) 257-7506

Counsel for Amici Curiae

191246 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

io woe

i

QUESTION PRESENTED

Amici curiae will address the following question:

WHETHER IN CONDEMNATION ACTIONS THE

COURTS SHOULD VERIFY STATEMENTS BY

LEGISLATIVE BODIES THAT A PARTICULAR USE

OF THE CONDEMNED PROPERTY IS A “PUBLIC

USE” IN ORDER TO GUARANTEE FEDERAL

CONSTITUTIONAL RIGHTS OF THE PROPERTY

OWNER.

il

TABLE OF CONTENTS

QUESTION PRESENTED ..cccccccccccssenunn

TABLE OF CONTENED .ccccscsessuneenennee

TABLE OF CITED AUTHORITIES ............

IDENTITY AND INTEREST OF AMICI CURIAE ..

SUMMARY OF THE ARGUMENT ............

ARISUDEENT ..0ccccccccsecses eee

IN CONDEMNATION ACTIONS, THE

COURTS SHOULD VERIFY STATE-

MENTS BY LEGISLATIVE BODIES THAT

A PARTICULAR USE OF THE CON-

DEMNED PROPERTY IS A“PUBLIC USE”

IN

ORDER TO GUARANTEE THE

FEDERAL CONSTITUTIONAL RIGHTS

OF THE PROPERTY OWNER. ..........

A.

The Courts — not the Legislatures — are

the Protectors of Federal Constitutional

NB. 0. ccc ccnccccessenne

Because the Concepts of “Fairness and

Justice” Underlie the Takings Clause,

Those Concepts Should Guide the Court

in Determining Whether a So-Called

“Public Use” is Consistent with Federal

Constitutional Rights. ..............

Page

iV

1]

iil

Contents

C. This Court Should Apply Reduced

Deference to Determinations of “Public

Use” Consistent With the Test Applied

Under the Contract Clause to Takings of

Non-Blighted Property. .............

Berman (and its Progeny) and Kelo

Unnecessarily Defer to the Legislature

for Determining Whether a “Public Use”

Determination is Constitutional. .....

TT peeeubeedlasoccencceccccccecs

Page

17

iv

TABLE OF CITEDAUTHORITIES

~ Page

FEDERAL CASES

Andrus v. Allard, 444 U.S. 51, 62 L. Ed. 2d 210

SEUVER 400 cecest cignecescdeaseeceueeuenved 15

Armstrong v. United States, 364 U.S. 40, 4 L. Ed. 2d

SOD 6k cddbeccenasesueesecksanahont ll

Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27 (1954)

suvaneentadnae tee 9, 12, 13, 17, 18, 19, 21, 24

Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S.

oF FS Ff fo FR, eee 8

Brown v. Bd. of Educ. of Topeka, 347 U.S. 483,

FD te Es ED onc eT adasdnacecdnaeese 6

Bush v. Gore, 531 U.S. 98, 148 L. Ed. 2d 388 (2000)

00 606sendeaeunes sebaeuueeseuunalesanaes 7,8

California v. Grace Brethren Church, 457 U.S. 393,

Fe is Ee a ED 0060 hb csceseeisseekads 5

Dent v. West Virginia, 129 U.S. 114, 32 L. Ed. 623

SEED sv oGuséenncinncsnsnessoncdubsenencs 6

Eastern Enterprises v. Apfel, 524 U.S. 498, 141

he Ge Pe EEE coccveccocenscscbunneds 15

Vv

Cited Authorities

Page

Energy Reserves Group, Inc. v. Kansas Power &

Light Co., 459 U.S. 400, 74 L. Ed. 2d 569 (1983)

nGeeduheceseeascesnverdbaceeepeckaueant 17, 18, 20

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County, 482 U.S. 304,

Oe Eee Ee URED EREEED cccccccacecccnsscces 7,8

Greene v. McElroy, 360 U.S. 474, 3 L. Ed. 2d 1377

SEED cecvecevucuneceecencesescosensesen 6

Harris v. Reed, 489 U.S. 255, 103 L. Ed. 2d 308

SD bhcccensasaccenecéceséedéuecuéenees 6

Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229,

81 L. Ed. 2d 186 (1984) ..........60..0.. 13, 14, 21

Hodel v. Virginia Surface Mining & Reclamation

Assn., 452 U.S. 264, 69 L. Ed. 2d 1 (1981) .... 8-9

Hurley v. Kincaid, 285 U.S. 95, 76 L. Ed. 637 (1932)

péncccecececetauédecesesduceesduoeeénenn 9

Johnson v. Avery, 393 U.S. 483, 21 L. Ed. 2d 718

SE eee cccecnvetasestdctunécccuwdénctes 5

Lee v. Washington, 390 U.S. 333, 19 L. Ed. 2d 1212

SE Sc ccccutdesobseccccecosteouetocadens 5

Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 120 L. Ed. 2d 798 (1992) .............. 22

vi

Cited Authorities

Page

Monongahela Nav. Co. vy. United States, 148 U.S.

es Oe ee SP sce rbddusibsecuusns 7,9

Nat'l R.R. Passenger Corp. v. Boston & Maine Corp.,

$03 U.S. 407, 118 L. Ed. 2d 52 (1992) ........ 14

Overton v. Bazzetta, 539 U.S. 126, 156 L. Ed. 2d

ED adidvavekidavenshdndueduekaaneen 5

Palazzolo v. Rhode Island, 533 U.S. 606, 150

be es ED cubs cankebananesieeceas 11

Penn Central Transp. Co. v. City of New York,

438 U.S. 104, 57 L. Ed. 2d 631 (1978) ...... 7, 11, 12

Perry v. United States, 294 U.S. 330, 79 L. Ed. 912

SE bc dedddusesceseeeekderbeubnsenarkke 19

Seaboard Air Line Ry. Co. v. United States, 261 U.S.

ee Bs Ss ED oc ncnccocsceéuesee: 7

Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067

DE okehuenedepusebaseueedsades kuna chu 5

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l

Planning Agency, 535 U.S. 302, 152 L. Ed. 2d

DEP UED acunnubeddrawévasswsennsnsecals 11,12

TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S.

445, 125 L. BG. 36 SEG (IDSS) .. cc cccccccces 6

a NE I IT I

— Wii

Cited Authorities

Page

United States v. Jones, 109 U.S. 513, 27 L. Ed. 1015

SEED wccevscceccusecesevscosevseesneness 9

United States Trust Co. v. New Jersey, 431 U.S. 1,

Fe FF fg, FP 17, 18, 19

Williamson County Reg’! Planning Comm'n v.

Hamilton Bank, 473 U.S. 172, 87 L. Ed. 2d 126

ERED cavccsvevectsscesénesdsnstiacbeeses 8

Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935

SOE sncecccntncsecbectédesnsnecnnaddadnc 5-6

STATE CASES ;

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

684 N.W.2d 765 (2004) ......... 0c cece eeees 8, 24

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

PED cccossoses eunewdes 19, 20, 21, 22, 23, 24

UNITED STATES CONSTITUTION

U.S. Const. amend. V (Takings Clause)......... passim

U.S. Const. art. 1, § 10 (Contract Clause) ........ 17

vili

Cited Authorities

MISCELLANEOUS AUTHORITIES

I a

Gideon Kanner, Developments in the Right-To-Take

Law: Is the End of the Redevelopment Scam

Coming?, Eminent Domain and Land Valuation

Litigation, ALI-ABA Course of Study Materials

SG059, American Law Institute (Jan.2002) .....

Jennifer J. Kruckeberg, Can Government Buy

Everything?: The Takings Clause and the Erosion

of the ‘Public Use’ Requirement, 87 Minn. L. Rev.

PEED 966464546 cnc cededdenoeaseutes

Ralph Nader & Alan Hirsch, Making Eminent

Domain Humane, 49 Vill. L. Rev. 207 (2004) ..

Page

9-10

10

10

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IDENTITY AND INTEREST OF AMICI CURIAE

Pursuant to Rule 37 of the Rules of this Court, Laura B.

Kohr and Leon P. Haller, Esquire, Trustee as owners of

Lauxmont Farms, respectfully submit this Brief Amici Curiae

in support of petitioners.' This Brief is filed with the parties’

written consent.

In 1973, Ronald C. and Laura B. Kohr (“Kohr Family”)

purchased about 1,400 acres of land in Lower Windsor

Township, York County, Pennsylvania. The property was

named Lauxmont Farms and it has been continuously used,

in particular, to breed, raise and board horses. In 1989, the

Kohr Family filed for bankruptcy protection under Chapter

11 of the Bankruptcy Code. Ronald C. Kohr has since died.

The Kohr Family Chapter 11 bankruptcy is now closed and

unsecured creditors are being paid 100% of their claims

pursuant to the confirmed plan of reorganization. The Kohr

land — Lauxmont Farms — remains under the administration

of Bankruptcy Trustee, Leon P. Haller. (For purposes of this

Brief, Mr. Haller, as Bankruptcy Trustee, is also included

within the definition of “Kohr Family.”) Since 1973, the Kohr

Family has sold some of their land and today the Kohr Family

owns about 900 acres of land.

Lauxmont Farms is unusually beautiful. Located on the

steep western shore of the Susquehanna River, it has a

majestic overlook of the river that goes for miles. One small

area of Lauxmont Farms contains archaeological remains of

1. No_party or counsel for a party to this case authored this

Brief in whole or in part, and no person or entity other than amici

curiae, its members, or its counsel has made a monetary contribution

to the preparation or submission of this Brief.

2

an Indian village. The Farm has been used traditionally for

breeding, raising and boarding horses. It also is used for the

breeding of cattle. More recently the Kohr Family has

transformed a portion of Lauxmont Farms into a reception

center at which weddings and other functions take place.

The Kohr Family has proposed developing approximately

300 acres of excess land at Lauxmont Farms (not including

the archaeological site). As a result of this proposed

development, the Kohr Family has applied for approval of

its subdivision plans from the local Township authorities.

The subdivided parcel would then be sold by the Trustee to

fully implement the reorganization plan.

The response from York County has been to threaten to

utilize state and federal “economic stimulus” funds to

condemn a larye portion of Lauxmont Farms and to turn that

into a public park. The park would encompass 915 acres

(including land »wned by others). York County has not

conducted any study to assess the need for an additional park.

Instead, the Commonwealth of Pennsylvania has committed

to funding the project with “economic stimulus” grants.

Paradoxically, the so-called economic stimulus would have

just the opposite effect, by taking land off of the tax roles,

making the remainder useless for economically viable

agricultural use and significantly reducing the value of the

Kohr Family holdings. if permitted to proceed, the Kohr

Family believes it will lose significant value based on the

limited agricultural value of its land versus the developed

value of its land. Furthermore, it believes that any review by

a court of the “public use” alleged by the county government

will be cursory at best under the current legal standard.

To further comnound the situation, York County is

contemplating concemning an 80-acre parcel formerly owned

3

by the Kohr Family known as “Highpoint” (which currently

is owned by a developer named Peter Alecxih). It is believed

that York County would rely again on “economic stimulus”

grants from the Commonwealth to fund this land grab.

Because it is intensely interested in ensuring that any

declaration of “public use” made by a condemning authority

be subject to thorough judiciai review and because it is a

property owner whose land may be subject to a condemnation

that claims there is a “public use” associated with the taking,

the Kohr Family believes that its perspective will aid this

Court in considering this case.

SUMMARY OF THE ARGUMENT

This Court has held that it is the obligation of the courts,

in particular the Federal Courts, to protect the Federal

Constitutional rights of individuals against governmental

action. With respect to condemnations and takings, it is clear

that the Federal Courts protect the property rights of

individuals against the government. Regarding the Takings

Clause, this Court said it most succinctly when it stated that

“courts, not the legislature, are ultimately enirusied with

assuring compliance with constitutional commands.”

The Supreme Court has recognized in a number of

takings cases that “[t]he concepts of ‘fairness and justice’

... underlie the Takings Clause. . . .” “Fairness and justice”

is one way of stating that the courts must review the actions

of legislative bodies when they act under the Takings Clause.

If the courts do not have this role, then “fairness and justice”

is nothing more than a platitude. Given this Court’s repeated

statements thai the Takings Clause is governed by “fairness

and justice,” and given that nothing in the cases remotely

4

implies that it is for the legislative or executive branches to

decide that fairness and justice have been achieved, the only

logical conclusion is that the courts decide when the

legislature has acted in a manner consistent with fairness and

justice.

This Court should acknowledge, as it has with cases

under the Contract Clause, that blind deference to legislative

determinations of public purpose is not always appropriate.

As in cases where the state itself is a contracting party, the

state has a significant self-interest which is at stake when

the state is proposing to take non-blighted, economically

viable and productive land for the purpose of economic

development. In such cases, a less deferential standard of

review ought to apply.

The Berman standard fails to adhere to the ordinary

level of review for the protection of Constitutional rights.

The Berman standard fails to adhere to the general level of

review afforded for the protection of rights under the Takings

Clause. The Berman standard is neither fair nor just and in

this case, and others dealing with non-blighted property, the

Court should revise that standard. Because Kelo relies

extensively on Berman, this Court should reverse Kelo.

5

ARGUMENT

IN CONDEMNATION ACTIONS, THE COURTS

SHOULD VERIFY STATEMENTS BY LEGISLATIVE

BODIES THAT A PARTICULAR USE OF THE ._

CONDEMNED PROPERTY IS A “PUBLIC USE” IN

ORDER TO GUARANTEE THE FEDERAL CONSTI-

TUTIONAL RIGHTS OF THE PROPERTY OWNER.

A. The Courts — not the Legislatures — are the

Protectors of Federal Constitutional rights.

On numerous occasions this Court has held that it is the

obligation of the courts, in particular the Federal Courts, to

protect the Federal Constitutional rights of individuals against

governmental action.’ This is true not only in criminal or

prisoner cases, but in all types of cases where administrative

and regulatory actions were under scrutiny.’ Justice Stevens

2. Overton v. Bazzetta, 539 U.S. 126, 138, 156 L. Ed. 2d 162,

174 (2003) (Stevens, J. concurring) (“[W]hen a prison regulation or

practice offends a fundamental constitutional guarantee, federal

courts will discharge their duty to protect constitutional rights.”);

Johnson v. Avery, 393 U.S. 483, 21 L. Ed. 2d 718 (1969) (protection

of the constitutional rights of prisoners to petition the government

for redress of grievances); Lee v. Washington, 390 U.S. 333,

19 L. Ed. 2d 1212 (1968) (protection of prisoners from invidious

racial discrimination under the Equal Protection Clause of the

Fourteenth Amendment).

3. California v. Grace Brethren Church, 457 U.S. 393, 417 n.37,

73 L. Ed. 2d 93, 112 n.37 (1982) (citing Stone v. Powell, 428 U.S.

465, 494 n.35, 49 L. Ed. 2d 1067, 1088 n.35 (1976)) (stating federal

courts ave constitutionally obligated to safeguard personal liberties

and to upliold federal law); Wolff v. McDonnell, 418 U.S. 539, 557,

(Cont'd)

6

perhaps said it best when he stated, “[i]n my opinion, the

federal courts— and particularly this Court— have a primary

obligation to protect the rights of the individual that

are embodied in the Federal Constitution.” Harris v. Reed,

489 U.S. 255, 267, 103 L. Ed. 2d 308, 320 (1989) (Stevens,

J. concurring). Although the degree of scrutiny may vary from

Constitutional right to right, it is clear that the courts, aod

primarily the Federal courts, have the obligation of protecting

the Constitutional rights of citizens. It is recognized, however,

that owing to the vast number of cases that are filed and the

limited number of cases that physically could-beteviewed

by the Supreme Court, this Court “rel[ies] primarily on state

courts to fulfill the constitutional role as primary guarantors

of federal rights. ... Unfortunately, such review [that is

faithful to the letter of the Constitution and cognizant

of the principles underlying it] is not always forthcoming.”

TXO Prod. Corp. v.-Alliance Res. Corp., 509 U.S. 443, 499,

125 L. Ed. 2d 366, 406 (1993) (O’Connor, J., dissenting).

Nevertheless, it is the responsibility of the Federal Courts,

in particular, to guarantee the Federal Constitutional rights

of citizens.

(Cont'd) teens

596, 41 L. Ed. 2d 935, 968, 974 (1974) (citing Greene v. McElroy,

360 U.S. 474, 496-97, 3 L. Ed. 2d 1377, 1391 (1959)) (treating a

person’s liberty as equally protected, even when the liberty itself is a

statutory creation of the state, and holding that the touchstone of due

process is protection of the individual against arbitrary government

action); Dent v. West Virginia, 129 U.S. 114, 124, 32 L. Ed. 623, 626

(1889) (the definition of due process of law includes securing a citizen

against arbitrary legislative power); see Brown v. Bd. of Educ. of

Topeka, Shawnee County, Kan., 347 U.S. 483, 98 L. Ed. 873 (1954)

(protection of equal educational rights of minority children).

7

With respect to condemnations and takings, it is clear

that the Federal Courts protect the property rights of

individuals against the government. Monongahela Nav. Co.

v. United States, 148 U.S. 312, 327, 37 L. Ed. 463, 468 (1893)

The legislature may determine what private

property is needed for public purposes — that is a

question of a political and legislative character;

but when the taking has been ordered, then the

question of compensation is judicial. It does not

rest with the public, taking the property,

through congress or the legislature, its

representative, to say what compensation shall be

paid, or even what shall be the rule of

compensation. The Constitution has declared that

just compensation shall be paid, and the

ascertainment of that is a judicral inquiry.

Id. at 327, 37 L. Ed. at 468; see First English Evangelical

Lutheran Church of Glendale v. Los Angeles County, 482

U.S. 304, 316 n.9, 96 L. Ed. 2d 250, 264 n.9 (1987) (“[I]t is

the Constitution that dictates the remedy [of judicial review]

for interference with property rights amounting to a taking.”’);

Penn Central Transp. Co. v. City of New York, 438 U.S. 104,

151, 57 L. Ed. 2d 631, 665 (1978) (Rehnquist, J. dissenting)

(ascertainment of the amount that constitutes just

compensation is a judicial inquiry); Seaboard Air Line Ry.

Co. v. United States, 261 U.S. 299, 304, 67 L. Ed. 664, 669

(1923) (“[A]scertainment [of just compensation] is a judicial

function.”); see also Bush v. Gore, 531 U.S. 98, 115 n.1, 148

L. Ed. 2d 388, 405 n.1 (2000) (Rehnquist, C.J., concurring)

[O]ur jurisprudence requires us to analyze the

“background principles” of state property law to

8

determine whether there has been a taking of

property in violation of the Takings Clause. That

constitutional guarantee would, of course, afford

no protection against state power if our inquiry

could be concluded by a state supreme court

holding that state property law accorded the

plaintiff no rights.

Id. at 115 n.1, 148 L. Ed. 2d at 405 n.1. Thus, it is clear that

the Fifth Amendment requires that the courts — and not the

legislature — ultimately make the determination of the amount

of compensation that will be awarded under a condemnation.

With respect to compliance with the Takings Clause

(and perhaps all other Constitutional rights), this Court said

it most succinctly when it stated that “courts, not the

legislature, are ultimately entrusted with assuring compliance

with constitutional commands.” Blanchette v. Connecticut

Gen. Ins. Corp., 419 U.S. 102, 151 n.39, 42 L. Ed. 2d 320,

358 n.39 (1974). The reason for this particular protection of

property rights, as one court has recently called it, is these

rights are one of the “bedrock principles of our legal tradition:

the sacrosanct right of individuals to dominion over their

private property.” County of Wayne v. Hathcock, 471 Mich.

445, 450, 684 N.W.2d 765, 769 (2004).

The Takings Clause is a mere twelve words: “nor shall

private property be taken for public use, without just

compensation.” U.S. Const. amend. V. This Court has

repeatedly held that “this provision does not prohibit the

taking of private property, but instead places a condition on

the exercise of that power.” First English, 482 U.S. at 314,

96 L. Ed. 2d at 263; see Williamson County Reg’! Planning

Comm'n v. Hamilton Bank, 473 U.S. 172, 194, 87 L. Ed. 2d

126, 143-44 (1985); Hodel v. Virginia Surface Mining &

f

—me

9

Reclamation Assn., 452 U.S. 264, 297 n.40, 69 L. Ed. 2d 1,

29 n.40 (1981); Hurley v. Kincaid, 285 U.S. 95, 104, 76 L.

Ed. 637, 642-43 (1932); Monongahela Nav. Co., 148 U.S. at

336, 37 L. Ed. at 471; United States v. Jones, 109 U.S. 513,

518, 27 L. Ed. 1015, 1017 (1883). While this Court has

explicitly insisted that the courts determine what constitutes

“just compensation,” it nevertheless has deferred to the

legislature when determining what constitutes a “public use.”

Berman v. Parker, 348 U.S. 26, 32, 99 L. Ed. 27, 37 (1954)

(citations omitted)

Subject to specific constitutional limitations,

when the legislature has spoken, the public interest

has been declared in terms well-nigh conclusive.

In such cases the legislature, not the judiciary, is

the main guardian of the public needs to be served

by social legislation, whether it be Congress

legislating concerning the District of Columbia

or the States legislating concerning local affairs.

Id. at 32, 99 L. Ed. at 37. Thus in the space of the few words

of the Takings Clause, the Court has parsed the clause to

determine that both the courts are the guardians of the

Constitutional right to just compensatidn, and that it is the

legislature that determines whether a use constitutes a public

use.

The Court’s self-imposed dichotomy and parsing of the

Takings Clause admits of no consistency. Nothing in the

clause indicates why one determination is almost exclusively

for the courts, yet the other is almost exclusively for the

legislature. Commentators from across the political spectrum

have had a field day due to the inconsistency that is apparent

from this dual system of review. Compare Gideon Kanner,

Developments in the Right-To-Take Law: Is the End of the

10

Redevelopment Scam Coming?, Eminent Domain and Land

Valuation Litigation, ALI-ABA Course of Study Materials

SG059, American Law Institute at 25 (Jan. 2002)

Thus, the courts have evolved a Catch-22 system.

First they provide incentives to reckless exercise

of the eminent domain power by their extreme

laissez faire attitude when it comes to reviewing

whether the taking is consistent with the “public

use” constitutional limitation and the statutory

authorization to condemn. They also assert that

when it comes to fixing minimal standards of “just

compensation,” they are supreme.

Id. at 25; with Ralph Nader & Alan Hirsch, Making Eminent

Domain Humane, 49 Vill. L. Rev. 207, 208 (2004) (footnotes

omitted) (“The courts have come to interpret the ‘public use’

requirement in a way that renders it meaningless, essentially

giving governments carte blanche to take property for any

reason whatsoever, including crass political purposes or

speculative, transient economic purposes.”); see Jennifer J.

Kruckeberg, Can Government Buy Everything? : The Takings

Clause and the Erosion of the “Public Use” Requirement,

87 Minn. L. Rev. 543, 582 (2002) (“The modern treatment

of the public use requirement badly needs reform.”).

While it is entirely consistent with the jurisprudence of

this Court for courts to be designated as the arbiter of the

question of Just Compensation, it is completely inconsistent

for the courts to abdicate that responsibility on the question

of Public Use.

11

B. Because the Concepts of “Fairness and Justice”

Underlie the Takings Clause, Those Concepts

Should Guide the Court in Determining Whether

a So-Called “Public Use” is Consistent with

Federal Constitutional Rights.

The Supreme Court has recognized in a number of

takings cases that “the concepts of ‘fairness and justice’ . . .

underlie the Takings Clause. . . .” Tahoe-Sierra Pres. Council,

Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 336, 152

L. Ed. 2d 517, 548 (2002); see Palazzolo v. Rhode Island,

533 U.S. 606, 633, 150 L. Ed_2d 592, 617 (2001) (O’Connor,

J., concurring); see also Penn Central, 438 U.S. at 123-24,

57 L. Ed. 2d at 648; Armstrong v. United States, 364 U.S.

40, 49, 4 L. Ed. 2d 1554, 1561 (1960). Although Tahoe-Sierra

dealt with another aspect of the Takings Clause, namely a

regulatory taking, that does not diminish the principle stated

by this Court that “the concepts of fairness and justice

underlie the Takings Clause.” Indeed, it is axiomatic that the

concepts of fairness and justice should govern all aspects of

review of all claims under the Takings Clause. Certainly

nothing in the Takings Clause or in this Court’s jurisprudence

would suggest that “fairness and justice” ought to apply in

some cases under the Takings Clause, yet some other standard

should underlie other cases under the same clause.

As the Court identified in Penn Central, “this Court,

quite simply, has been unable to develop any ‘set formula’

for determining when ‘justice and fairness’ require that

economic injuries caused by public action be compensated

by the government, rather than remain disproportionately

concentrated on a few persons.” 438 U.S. at 124, 57 L.Ed.

2d at 648. The Court ruled that in making a determination of

“whether a particular restriction will be rendered invalid by

12

the government’s failure to pay for any losses proximately

caused by it depends largely ‘upon the particular

circumstances [in that] case.’” /d. (citations omitted). The

Court recognized that the determination that must be made

is an “essentially ad hoc, factual inquir[y].” Jd. With respect

to regulatory takings, the Court recently has endorsed the

requirement of “‘essentially ad hoc, factual inquiries,’ Penn

Central, 438 U.S. at 124, designed to allow ‘careful

examination and weighing of all the relevant circumstances.’

Palazzolo, 533 U.S. at 636. (O°CONNOR, J., concurring).”

Tahoe-Sierra, 535 U.S. at 322, 152 L. Ed. 2d at 540. Thus,

“fairness and justice” is one way of stating that the courts

must review the actions of legislative bodies when they act

under the Takings Clause. If the courts do not have this role,

then “fairness and justice” is nothing more than a platitude.

While the Court in Tahoe-Sierra acknowledged

significant differences between condemnations and physical

takings (with respect to which the Court stated that the

Court’s jurisprudence was “as old as the Republic”) and

regulatory takings, once again, nothing in the Clause admits

to anything less than the “fairness and justice” standard for

review for all cases under the Takings Clause. Jd. One area

of the Court’s jurisprudence that is not “as old as the

Republic” in condemnations cases is the question of the level

of review of a legislative determination off a “public use”

under the Takings Clause. Fifty years ago, in Berman v.

Parker, the Court set out a new standard of almost complete

deference to the legislature in which the legislative

determination of “public use” is “well-nigh conclusive.”

348 U.S. at 32, 99 L. Ed. at 37. In such cases, “[t]}he role of

the judiciary in determining whether that power is being

exercised for a public purpose is an extremely narrow one.”

13

Id. Subsequently, the Court further elucidated the role of the

courts in reviewing “public use” determinations:

There is, of course, a role for courts to play in

reviewing a legislature’s judgment of what

constitutes a public use, even when the eminent

domain power is equated with the police power.

But the Court in Berman made clear that it is ‘an

extremely narrow’ one. The Court in Berman cited

with approval the Court’s decision in Old

Dominion Co. v. United States, ... which held

that deference to the legislature’s “public use”

determination is required “until it is shown to

involve an impossibility.” The Berman Court also

cited to United States ex rel. TVA v. Welch, ...

which emphasized that “[any] departure from this

judicial restraint would result in courts deciding

on what is and is not a governmental function and

in their invalidating legislation on the basis of

their view on that question at the moment of

decision, a practice which has proved

impracticable in other fields.” In short, the Court

has made clear that it will not substitute its

judgment for a legislature’s judgment as to what

constitutes a public use “unless the use be palpably

without reasonable foundation.”

Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 240-42,

81 L. Ed. 2d 186, 197 (1984) (citations omitted).

This Court has recognized that the courts play the

preeminent role in determining whether a legislature has

properly determined that a use is consistent with the

Constitution. That role is limited to a determination of

14

whether the taking “is rationally related to a-conceivable

public purpose.” /d. at 240-41, 81 L. Ed. 2d at 198. Ina

subsequent condemnation case, this Court has asserted that

the condemnation power is constitutional “as long as the

condemning authorities were rational in their positions that

some public purpose was served.” Nat'l R.R. Passenger Corp.

v. Boston & Maine Corp., 503 U.S. 407, 422-23, 118 L. Ed.

2d 52, 69 (1992). In National Railroad Passenger Corp.,

the Court examined a statutory condemnation scheme that

transferred 48.8 miles of tract from one privately owned

railroad company to another. The Court made a superficial

~ examination (that is to say, it did not make “a specific factual

determination” /d.) of whether the ICC was “irrational” in

determining that the condemnation at issue would serve a

public purpose and determined that it did serve a public

purpose. On that basis, the Court held that this cursory review

“suffices to satisfy the Constitution, and we need not make a

specific factual determination whether the condemnation will

accomplish its objectives.” Jd.

In a regulatory takings case, a plurality of this Court

directly equated the justice and fairness requirement as

requiring a review, presumably by a court, of governmental

action:

Government regulation often “curtails some

potential for the use or economic exploitation of

private property,” ... and “not every destruction

or injury to property by governmental action has

been held to be a ‘taking’ in the constitutional

sense,” ... In light of that understanding, the

process for evaluating a _ regulation’s

constitutionality involves an examination of the

“justice and fairness” of the governmental

oe

— ee

15

action. . . That inquiry, by its nature, does not lend

itself to any set formula, . . . and the determination

whether ‘justice and fairness’ require that

economic injuries caused by public action [must]

ec nsated by the government, rather than

remain disproportionately concentrated on a few

persons,” is essentially ad hoc and fact intensive.

Eastern Enterprises v. Apfel, 524 U.S. 498, 523, 141

L. Ed. 2d 451, 470-71 (1998) (citations omitted) (per

O’Connor, J.).

In a somewhat earlier case, the Court again intimated

that the courts determined when a governmental action that

resulted in a take was fair and just:

The Takings Clause, therefore, preserves

governmental power to regulate, subject only to

the dictates of “‘justice and fairness.’” [Penn

Central, 438 U.S. at 124]; see Goldblatt v.

Hempstead, 369 U.S. 590, 594 (1962). There is

no abstract or fixed point at which judicial

intervention under the Takings Clause becomes

appropriate. Formulas and factors have been

developed in a variety of settings. See Penn

Central, supra, at 123-128. Resolution of each

case, however, ultimately calls as much for the

exercise of judgment as for the application of

logic.

Andrus v. Allard, 444 U.S. 51, 65, 62 L. Ed. 2d 210, 222

(1979). Giver this Court’s repeated statements that the

Takings Clause is governed by “justice and fairness,” and

given that nothing in the cases remotely implies that it is for

16

the legislative or executive branches to decide that justice

and fairness have been achieved, the only logical conclusion

is that the courts decide when the legislature has acted in a

manner consistent with justice and fairness.

It is hard, if not impossible, to justify the minimal review

afforded by the Court of the constitutionality of whether a

use is a “public use” when one compares that to the significant

level of review afforded of whether compensation is

“just compensation” — let alone the level of review provided

by the courts in the protection of other fundamental

constitutional rights. Unfortunately, the role currently allowed

by the Court to examine the constitutionality of public use

determinations is so narrow as to constitute virtually no role.

How can this negligible role square with the concepts of

fairness and justice? It cannot.

The Federal Courts cannot abdicate the important role

of reviewing the actions of the states whenever important

Federal constitutional rights are at stake. In order to guarantee

that fairness and justice play a role in all cases under the

Takings Clause — as the Court has stated on many occasions

— then it is logical that the Court should allow a thorough

judicial review of the legislative body’s determination that a

use meets the constitutional requirements for a public use.

That is not to say that the courts should make “public use

determinations,” only that the courts ought to carefully review

the legislative determination to insure that it meets the

requirements of the Federal Constitution. The only way that

the courts can ensure that there has been fairness and justice,

is for the courts to play an active role in reviewing the

determinations of the state legislatures.

17

C. This Court Should Apply Reduced Deference to

Determinations of “Public Use” Consistent With

the Test Applied Under the Contract Clause to

Takings of Non-Blighted Property.

To achieve fairness and justice when a court is reviewing

a taking of a non-blighted property by the exercise of eminent

domain for economic development, a reduced standard of

deference should be applied by the courts to the review of

any legislative determination that the taking is for a public

use and in the public interest. The exercise of police power

and of eminent domain has an outer limit, though the

Court has observed that the fact sensitive nature of such cases

make it “fruitless” to attempt to define that limit. Berman,

348 U.S. at 32, 99 L. Ed. at 37. Nonetheless, the Court should

acknowledge, as it has with cases under the Contract Clause,

U.S. Const. art. I, § 10, cl. 1, that blind deference to legislative

determinations of public purpose are not always appropriate.

Under the Contract Clause, this Court has held, “[as] is

customary in reviewing economic and social regulation, . . .

courts properly defer to legislative judgment as to the

necessity and reasonableness of a particular measure.””*

A different standard applies, however, when the sovereign is

itself a contracting party:

When the State is a party to the contract,

“complete deference to a legislative assessment

of reasonableness and necessity is not appropriate

because the State’s self-interest is at stake.”

4. Energy Reserves Group, Inc. v. Kansas Power & Light Co.,

459 U.S. 400, 412-13, 74 L. Ed. 2d 569, 581 (1983), quoting United

States Trust Co. v. New Jersey, 431 U.S. 1, 22-23, 52 L. Ed. 2d 92,

110 (1977).

18

Energy Reserves Group, Inc. v. Kansas Power & Light Co.,

459 U.S. 400, 412-13 n.14, 74 L. Ed. 2d 569, 581 n.14 (1983),

citing United States Trust Co. v. New Jersey, 431 U.S. 1, 26,

52 L. Ed. 2d 92, 112 (1977). As in cases where the state

itself is a contracting party, the state has a significant

economic self-interest which is at stake when the state is

proposing to take non-blighted, economically viable and

productive land for the purpose of economic development.

Under this circumstance a less deferential standard of review

ought to apply.

In Berman, the Court essentially declined to exercise any

analysis of the taking at issue, stating that “[s]ubject to

specific constitutional limitations, when the legislature has

spoken, the public interest has been declared in terms well-

nigh conclusive.” Berman, 348 U.S. at 32, 99 L. Ed. at 37.

Such complete deference to legislative determinations

involving non-blighted properties must end. In Berman, the

one property at issue was not blighted, but was in an area to

be condemned in which the majority of properties were

“beyond repair” and the character of the area was such that

the Court commented that:

Miserable and disreputable housing conditions

may do more than spread disease and crime and

immorality. They may also suffocate the spirit by

reducing the people who live there to the status

of cattle. They may indeed make living an almost

insufferable burden. They may also be an ugly

sore, a blight on the community which robs it of

charm, which makes it a place from which men

5. Berman v. Parker, 348 U.S. 26, 30, 99 L. Ed. 27, 36 (1954).

19

turn. The misery of housing may despoil a

community as an open sewer may ruin a river.

Id. That case was decided in 1954, at the vanguard of the

movement to redevelop blighted property in order to create

clean, safe public housing.

Today, the interests of the state in taking of non-blighted

property for economic development are not, in the main, in

preventing the spread of “disease, crime and immorality,”

but in increasing the tax base and providing jobs, as in Kelo,

or in preserving the aesthetics of an area for tourism, as in

Lauxmont Farms. The interests of the state in takings like

the one at issue in Ke/o and the threatened taking of Lauxmont

Farms are more analogous to those in Contract Clause cases,

where the interest of the state is purely financial. The more

stringent standard of review applied in such cases under the

Contract Clause was first articulated in United States Trust

Co., 431 U.S. at 26 n.25, 52 L. Ed. 2d at 112 n.25, which

harkened back to the cases involving the federal abrogation

of gold clauses in 1935 in which the Court drew a distinction

and applied a dual standard of review:

There is a clear distinction between the power of

the Congress to control or interdict the contracts

of private parties when they interfere with the

exercise of its constitutional authority, and the

power of the Congress to alter or repudiate the

substance of its own engagements when it has

borrowed money under the authority which the

Constitution confers.

Perry v. United States, 294 U.S. 330, 350-351, 79 L. Ed.

912, 917 (1935).

20

Similarly, there is a clear distinction between the taking

of property for economic or other development which is

blighted, an “ugly sore” suffocating the spirit and “reducing

the people who live there to the status of cattle,” and the

taking of property comprised of middle class neighborhoods

with proud property owners who happen to be in the path of

desirable developable land along waterfront targeted for

upscale redevelopment, as in Kelo, or valuable farm land

surrounded by ten acre mini-farmettes with mini-mansions

targeted for a tourist attraction as in the case of Lauxmont

Farms.

A reduced standard of deference, similar to that owed to

the state in Contract Clause cases in which the state is a party

should be applied to takings of non-blighted property for

economic development. The test under the Contract Clause

is whether the law or regulation at issue has in fact “operated

as a substantial impairment of a contractual relationship”;

if so, whether the state has a “significant and legitimate public

purpose” behind the law or regulation; and finally, if there is

a significant and legitimate public purpose, whether the

“adjustment of the rights and responsibilities of contracting

parties is based upon reasonable conditions and is of a

character appropriate to the public purpose justifying the

legislation’s adoption.” Energy Reserves, 459 U.S. at 411-

412, 74 L. Ed. 2d at 581 (internal quotation marks and

citations omitted).

The test that should be applied in the takings context

should be first for the court to determine whether the property

to be \aken is blighted. If the court determines the property

is not blighted, then it ought to decide whether the proposed

6. Id. at 32, 99 L. Ed. at 37.

ceersetmeeeenen ee ae

21

economic development or other justification for the taking

amounts to a significant and legitimate public purpose.

Finally, if the court determines that there is a significant and

legitimate public purpose, it should then decide whether the

scope of the taking is appropriate (i.e., whether the taking is

or ought to be an easement, fee, or some other interest in

land). By utilizing a less-deferential standard, the Court will

reasonably protect the constitutional rights of property

owners. Such a test would infuse “fairness and justice” into

a system in which this standard has been lacking for fifty

years.

D. Berman (and its Progeny) and Kelo Unnecessarily

Defer to the Legislature for Determining Whether

a “Public Use” Determination is Constitutional.

Since Berman v. Parker, the U.S. Supreme Court has

deferred to the statements of the legislature regarding whether

or not a particular use constitutes a public use. Berman and

its progeny, including Kelo v. City of New London, 268 Conn.

1, 843 A.2d 500 (2004), show unnecessary deference to the

legislature in determining that a condemnation constitutes a

public use.

The Connecticut Supreme Court in Kelo reviewed with

approval the language of Berman and Midkiff, and agreed

that the court should provide the most deferential review of

the City of New London’s determination that the proposed

use was a “public use.” Kelo, 268 Conn. at 36-38, 843 A.2d

at 525-26. The Kelo court, referring to state cases in addition

to Berman and Midkiff, held that “[b]oth federal and state

courts place an overwhelming emphasis on the legislative

purpose and motive behind the taking, and give substantial

22

deference to the legislative determination of purpose.”

On the basis of the (primarily) federal authority requiring

only limited review of the legislative determination, the court

found that the economic development asserted by the city

and a private redevelopment corporation as the “public use

determination” justifying the condemnation, “constitutes a

valid public use for the exercise of the eminent domain power

under both the federal and Connecticut constitutions.”

Kelo, 268 Conn. at 40, 843 A.2d at 528.

Nothing in Kelo indicates that the properties that were

condemned by the city and the private redevelopment

corporation were blighted. See id. at 5-11, 843 A.2d at

507-11. As the Kelo court itself stated, quoting the trial court,

“each of the plaintiffs testified and said they wished to remain

in their homes for a variety of personal reasons.” /d. at 11;

843 A.2d at 511. These reasons included that they and their

families had lived in their homes for decades, they

7. The court’s reference to the legislative statement of purpose

and motive call to mind this Court’s admonition:

In [the dissent’s] view, even with respect to regulations

that deprive an owner of all developmental or

economically beneficial land uses, the test for required

compensation is whether the legislature has recited a

harm-preventing justification for its action. Since such

a justification can be formulated in practically every

case, this amounts to a test of whether the legislature

has a stupid staff. We think the Takings Clause requires

courts to do more than insist upon artful harm-preventing

characterizations.

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1025 n.12,

120 L. Ed. 2d 798, 819 n.12 (1992) (emphasis added) (citation

omitted).

23

“loved their homes,” and other strongly personal reasons.

Id. The real reason for the condemnation was set out by the

court in the op ening sentence of its opinion and expressed

fairly clearly ‘ne issue it was seeking to resolve:

The principal issue in this appeal is whether the

public use clauses of the federal and state

constitutions authorize the exercise of the eminent

domain power in furtherance of a significant

economic development plan that is projected to

create in excess of 1000 jobs, to increase tax and

other revenues, and to revitalize an economically

distressed city, including its downtown and

waterfront areas.

Id. at 5, 843 A.2d at 507.

The Kelo dissent (in a 4-3 decision), authored by Justice

Peter T. Zarella, acknowledged that the requirement of

“judicial deference to determinations of public use by state

legislatures is appropriate.” /d. at 134, 843 A.2d at 581

(Zarella, J., dissenting). Nevertheless, the dissent advocated

that “judicial deference to legislative declarations of public

use does not require complete abdication of judicial

responsibility.” Jd. at 134-35, 843 A.2d at 582. The dissent

urged that “the taking of nonblighted property in a blighted

area is subject to additional scrutiny to determine

whether the taking is ‘essential’ to the redevelopment plan.”

Id. at 143, 843 A.2d at 587. Furthermore, “a heightened

standard of judicial review [should] be required to ensure

that the constitutional rights of private property owners are

protected adequately when property is taken for the purpose

of private economic development.” /d. The dissent took a

strong position that the record was lacking in support of the

24

taking of the plaintiffs’ properties and would have held the

takings unconstitutional. /d. at 268, 843 A.2d at 600.

The court in Kelo permitted a condemnation of

private property, in part, by a private redevelopment

corporation, that will benefit one set of private individuals

and which takes away private property from other

private individuals witl out significantly reviewing the

determination that the use was a “public use.” The court

merely defaults to the Berman standard regarding whether a

sufficient public purpose has been stated, saying it will

“give substantial deference to the legislative determination

of purpose.” /d. at 40, 843 A.2d at 527-28. The Berman

standard fails to adhere to the ordinary level of review for

the protection of Constitutional rights. The Berman standard

fails to adhere to the general level of review afforded for the

protection of rights under the Takings Clause. The Berman

standard is neither fair nor just. By limiting the review of

“public use” determinations, essentially, to the language

contained in the preamble of a condemnation or statute, this

Court denies the kind of review that ought to exist for this

“bedrock principle{] of our legal tradition: the sacrosanct

right of individuals to dominion over their private property.”

County of Wayne, 471 Mich. at 450, 684 N._W.2d at 769.

25

CONCLUSION

The judgment of the Supreme Court of Connecticut

should be reversed.

Respectfully submitted,

EvizapeTH U. WiTMER Joe. R. Burcat

Joun C. SNYDER Counsel of Record

Saut Ewmc LLP SHonu V. McEcHRon

1200 Liberty Ridge Drive Saut Ewinc LLP

Suite 200 2 North Second Street

Wayne, PA 19087 7* Floor

(610) 251-5062 Harrisburg, PA 17101

(717) 257-7506

Counsel for Amici Curiae