# Amicus Curiae Brief — Kelo v. New London > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0031%3A39 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 - **Citation:** 545 U.S. 469 ## Text y a (er) a —_ No. 04-108 In The Supreme Court of the United States SUSETTE KELO, &7 AL., Petitioners, Vv. City OF NEW LONDON, AND NEW LONDON DEVELOPMENT CORPORATION, Respondents. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT BRIEF OF AMICI CURIAE THE NATIONAL ASSOCIATION OF HOME BUILDERS AND THE NATIONAL ASSOCIATION OF REALTORS® IN SUPPORT OF THE PETITIONERS JOHN J. DELANEY MARY LYNN PICKEL* Of Counsel National Association of 7200 Wisconsin Ave., Ste. 800 Home Builders Bethesda, MD 20814 1201 15" Street, N.W. (301) 961-5115 Washington, D.C. 20005 (202) 266-8200 LAURENE K. JANIK RALPH W. HOLMEN National Association of REALTORS® 430 N. Michigan Ave. Chicago, IL 60611 (312) 329-8200 Counsel for Amici *Counsel of Record TABLE OF CONTENTS INTERESTS OF THE AMICT CURITAE 000000... eccceccccecccesesessseeeees | SUMMARY OF THE ARGUMENT .......00.. 0. eeeceeceeseeeeeenees 4 UTITETIITIIITTTE axeenincioianetisannendninaneaitinmendedtunidanuneteiimiiisissineebideness 4 THERE NEED NOT BE A BRIGHT-LINE TEST FOR PUBLIC-PRIVATE TAKINGS, BUT CAREFUL JUDICIAL REVIEW OF GOVERNMENT ACTION IS ETE IAs oxiisionsircnenindnsnbvanineniipccsinnieainntiinisinidedeesmenieniaainnedebieonevn 4 A. Berman and Midkiff represent extraordinary circumstances which are not applicable to modern economic development situations. .................cccccccceeeeeeees 5 i. In Berman and Midkiff, the focus of this Court shifted from the public nature of the proposed future project to the eradication of a current IY eovensinincitemanensnmniiennieininintetbiaidinnanetes 6 ii. The two cases do not anticipate public uses being justified by local legislative bodies. .................cccceee 8 iii. If the legislative deference afforded by this Court in Berman and Midkiff is extrapolated to all non- blight economic development situations like Kelo, then the public use clause becomes irrelevant............ 11 B. This Court needs to review most public-private condemnations with a higher level of scrutiny.............. 15 1. CONCLUSION i TABLE OF CONTENTS cont. The clear and convincing evidence standard of review for cases with significant private interest makes the most sense at this time in view of all of the facts and circumstances of this case. ................... In reviewing the evidence presented by the government, this Court should balance several factors to determine whether a taking is for a BUDUC OF PIVEED UBB.......00.ccrcsesescesensessossesosssosensonessenens ©. Entent OF CORB SIIIIOR .....0cccscccesssesescesenssssonnninnnnn b. Feasibility of Proposed Development.................. c. Government Accountability to the Public ........... While most public-private | condemnation situations require heightened scrutiny, blight and collective action cases practically may be held to a ROSBOP GRIIREII, .acc 843 A.2d at 545. 27 project and attempt to sell the condemned property outright for any other private use. A few months after the lower court’s decision was issued, a searching review of this very issue was conducted by the Supreme Court of Michigan in County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004). On a strikingly similar fact pattern to the case at hand, the Michigan Supreme Court found that the condemnor: intends for the private entities purchasing defendants’ properties to pursue their own financial welfare with the single-mindedness expected of any profit-making enterprise. The public benefit arising from the Pinnacle Project is an epiphenomenon of the eventual property owners’ collective attempts at profit maximization. No formal mechanisms exist to ensure that the businesses that would occupy what are now defendants’ properties will continue to contribute to the health of the local economy. Finally, there is nothing about the act of condemning defendants’ properties that serves the public good in this case. The only public benefits cited by plaintiff arise after the lands are acquired by the government and put to private use. Thus, the present case is quite unlike Slum Clearance because there are no facts of independent public significance (such as the need to ~~ health and safety) that might justify the condemnation of defendants’ lands. Hathcock, 684 N.W.2d at 784 (emphasis in original). 28 iii. While most public-private condemnation situations require heightened scrutiny, blight and collective action cases practically may be held to a lesser standard. While the amici advocate an intermediate level of judicial review for those condemnations wherein a transfer of property interest such that a private party will maintain primary ownership, control, or jurisdiction over the property, it also recognizes the impracticality of application of a heightened scrutiny by the courts in two situations. While the most common standard of review for blight cases has been abuse of discretion, a higher standard has been used by a few courts in blight situations.” Amici concede that there is little need to apply a higher level of scrutiny to plans for slums or blighted areas. Amici do not question the case law _ supporting blight redevelopment from Berman forward and the well established deference to the state legislatures as to blight statutes. While clearly the case before this Court does not address a blighted property, it is necessary to distinguish this particular type of redevelopment statute from any other °° “The trend in states where many cases have reached the appellate level 1s that the standard of review tends to change from the more deferential standard of arbitrary and capricious behavior to the less deferential standard of clear error. In the clear error standard, ‘substantial evidence,” as prescribed by statute, must be presented as evidence for the findings of the redevelopment agencies or local governments.” Hudson Hayes Luce, The Meaning of Blight: A Survey of Statutory and Case Law, 35 Real Prop. & Tr. J. 389, 412 (2000). 29 for the judicial review of public-private takings outlined herein to be most effective. : The Michigan Supreme Court in County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), attempted to capture this concept with its term “facts of independent significance”’’ to support selection of a particular property for condemnation. While the attempt is reasonable, relying on a legislature, especially a local one, to determine “facts of independent significance” is tantamount to endorsing creative writing to justify condemnations. This Court should narrowly limit the exception to the intermediate scrutiny level of review to cases wherein eradication of slums or blight, as defined by federal or state law, is the object. * s! Second, it is obvious that there are condemnations with significant private benefit, but without a particular condemnation scheme, the project would be infeasible. For example, railroad tracks inherently must run in a straight line and require easements from many adjacent property owners as part of a large plan for condemnation. The court in Hathcock described these cases as “public necessity of the extreme sort requir[ing] collective action.””” Amici agree that it would be efficient for courts to allow legislative deference for collective actions of this sort. ” Hathcock, 684 N.W.2d at 783 (the court defined the phrase as meaning that the underlying purposes for resorting to condemnation, rather than the subsequent use of condemned land, must satisfy the Constitution's public use requirement). ** 684 N.W.2d at 783. 30 Amici concede that it is conceivable that either of these situations could be stretched or abused by a local government. However, it is presupposed that the courts would maintain an abuse of discretion or clear error standard for these two exceptions such that blatant abuses would not go unchecked. CONCLUSION The National Association of Home Builders and the National Assouiation of REALTORS” respectfully request that this Court reverse the ruling of the Connecticut Supreme Court and determine that legislative deference generally is not a proper standard of review for condemnations involving significant private interests, especially those with economic development as the sole justification. DATED: December 3, 2004 Respectfully submitted, Mary Lynn Pickel* National Association of Home Builders 1201 15" Street, NW Washington, D.C. 20005 *Counsel of Record for Amici Curiae Laurene K. Janik John J. Delaney Ralph W. Holmen Of Counsel National Association of 7200 Wisconsin Ave., Ste. 800 REALTORS® Bethesda, MD 20814 430 N. Michigan Ave. Chicago, IL 60611 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0031%3A39. Public record. Not legal advice.