Amicus Curiae Brief — Kelo v. New London

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Sunes Me Court, t j Sy

No. 04-108 AN 9° 9nnr

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IN Tt tPK

Supreme Court of the United States

SUSETTE KELO. THELMA BRELESKY. PASQUALE CRISTOFARO,

WILHELMINA AND CHARLES DERY. JAMES AND LAURA

GURETSKY. PATAYA CONSTRUCTION LIMITED PARTNERSHIP,

AND W LLIAM VON WINKLE,

Petitioners.

Vv.

Ciry oF NEW LONDON AND

NEW LONDON DEVELOPMENT CORPORATION.

Respondents.

On Writ of Certiorari to the

Supreme Court of Connecticut

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

U.S. CONFERENCE OF MAYORS, COUNCIL OF STATE

GOVERNMENTS, NATIONAL ASSOCIATION OF

COUNTIES, INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION, AND INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION AS AMICI CURIAE

SUPPORTING RESPONDENTS

PiIMOTHY J. DOWLING RICHARD RUDA*

JENNIFER BRADLEY Chiet Counsel

COMMUNITY RIGHTS COUNSEI STATE AND LOCAL LEGAL

1301 Connecticut Ave.. N.W. CENTER

Suite 502 444 North Capitol Street, N.W.

Washington, D.C. 20036 Suite 309

(202) 296-6889 Washington, D.C. 20001

202) 434-4850

J. PETER BYRNI (202) 434-48

GEORGE TOWN UNIVERSITY * Counsel of Record tor the

LAW CENTER Amici Curiae

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

(202) 662-9066

WILSON-EPES PRINTING CO., INC (202) 789-0096 — WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether using eminent domain, with payment of just com-

pensation, to promote economic development in a depressed

local economy—thereby creating jobs, alleviating human

suffering, and otherwise promoting the public welfare—

constitutes a public use under the Fifth Amendment.

(i)

TABLE OF CONTENTS

Ne |)

pp eh

TT aiaiiisitiiseeinsanaenareesesenetercccecsccesccsccrscoeecoesces

ECONOMIC DEVELOPMENT IS A PUBLIC

USE UNDER THE FIFTH AMENDMENT .....

A. Longstanding Precedents Show that Eco-

nomic Development is a Public Use............

B. The Text, Structure, and History of the

Fifth Amendment Show that Economic

Development is a Public Use...................04..

_C. Petitioners’ Proposed Heightened Scrutiny

is Unprecedented and Unworkable..............

EXISTING STATE AND LOCAL PRO-

TECTIONS FOR PROPERTY OWNERS IN

EMINENT DOMAIN CASES REFLECT

THE APPROPRIATE DIVERSITY OF OUR

TNE ys ) | | | Er

EMINENT DOMAIN IS A VITAL ECO-

NOMIC DEVELOPMENT TOOL’ FOR

MANY COMMUNITIES. ..........cccccccccesseeeeeesenes

B. The Canton Success Story ...........::ccccccceeees

SITTIN ssesttendeicmencnesasceseneceesessosecscescevseccssccosceses

12

17

23

26

29

iv

TABLE OF AUTHORITIES

Cases Page

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

Board of Regents v. Roth, 408 U.S. 564 (1972)... 12

Brown v. Legal Found. of Wash., 538 U.S. 216

ET cscnscsscarscsetuiniimciiaehiaieiaaamaiaaeaaadiailaaaa 5

Charles River Bridge v. Warren Bridge, 36 U.S.

re i vccessstiniteitticscciisimairinanitaintanriiaaeipenaianin 6, 6-7

Clark v. Nash, 198 U.S. 361 (1905) .............0ceeeeee 12, 13

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

I, Sati i cncnceinsittiaicenitiennenennienacinantiasaimisaitants 14

Dolan v. City of Tigard, 512 U.S. 374 (1994)....... 1]

Fallbrook Irrigation Dist. v. Bradley, 164 U.S.

PEs Ce coreicsisilicsitsinssietiniindaiapaiinbiianntindsiipataanitaiaaias 5, 7,13

First English Evan. Luth. Church v. County of

Los Angeles, 482 U.S. 304 (1987) .......cccccceeeeees 5

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

REESE ITEP A SID He sete ow ae veceses passim

Head v. Amoskeag Mfg. Co., 113 U.S. 9 (1884) ...5, 12, 14

Keystone Bituminous Coal Ass'n v. DeBene-

dictis, 480 U.S. 470 (1987)........ccccccceseeeeteeeeneeees 5

Manufactured Housing Communities of .Wash-

ington v. State, 13 P.3d 183 (Wash. 2000)........ 14

Missouri Pacific Ry. Co. v. Nebraska, 164 U.S.

SP Grr ncenerencasensnicicnenennitainiianpiaaiiitinatianinniaiaies 7

National R.R. Passenger Corp. v. Boston & Me.

Can, FE ls Gar Ce Oe cccrsaninnneninns passim

Nollan v. California Coastal Comm'n, 483 U.S.

See crercnceceienpntatninteinienntinetsiiiiaiaidiabimuunintan 11

Pegram v. Herdrich, 530 U.S. 211 (2000) ............ 9

Pequonnock Yacht Club, Inc. v. City of Bridge-

port, 790 A.2d 1178 (Conn. 2002) 20.0.0... 16

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

CU crecicnsianmmnaniacnsnineaiaiacmmndnniesiaiaisiiiiemaaiaaianin 12

Ruckelshaus v. Monsanto Co., 467 U.S. 986

SERS Re Onrer ise mene a es Semen eee 5,8

Vv

TABLE OF AUTHORITIES

Page

Ryerson v. Brown, 35 Mich. 333 (1877)...........0..+. 14

Southwestern Ill. Dev. Auth. v. National City

Envil., L.L.C., 710 N.E.2d 896 (Ill. App. Ct.

1999), aff'd 768 N.E.2d 1 (Ill. 2002)................. 7

Strickley v. Highland Boy Gold Mining Co., 200

SORA: SE UTI cesiesneniinreninpscininiaieniioasitinaaiigiainamatietae 5,14

United States v. 564.54 Acres of Land, 441 U.S.

ee aeiitciiuniesiclptainaiidaiandiiiadtesiaisiaiieiuaniatiietd tintin 15

Statutes

National Environmental Policy Act, 42 U.S.C.

§ 4321 ef seq........ somainasnemaiinendiimaniiciedeitaiitiiaatetadiass 16

National Historic Preservation Act, 16 U.S.C.

SOD HI ccitsnsentdntennabibdntinnpaiietadieanesebanmscanidiaen 16

Department of Transportation Act, § 4(f), 49

aia UF STII ideiedishinsinenitaiishidintetattesenainmianiitiiiiniins 16

Conn. Gen. Stat. § 8-266 ef 8€q. .........cccccccceeeeeeeeees 16

Comm. Gam. Stat. § B-12S(B)....ccccccccccccccccceccccececesees 16

Other Authorities

Rick Alm, Learning From Past Mistakes Paved

Way for Kansas Speedway's Success, Kan.

eg eee 23, 24, 25

Alan Altshuler & David Luberoff, Mega-

Projects: The Changing Politics of Urban

Public Investment (2003 ).............0cccccsseeeeeeeseeeees 16

Cindi Andrews, Some in Norwood Fight to

Sell Homes, Cincinnati Enquirer, Oct. 11,

Associated Press, Loss of Manufacturing Jobs

Hits Milwaukee's Black Community Hard, St.

Paul Pioneer Press, Dec. 9, 2004 0000.0.....c.cccceeees 17

vi

TABLE OF AUTHORITIES

Associated Press. Loss of Manufacturing Jobs

Means a Makeover for. Baltimore, AP News-

SS Se

Shashank Bengali, Loss of Manufacturing Jobs

Cuts Especially Deep in Southwest Missouri

Town, Kan. City Star, Feb. 17, 2003 .................

Dana Berliner, Public Power, Private Gain

(Institute for Justice 2004)... eccceeeeeeeeee

Paul Blustein, On Pins and Needles: As Quotas

Expire, U.S. Textile Industry Braces for

Change, Wash. Post, Dec. 31, 2004 ............000

Reed Branson, Mississippi OKs $295 Million in

Incentives for Nissan, Commercial Appeal,

SUID, ip SET cccrensciietantnsennnsscenentsceiiieentineniasliianes

Colorado Municipal League, ef al., Urban

Renewal in Colorado (C. White ed., Sept.

a ccnccesccsnsnnsctinonmansennnsesesumeesnnnsssnssnnsessannss 19,

Randy Covitz, Track is Green Light for County;

Speedway Brings a lot to Wyandotte, Kan.

er I, GE, Gy Fi cccesccnnccssenensstenntennasnemnnens

Lance Dickie, NASCAR's Lucrative Lure; Is It

Right for the Northwest?, Seattle Times, Sept.

STAs aiieitesciesininideteinitdesenaniialtaindiiasinteanasitibaiiiaeainiiiiines

Bruce Fein, Eminent Domain, Eminent Nonsense,

Wash. Times, Oct. 12, 2006 ..........cccccccecsessessees

David Firestone, Black Families Resist Missis-

sippi Land Push, N.Y. Times, Sept. 10, 2001 ...

Dale Garrison, The Biggest Deals of the Past 30

Years, Ingram’s, Jan. 2004 ............cccseeeeseeeeeeees

Glimpse of the Future 2: Residents Describe

Plant's Massive Impact on Area, Montgomery

Advertiser, Aug. 22, 2006 ...........ceiscsersscssesseeees

17

18

20, 22

23, 24

Vil

TABLE OF AUTHORITIES

Matthew P. Harrington, “Public Use” and the

Original Understanding of the So-Called

“Takings” Clause, 53 Hastings L. J. 1245

GTEa i shcnicsictiessicabasionemsinsiniiuieiaitandainamsainiiapiaiuinidinieians

Brian Headd, Redefining Business Success:

Distinguishing Between Closure and Failure,

21 Small Bus. Econ. 51 (2003)...

Lynne Jeter, The Nissan Effect, a Better Mis-

sissippi All Around, Miss. Bus. J., June 23,

rn On Oe TE

Lynne Jeter, Driving Change: Nissan Adds

Punch to Region's Economy, Miss. Bus. J.,

Sena, Sem MEO neninciercieasenitbnnnineiianeniitnnianbesiaminie

Steve Kemme, Norwood Battle Puts Life on

Hold, Cincinnati Enquirer, July 18, 2004..........

Steve Kemme, Residents Remain in Limbo,

Cincinnati Enquirer, Mar. 28, 2004...................

Rox Laird, Kansas City-Wyandotte County Have

Merged—and Become a Top Tourist Destina-

tion, Des Moines Register, Oct. 17, 2004..........

John Lewis, A Treatise on the Law of Eminent

TAIN ae ene ee em

P. Nichols, Eminent Domain (3d ed. 2003, J.

iii iil alain

Gary Pettus, Nissan + 1], Thanks to Better Pay,

Bills Lighter, Dreams Brighter, Workers Say,

Clarion-Ledger, May 30, 2004 .00.........:cccccceeeee

John Poretto, Last Owners Settle in Nissan Land

Fight, Commercial Appeal, April 10, 2002.......

Barbara Powell, Economy Will be Barbour’'s Big

Challenge as Governor, Commercial Appeal,

DRI, Tei aE wenusvesennnccnsastentensommnsenieisesnieantemenes

Page

10, 11

26, 27

Vill

TABLE OF AUTHORITIES

Lisa Scheller, Where Did They Go? Wyandotte

Residents Displaced by Kansas Speedway Now

Settled In, Tonganoxie Mirror, July 28, 2004...

Eric Stringfellow, Utility Chief Needs New

Economic Agenda, Clarion-Ledger, July 6,

NC

Elizabeth A. Taylor, The Dudley Street Neigh-

horhood Initiative and the Power of Eminent

Domain, 36 B.C. L. Rev. 1061 (1996) ..............

U.S. Census Bureau, State Rankings—Statistical

Abstract of the United States (2004)...

Josee Valcourt, Spending $365 million: Is State's

Investment in Nissan Paying Off?, Clarion-

On

Josee Valcourt, Southern Auto Plants: Fringe

Benefits Keep Packages Competitive, Clarion-

I 9G yy

Willem van Vliet, ed.. The Encyclopedia of

I Ge cnscnstasteennsenserinnaenninemninnete

N. Webster, American Dictionary of the English

Language (1st €d. 1828) ............sseccccesssssseseeseees

Webster's Encyclopedic Unabridged Dictionary

Mark Wiebe, Village West to Get New Tenants,

Kan. City Star, Jan. 29, 2003 .............ccccsssessesees

Douglas M. Wrenn, Urban Waterfront Develop-

ment, 15 St. Mary’s L. J. 555 (1984)...

Page

24, 26

27

20

26

28

INTEREST OF THE AMICI CURIAE

This case is of vital importance to amici, whose members

include state and local governments and officials throughout

the United States.' These officials use eminent domain for

many purposes, including as a fundamental tool for economic

development in distressed cities like New London. Eminent

domain is often indispensable for revitalizing local econo-

mies, creating much-needed jobs, and generating revenue that

enables cities to provide essential services. At the same time,

the condemnation power should be used prudently, as is being

done by New London here. Because of the importance of

these issues to amici and their members, amici submit this

brief to assist the Court in its resolution of this case.

SUMMARY OF ARGUMENT

1. During the last 50 years, this Court has handed down no

less than seven rulings reaffirming that public use under the

Fifth Amendment is coterminous with the police power, and

that where a government objective is legitimate, “the right to

rculize it through the exercise of eminent domain is clear.”

Berman v. Parker, 348 U.S. 26, 33 (1954). These rulings are

not fact-based, as Petitioners suggest, but instead rooted in a

broad rationale recognizing that courts should defer to a

legislative finding of public use unless that finding lacks a

rational basis, even where a private actor stands to benefit.

Early decisions of this Court likewise recognize the propriety

of using eminent domain for economic ends. These long-

standing rulings faithfully capture the original understanding

and plain meaning of the Fifth Amendment as reflected in its

text, structure, and history.

' This brief was not authored in whole or in part by counsel for a party,

and no person or entity other than the amici, their members, and their

counsel made a monetary contribution to the preparation or submission of

this brief. The parties have consented to the filing of amicus briefs and

have filed letters of blanket consent with the Clerk of the Court.

2

Petitioners contend that this Court should jettison its tra-

ditional rational basis test and impose heightened scrutiny

that would prohibit condemnation for economic development

unless there is a high degree of certainty~that the con-

demnation will yield the expected public benefits. But the

Court repeatedly has held that it “need not make a specific

factual determination whether the condemnation will accom-

plish its objectives.” National R.R. Passenger Corp. v.

Boston & Me. Corp., 503 U.S. 407, 422-23 (1992). The

proposed heightened scrutiny would be unworkable and

transform courts into super-legislatures.

2. The variation in eminent domain law among the States

properly reflects the appropriate diversity of our federal

system. A narrow federal constitutiona! constraint on the

scope of public use would inappropriately impose a uniform

standard on States facing highly diverse challenges. This

Court repeatedly has recognized that maintaining a tolerant

federal standard permits adaptation of eminent domain to

varying local conditions. The just compensation requirement

ensures that condemnees are treated justly, as do other state

constitutional and statutory protections.

3. Local communities across the country face daunting

economic challenges that must be addressed through rede-

velopment programs that require the use of eminent domain.

The private sector often cannot accomplish the job alone due

to a range of market failures, including holdouts; obstacles to

assembling an appropriate development site in urban and

suburban areas; the risks associated with cleaning up

“brownfield” sites; clouded property title on key parcels; and

the need to improve street patterns. The Kansas City

Speedway and associated retail development, as well as the

Nissan auto plant in Canton, Mississippi, illustrate how

eminent domain is essential to the rebirth of many eco-

nomically distressed municipalities and regions.

3

ARGUMENT

I. ECONOMIC DEVELOPMENT IS A PUBLIC

USE UNDER THE FIFTH AMENDMENT.

Of all the public purposes advanced by eminent domain,

Petitioners argue that economic development alone is not a

“public use” under the Fifth Amendment. On this reading,

local officials could condemn Petitioners’ property to create a

park, enhance a scenic river vista, or pursue any other public

purpose. But they cannot condemn the same property to

promote economic revitalization that will create jobs and

alleviate the human suffering and social devastation caused

by unemployment and reduced public services. On

Petitioners’ view, economic development is always off-limits

as a justification for eminent domain, no matter how fair the

compensation, no matter how compelling the public interest

in new jobs and renewed prosperity. See Pet. Br. 11-27.

Alternatively, Petitioners argue that the Court should

jettison the traditional rational basis test and replace it with a

heightened “reasonable certainty” standard of judicial review.

See id. at 27-48. This position is both contrary to established

precedent and wholly unworkable.

A. Longstanding Precedents Show that Economic

Development is a Public Use.

For 50 years, without dissent, the Court repeatedly has held

that the scope of public use is coterminous with the police

power and that courts must defer to legislative determinations

of public use. Those decisions rejected arguments, similar to

those advanced by Petitioners, that private benefits generated

by a condemnation render it suspect. It is not surprising,

then, that every Justice on the Connecticut Supreme Court

concluded that economic revitalization is a public use. See

Pet. App. 171 (dissent) (agreeing with the majority that

—

4

“private economic development projects . . . satisfy the tak-

ings clauses of the federal and state constitutions”).

Petitioners cite no federal constitutional authority remotely

suggesting that economic development does not constitute a

legitimate public use, and there is none. In fact, established

precedent compels the contrary conclusion. In Berman vy.

Parker, 348 U.S. 26 (1954), two owners of non-blighted land

challenged an urban redevelopment program in Washington,

D.C. The Court unanimously held that Congress may use

eminent domain to improve the quality of the urban fabric:

“The concept of the public welfare is broad and inclusive.

The values it represents are spiritual as well as physical,

aesthetic as well as monetary.” /d. at 33 (citation omitted).

Berman stressed that where a government objective is

legitimate, “the right to realize it through the exercise of

eminent domain is clear.” /d.

Several factors make this case easier than Berman. Here,

private developers will have only leasehold interests, sub-

jecting them to ongoing oversight by the city’s agent, the

redevelopment agency. See Pet. App. 6. Moreover, the

specific plan to use eminent domain here was approved by the

city council and subject to extensive public input (Resp. Br.

3-5), affording greater democratic participation than in

Berman. See Berman, 348 U.S. at 29-30.

In Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984),

another case involving transfer of condemned land to private

individuals, the Court unanimously confirmed that public use

is “coterminous” with the police power. /d. at 240. Eight

years later, the Court again unanimously reaffirmed that

public use “is coterminous with the regulatory power,” even

where a condemnation “result[s] in the transfer of ownership

from one private party to another.” National R.R. Passenger

Corp. v. Boston & Me. Corp., 503 U.S. 407, 422 (1992).

5

Repeated decisions of this Court reaffirm these bedrock

principles.”

Petitioners argue that these cases can be explained away

because they have “facts of independent public significance.”

Pet. Br. 24. But the rationale of Berman, Midkiff, National

Railroad, and similar rulings is not fact-based. These rulings

stand on an expansive and common rationale recognizing that

the concept of public use is as inclusive as the police power.

Even the amici professors supporting Petitioners acknowl-

edge that the ruling below is “in keeping with” Midkiff. Br.

Am. Cur. David Callies ef al. 3.

Older cases, too, approve the use of eminent domain to

foster economic development. In Head v. Amoskeag Mfg.

Co., 113 U.S. 9 (1885), the Court upheld a state “Mill Act,”

which authorized downstream mill builders to flood land of

upstream riparian owners, to secure “the advantages inuring

to the public from the improvement of water power and the

promotion of manufactures.” /d. at 19; see also Strickley v.

Highland Boy Gold Mining Co., 200 U.S. 527 (1906) (ap-

proving condemnation of a right of way for an aerial bucket

line for a private mining company); Fallbrook Irrigation Dist.

v. Bradley, 164 U.S. 112, 161 (1896) (approving condem-

nation for the irrigation of private land and comparing public

use justifications for eminent domain with those for taxation).

New London’s use of eminent domain for economic

development falls squarely within this longstanding tradition.

* Brown v. Legal Found. of Wash., 538 U.S. 216, 232 (2003) (govern-

ment may condemn property for any reason justifying a tax or user fee);

First English Evan. Luih. Church v. County of Los Angeles, 482 U.S. 304,

321 (1987) (“[T]he decision to exercise the power of eminent domain is a

legislative function ‘for Congress and Congress alone to determine.’”)

(citations omitted); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480

U.S. 470, 491 n.20 (1987); Ruckelshaus v. Monsanto Co., 467 U.S. 986,

1014 (1984).

6

B. The Text, Structure, and History of the Fifth

Amendment Show that Economic Development

is a Public Use.

Berman, Midkiff, National Railroad, and similar precedents

faithfully capture the original meaning of the Takings Clause.

The term “public use” never was intended to limit eminent

domain only to condemnations where the public would own

or have access to the expropriated property. As has been long

noted, the language of the Takings Clause does not impose

any limitation other than the payment of just compensation.

See John Lewis, A Treatise on the Law of Eminent Domain ii

(1888). There is no evidence the Framers were concerned

about the purposes for which eminent domain is employed

where it is subject to legislative control. See Matthew P.

Harrington, “Public Use” and the Original Understanding of

the So-Called “Takings” Clause, 53 Hastings L. J. 1245,

1299-1301 (2002).

The plain meaning of the term “public use,” both now and

at the Founding, encompasses not only public ownership and

access, but also the public enjoyment of benefits.’ In keeping

with this plain meaning, as early as 1837 the Court recog-

nized that eminent domain could be used to promote “the

public interest and convenience.” Charles River Bridge v.

Warren Bridge, 36 U.S. 420, 542 (1837) (observing that state

legislators had taken and extinguished a ferry franchise

through eminent domain because “the public interest and

convenience would be better promoted by a bridge in the

—same place”). The public interest plainly includes economic

prosperity since “[t]he object and end of all government is to

* E.g., Webster's Encyclopedic Unabridged Dictionary 2097 (1996)

(meaning of “use” includes “service or advantage in” and “help; profit;

resulting good”); | N. Webster, American Dictionary of the English

Language (\st ed. 1828) (meaning of “use” includes “advantage” and

“production of benefit”).

7

promote the happiness and prosperity of the community.”

Id. a4, 547.

Because the language of the Takings Clause does not

impose any limitation other than the payment of just

compensation, the constitutional text suggests that the means-

end validity of eminent domain generally should be

determined under the Due Process Clause, as it would be for

any legislative action. Indeed, to our knowledge, only once

in its entire history has this Court invalidated government

action under the U.S. Constitution for taking property for a

purely private use, and it did so under the Due Process

Clause. In Missouri Pacific Ry. Co. v. Nebraska, 164 U.S.

403 (1896), the Court set aside as a violation of due process

an order of a Nebraska agency requiring a railroad to allow

farmers to build a grain elevator on the station grounds. In

Midkiff, the Court noted the extremely limited reach of

Missouri Pacific, emphasizing that the “order in question was

not, and was not claimed to be, . . . a taking of private

property for a public use under the right of eminent domain.”

Midkiff, 467 U.S. at 241 (quoting Missouri Pacific, 164 U.S.

at 416; emphasis added in Midkiff). *

In the end, it makes no practical difference whether the

Court embraces the Due Process Clause as the means-end

limitation on eminent domain, or treats “public use” as

“coterminous with the scope of a sovereign’s police powers.”

Midkiff, 467 U.S. at 240. Where “the eminent domain power

is rationally related to a conceivable public purpose, the Court

* See also Fallbrook Irrigation Dist., 164 U.S. at 160 (public use issues

raised by condemnation “where there is no color of necessity therefor . . .

and simply for the purpose of gratifying the taste of the owner”);

Southwestern Ill. Dev. Auth. v. National City Envtl., L.L.C., 710 N.E.2d

896, 902 (Ill. App. Ct. 1999) (invalidating a taking where the condemning

agency characterized it as one “for private use”), aff'd, 768 N.E.2d | (Ill.

2002).

8

has never held a compensated taking to be proscribed by the

Public Use Clause.” /d. at 241.

C. Petitioners’ Proposed Heightened Scrutiny is

Unprecedented and Unworkable.

Petitioners alternatively argue that this Court should

impose heightened scrutiny for economic development

projects. They contend that courts should allow eminent

domain for economic development only where “the gov-

ernment can show that there is reasonable certainty that the

project will . . . yield the public benefits that are used to

justify the condemnation.” Pet. Br. 36.

This proposal is wholly untethered from this Court's

eminent domain jurisprudence. Longstanding precedents

under the public use provision explicitly reject such

heightened scrutiny. “The proper inquiry before this Court is

not whether the provisions in fact will accomplish their stated

objectives. Our review is limited to determining that the

purpose is legitimate and that Congress rationally could have

believed that the provisions would promote that objective.”

Ruckelshaus, 467 U.S. at 1015 n.18; accord National

Railroad, 503 U.S. at 422-23 (“[W]e need not make a specific

factual determination whether the condemnation will

accomplish its objectives.”).

Petitioners’ proposed heightened scrutiny also is unwork-

able. They leave their “reasonable certainty” standard largely

undefined, but even a “reasonable likelihood” test would be

highly problematic. It often is impossible to predict the

future success of a new economic enterprise of the size and

complexity of the Fort Trumbull project, or of the individual

businesses that make up that project.” Potential delays caused

* See Brian Headd, Redefining Business Success: Distinguishing

Between Closure and Failure, 21 Small Bus. Econ. 51, 58 (2003),

9

by years of litigation over provability of success would likely

preclude the use of eminent domain for economic develop-

ment in many cases. Heightened scrutiny would alter market

signals by injecting additional risk, and markets would pro-

tect against this risk by increasing costs through higher inter-

est rates for municipal bonds or terminating the development

opportunity.

If government officials pursue ill-considered ventures, the

appropriate remedy should be left to the voters. Democratic

oversight works well for redevelopment projects using

eminent domain because the entire community bears the cost

of acquiring the land and thus has a strong interest in ensuring

that condemnations are prudent. Public proceedings, like the

extensive public meetings and hearings held in New London

(see Resp. Br. 3-5), allow condemnees to bring these issues to

the fore, and media scrutiny promotes public consideration

and participation. Market signals, such as investor interest in

municipal bonds, also help affirm the viability of redevel-

opment projects.

In contrast, the judiciary is ill-equipped to predict the

outcome of complex economic undertakings. While legisla-

tures have the resources and time to engage in complex fact-

finding and economic analysis, such decisions “are not wisely

required of courts.” Pegram v. Herdrich, 530 U.S. 211, 221

(2000); accord Midkiff, 467 U.S. at 243 (“[E]mpirical debates

over the wisdom of takings—no less than debates over the

wisdom of other kinds of socioeconomic legislation—are not

to be carried out in the federal courts.”). Petitioners would

have courts review contracts and land use laws to ensure there

are binding “contractual, statutory, or other minimum stand-

ards” that will make economic success a reasonable certainty.

Pet. Br. 37. Heightened scrutiny would transform the courts

http://www.sba.gov/advo/stats/bh_sbe03.pdf (about one-third of new bus-

inesses fail).

10

into super-legislatures or boards of land use appeal, inun-

dating them with requests by holdouts to review the details of

economic development projects across the board.

Petitioners’ “reasonable certainty” standard also would

harm many landowners. When a municipality announces a

development project, many affected landowners want to sell

their land as soon as possible. The marketplace often is

unavailing because ordinarily few people want to buy land

that will be acquired by the government. But the munic-

ipality often is unable to proceed with land acquisition until it

can acquire al/ land needed for the project; developers

reasonably insist on assemblage of the entire project site

before proceeding with a multi-million dollar project. Under

current law. land acquisition can begin when local officials

have a rational basis for believing the project will advance a

public purpose. But under heightened scrutiny, acquisitions

might be delayed for years because local officials could not

condemn land held by holdouts until the officials could show

to a reasonable certainty that the project would be successful.

And these holdouts would have every incentive to challenge a

“reasonable certainty” showing in court to gain leverage in

extorting large compensation awards.

These concerns are by no means hypothetical. In Nor-

wood, Ohio, about 70 properties were needed to expand a

complex of shops and offices to promete economic growth in

that financially strapped city.° More than 60 owners agreed

to sell voluntarily, but they could not sell because a handful

of owners held out, even though they were offered 125% of

market value.’ So outraged were the 60+ landowners that

many joined with the city in opposing the holdouts’ lawsuit,

® See Cindi Andrews, Some in Norwood Fight to Sell Homes, Cincin-

nati Enquirer, Oct. 11, 2003, available at 2003 WL 62434526.

” Steve Kemme, Norwood Battle Puts Life on Hold, Cincinnati En-

quirer, July 18, 2004, available at 2004 WL 79970802.

planting yellow signs in their yards protesting that they were

being “Held Hostage” by the holdouts’ counsel." Among the

landowners held in limbo were the Vogelsongs, who were

forced to pay two mortgages and exhausted one of their

pension funds and tapped into another until the holdout issue

was resolved. Michelle Vogelsong directed her anger not at

the city, but at the holdouts’ counsel: “It’s aggravating.

People who aren’t even residents here are holding up the best

thing that’s happened to Norwood in a long while.” For

Jeanne Dawson, an 83-year-old blind retiree, the delay

“meant the loss of three opportunities to move into a

retirement home.”'° Heightened scrutiny would allow many

more holdouts to exploit their monopoly position at the

expense of other landowners.

Some amici supporting Petitioners make the peculiar

argument that Nollan v. California Coastal Comm'n, 483

U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374

(1994), support heightened scrutiny of eminent domain. Br.

Am. Cur. David Callies et al. 24. But Nollan and Dolan

address situations where the government sought to acquire

property interests without paying any compensation by

imposing permit conditions requiring dedications of property.

The opinions carefully explain that heightened scrutiny was

justified by the concern that government could extort property

for free in the guise of granting permits. See Nollan, 483 U.S.

at 841 (noting “heightened risk that the purpose is avoidance

of the compensation requirement”); Dolan, 512 U.S. at 385

(relating heightened scrutiny to doctrine of “unconstitutional

conditions”). One obvious remedy for the Nollans and Mrs.

* See Andrews, supra note 6.

* Kemme, supra note 7. Donna Laake, who also is paying two mort-

gages, lamented: We haven't had our side of the story told too much.”

Andrews, supra note 6.

'° Steve Kemme, Residents Remain in Limbo, Cincinnati Enquirer,

Mar. 28, 2004, available at 2004 WL 72712753.

1?

oan

Dolan was payment of compensation. It defies logic, as well

as precedent, to extend these exaction decisions to fully

compensated takings where such risks do not exist.

Il. EXISTING STATE AND LOCAL PROTEC-

TIONS FOR PROPERTY OWNERS _ IN

EMINENT DOMAIN CASES REFLECT THE

APPROPRIATE DIVERSITY OF OUR

FEDERAL SYSTEM.

The Court has long recognized that different States have

different approaches to eminent domain and public use due to

the diversity of local circumstances. Indeed, “[p]roperty

interests . . . are not created by the Constitution. Rather they

are created and their dimensions are defined by existing rules

or understandings that stem from an independent source such

as state law.” Board of Regents v. Roth, 408 U.S. 564, 577

(1972). As early as 1923, the Court stressed that the deter-

mination of an appropriate public use “is influenced by local

conditions,” and courts “should keep in view the diversity of

such conditions and regard with great respect the judgments

of state courts upon what should be deemed public uses in

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

705-06 (1923).

To our knowledge this Court has never reversed a state

court decision finding that a taking constitutes a public use,

regardless of whether similar takings might violate con-

Stitutional or statutory constraints in another State. For

example, the Court upheld New Hampshire’s “Mill Act”

against a federal constitutional challenge even though other

States had concluded similar statutes violated “their

respective Constitutions.” Head, 113 U.S. at 18.

In Clark v. Nash, 198 U.S. 361 (1905), the Court explained

this deference to state court judgments on public use, up-

holding a Utah statute that permitted condemnation of rights

13

of way for irrigation ditches necessary for private farming

and mining:

Where the use is asserted to be public, and the right of

the individual to condemn land for the purpose of

exercising such use is founded upon or is the result of

some peculiar condition of the soil or climate, or other

peculiarity of the State, where the right of condemnation

is asserted under a state statute, we are always, where it

can fairly be done, strongly inclined to hold with the

state courts, when-they uphold a state statute providing

for such condemnation. . . .

... This court has stated that what is a public use may

frequently and largely depend upon the facts sur-

rounding the subject, and we have said that the people of

a State, as also its courts, must in the nature of things be

more familiar with such facts.

Id. at 367-68; accord Fallbrook Irrigation Dist., 164 U.S. at

159-60 (“[W]hat is a public use frequently and largely

depends upon the facts and circumstances surrounding the

particular subject-matter . . . .”).

In other words, the irrigation measure like that upheld in

Clark might not be a public use in Connecticut. But while

Connecticut is not arid, it does have several older urban areas

with seriously declining economic bases, the economic

redevelopment of which requires the use of eminent domain.

A narrow federal requirement for public use would im-

properly impose a uniform standard on States facing highly

diverse challenges. Maintaining a flexible federal standard

permits adaptation of eminent domain to the diverse needs of

States, as has been the practice throughout our history.

Petitioners and their amici discuss various state court

decisions that limit eminent domain. But nothing in the

Federal Constitution prevents States from placing greater

restrictions on the use of eminent domain as a matter of state

constitutional or statutory law, and several have done so. In

14

rejecting the federal public use claim of one property owner

who relied extensively on state precedents, Justice Holmes

wrote for a unanimous Court: “If the state constitution

restricts the legislature within narrower bounds that is a local

affair, and must be left where the state court leaves it.”

Strickley, 200 U.S. at 531.

Washington's constitution, for example, provides an “abso-

lute prohibition against taking private property for private

use” (subject to specific exceptions) and also expressly makes

“the question of public versus private a judicial question.”

Manufactured Housing Communities of Washington v. State,

13 P.3d 183, 188 (Wash. 2000). Washington's courts thus do

not follow Berman or Midkiff due to the different language of

its constitution. /d. at 189.

Michigan provides another pertinent example because

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

765 (Mich. 2004), as a model for how this Court should

construe the federal Constitution. But the history of

Michigan's interpretation of its own Takings Clause shows

why Hathcock should have no influence on interpreting the

federal Constitution. Michigan had long viewed economic

development not to be a public use; it had even held its own

Mill Act to be unconstitutional, in contrast to this Court's

construction of the federal Takings Clause. Compare Ryerson

v. Brown, 35 Mich. 333 (1877) (necessity for general mill act

less than in other States) with Head v. Amoskeag Mfg. Co.,

113 U.S. at 26 (upholding New Hampshire's Mill Act). The

Hathcock court’s decision turns entirely on its reading of

where Michigan law stood when the state constitution was

adopted in 1963; it pointedly ignores Berman and Midkiff, as

well as general questions of the balance between individual

and community interests. Hathcock, 684 N.W.2d at 780-85.

It would be bizarre for this Court to accord weight to a

15

Michigan decision that affords no weight to this Court's

precedents. ''

Most States have anticipated or adopted the general

approach to public use charted by this Court, although with

variations. See 2A P. Nichols, Eminent Domain § 7.02[5] (3d

ed. 2003, J. Sackman ed.). For example, the court below took

a “flexible approach” (Pet. App. 30) but still ruied as a matter

of Connecticut constitutional law that a taking would violate

the public use clause if “the taking was primarily intended to

benefit a private party, rather than primarily to benefit the

public.” Jd. at 68. It carefully reviewed the lower court

findings and the record before concluding that the project

constituted a public use.

This Court’s longstanding deference to state and local

approaches to public use will not result in any systematic

unfairness to property owners. All condemnees receive what

the Takings Clause guarantees them: just compensation.

Petitioners suggest that homeowners suffer intangible losses

that are not compensated, but even if true it would not support

a restrictive reading of public use. Rather, the argument bears

on the Court’s interpretation of “just compensation.” See,

e.g., United States v. 564.54 Acres of Land, 441 U.S. 506, 512

(1979). That issue is not before the Court here.'?

'' In any event, the rule embraced in Hathcock provides far too rigid an

interpretation of public use for the U.S. Constitution. It is insensitive to

the locally determined need for economic development or the care with

which it is carried out. The rule applies only when a private entity will

own the property, but not to cases where a public entity retains ownership,

which would perversely encourage governments to maintain ownership

and control of developments that might be better managed by private

enterprise. Hathcock also protects to the same extent long-term home-

owners and short-term speculators in undeveloped land, even though the

former might suffer subjective losses but not the latter.

'? Many States and the Federal Government provide additional funding

to condemnees beyond just compensation. For example, Connecticut has

16

States also place many statutory and constitutional pre-

requisites on recourse to eminent domain, particularly for

economic redevelopment. For example, under Connecticut's

urban renewal laws that address blight, local officials may

condemn structures that are not substandard, but only if

“essential to complete an adequate unit of development.”

Conn. Gen. Stat. § 8-125(b). The Connecticut Supreme Court

reads this provision to require local officials to consider

whether existing owners can be integrated into redevelopment

projects. See Pequonnock Yacht Club, Inc. v. City of

Bridgeport, 790 A.2d 1178. 1185 (Conn. 2002). Under

Connecticut's economic development laws, the provisions

invoked by New London here, local officials must show that

condemnations are primarily intended to benefit the public

(Pet. App. 68). and provide other reasonable assurances that

condemnations will advance the public interest. /d. at 71-

110, 122-33. Commentators agree that redevelopment

projects today are carried out with greater sensitivity to the

value of existing communities.”

enacted the Uniform Relocation Assistance Act, Conn. Gen. Stat. § 8-266

et seq., under which more than $10 million in relocation assistance is

available to Petitioners and other landowners within the Fort Trumbull

site (on average more than $100,000 per affected landowner, in addition

to fair market value). J.A. 206-07.

'’ See Alau Altshuler & David Luberoff, Mega-Projects: The Chang-

ing Politics of Urban Public Investment 43 (2003) (“solidly entrenched”

consensus among local officials that redevelopments “should proceed

only if their negative side effects were negligible, or at least fully

mitigated”). The excesses of urban renewal during the 1950s and 1960s

that Petitioners’ amici discuss were curbed by federal legislation that

fostered more careful consideration of the consequences of demolition,

such as the National Historic Preservation Act, 16 U.S.C. § 470 ef seq.,

Section 4(f) of the Department of Transportation Act, 49 U.S.C.

§ 3303(c), and the National Environmental Policy Act, 42 U.S.C. § 4321

et seq. These statutes typically also restrict States when they use federal

money or require federal approvals for their redevelopment plans.

17

Ill, EMINENT DOMAIN IS A_ VITAL ECO-

NOMIC DEVELOPMENT TOOL FOR MANY

COMMUNITIES.

After acknowledging Petitioners’ personal dreams and

desires, thé trial court recognized that the city officials in

New London “have a dream also. The accomplishment of

their dream presents no opportunity of personal gain or favor.

... Their dream is for their city buffeted for decades by hard

times and until recently declining prospects.” Pet. App. 196.

State and local governments across the country face similarly

daunting economic challenges, particularly for the poorest

members of those communities. Some local economies have

been especially hard hit:

> Milwaukee, once known as the “toolbox to the

world,” has been devastated by relentless global com-

petition. African-American males in the city have

suffered almost twice the drop in employment that the

nation endured during the Great Depression. In one

generation, Milwaukee “has turned from a place of un-

rivaled opportunity for blacks into a locus of downward

mobility without equal among other big U.S. cities.”"*

Congress amended the federal urban renewal program several times and

finally terminated it in 1974.

Petitioners and their amici try to create the impression of an epidemic

of abuse by citing to an Institute for Justice document that purports to

identify instances of abuse. E.g., Pet. 8 (citing Dana Berliner, Public

Power, Private Gain (Institute for Justice 2004)); Br. Am. Cur. Better

Gov't Ass’n 5-6 (same). But the term “abuse” as used in this document

includes any project in which the land was to be turned over to a private

entity (Berliner, supra, at 2), a criterion rejected by Berman, Midkiff,

National Railroad, and countless other federal and state cases.

'* Associated Press, Loss of Manufacturing Jobs Hits Milwaukee's

Black Community Hard, St. Paul Pioneer Press, Dec. 9, 2004, at 3B,

available at 2004 WL 95865925.

18

> North Carolina residents know firsthand the local

devastation caused by the loss of textile jobs to overseas

production. During the last ten years, our nation has lost

more than half of its textile jobs. This year brings a

further lifting of federal protections for U.S. textile mills

from foreign competition, thereby “exposing an already

troubled industry to the full force of globalization.”'*

> Last year, General Motors announced it will close its

Baltimore plant, the most recent blow in a steady decline

of the city’s manufacturing base. Baltimore's steel

industry has been cut by about 90 percent, and during

the 1990s the city lost a shipyard and other large

employers, forcing city officials “into extreme make-

overs they would just as soon have lived without.”"®

> Missouri lost 94,500 jobs during the 20-month

period ending December 2003, the worst rate of decline

among the 50 States. A major clothing manufacturer

closed its plant due to lower labor costs in Latin

America, and other large employers also have left the

State for other countries.’

Petitioners’ amici belittle economic development projects

as a mere sop to politically connected private interests. F.g.,

Br. Am. Cur. Better Gov't Ass'n 5. This disparaging view

reflects a fundamental misunderstanding of local officials.

Local governments do not exist to enrich_a select few, but to

solve problems and provide services that all citizens need and

demand. The millions of dollars provided by revitalization

'S Paul Blustein, On Pins and Needles: As Quotas Expire, U.S. Textile

Industry Braces for Change, Wash. Post, Dec. 31, 2004, at El, available

at 2004 WL 101233910.

'° Associated Press, Loss of Manufacturing Jobs Means a Makeover for

Baltimore, AP Newswires, Nov. 17, 2004.

"” Shashank Bengali, Loss of Manufacturing Jobs Cuts Especially Deep

in Southwest Missouri Town, Kan. City Star, Feb. 17, 2003, available at

2003 WL 4025326.

19

projects can mean more jobs and more money for vital

government services across the board, including more police

officers and firefighters, support for senior citizens, better

pre-natal care, adolescent pregnancy prevention, more teach-

ers and better-equipped schools, and more effective child-

abuse prevention.

Urban waterfront redevelopment like New London’s is

especially attractive for several reasons. It draws people back

from the suburbs and into the city to live and play. It

capitalizes on the dramatic improvement in the water quality

of our rivers and lakes in recent decades.'* It creates jobs and

tax revenue. It breathes new life into abandoned waterfront

factories, warehouses, and shipyards rendered obsolete by

economic change. It often includes river walks and other

areas of public recreation that provide synergistic benefits and

unite the community. '

The use of eminent domain often is essential to assemble a

critical mass of property needed for development in metro-

politan areas because market failures make it impossible for

the private sector to do the job alone. These market failures

include the difficulty of assembling an appropriately-sized

development site due to holdouts; the legal risks associated

with cleaning up lightly contaminated “brownfield” sites;

clouded property title on key parcels; the need to improve

street patterns; and decisions by existing businesses to leave

nearby land vacant to prevent competitors from entering the

market.”” Local officials use eminent domain to address these

and other market failures by acquiring parcels, providing for

'® Douglas M. Wrenn, Urban Waterfront Development, 15 St. Mary’s

L. J. 555, 556 (1984) (improvements in water quality have stimulated

waterfront development).

'° See id. at 556-58.

° Colorado Municipal League, et al., Urban Renewal in Colorado 4\-

46 (C. White ed., Sept. 2004).

20

cleanup, clearing title, and removing other obstacles to

development.”! Amicus Norquist argues that economic

development should be left to the private sector. See Br. Am.

Cur. John Norquist 3. But in many instances market failures

require a public-private partnership, including the use of

eminent domain, to remove barriers to investment.”

Grassroots organizations often support these efforts. In

Boston, city officials have worked closely with a non-profit

community organization to provide affordable housing and

breathe life back into decaying neighborhoods.” Eminent

domain was the “only way to acquire a coherent area of land

on which to implement its plan” because “[d]eveloping only

the city-owned land would defeat the goals of critical mass

and community-controlled neighborhood redevelopment.”

Professor Epstein acknowledges that “holdout risks” can be

a serious impediment to economic development that requires

the use of eminent domain. See Br. Am. Cur. Cato Inst. 22.

He argues, however, that the market failure caused by hold-

outs is “a complete nonproblem” in New London because the

"Id

= Id

** See Elizabeth A. Taylor, The Dudley Street Neighborhood Initiative

and the Power of Eminent Domain, 36 B.C. L. Rev. 1061, 1077-81 &

n.190 (1996) (describing how a non-profit group formed by La Alianza

Hispana, Cape Verdean Community House, Casa Esperanza, St. Patrick's

Church, and other neighborhood organizations is helping to revitalize a

“wasteland” area of “trash-filled vacant lots” less than two blocks from

downtown Boston).

** 36 B.C. L. Rev. at 1080. Amicus Jane Jacobs argues that the private

sector can address holdouts because private developers can “use

specialized agents” and “negotiate with individual owners in secret” to

trick holdouts into selling. Br. 14. Takings jurisprudence, however,

should not turn on the availability of deceptive negotiating practices. In

contrast, New London’s redevelopment occurred in the sunshine of public

hearings and media scrutiny.

21

city could simply build around them. /d. at 23. But

Petitioners’ land is located in the middle of Fort Trumbull

peninsula, falls within a floodplain, and needs to be raised by

adding fill to allow for new development. J.A. 3-4; Pet. App.

95 n.85. Building around them would leave them literally

underground. More fundamentally, this myopic theory would

encourage countless holdouts in future projects to exploit

their monopoly position over land needed for economic

development to secure more compensation than is con-

stitutionally required. Because this compensation would

come from the municipal fisc, it would unfairly benefit a few

at the expense of the many.

Petitioners argue that the Fort Trumbull project is dis-

tinguishable from condemnations for economic development

previously approved by this Court, such as those under the

Mill Acts, because those early condemnations were location-

specific. Pet. Br. 21-23. They blithely assert that hotels and

offices are “ubiquitous” and can be built anywhere. /d. at 22.

But the Fort Trumbull project and other waterfront projects

are as location-specific as any mill. The Fort Trumbull

project is integrated with the historic state park and

economically tied to other facilities in the area that will

supply customers to the retail shops. The very purpose of

waterfront development is to revitalize areas abandoned by

water-dependent industries such as shipbuilding and ware-

houses that fell into disuse with the rise of jet aircraft, the

interstate highway system, and the decline of water-

dependent industries.”°

Petitioners might argue that because they do no: challenge

the holding in Berman, their argument does not jeopardize

projects where any portion of the project consists of blighted

property. But this position would be unacceptably arbitrary.

Federal constitutional authority to assemble land through

25 See Wrenn, supra, 15 St. Mary’s L. J. at 556-57.

22

eminent domain for redevelopment should not turn on

whether any portion of the land, however small, is blighted.

The concept of blight is itself an economic concept, “a pattern

of deterioration and decay of economic vitality in cities or

neighborhoods.” Willem van Vliet, ed., The Encyclopedia of

Housing 32 (1998). Thus, the line between blight and under-

use is sometimes exceedingly blurry, and attempts to

distinguish blight elimination from economic development

often elevate form over substance. For example, the highly

successful Riverside Plaza redevelopment in Estes Park,

Colorado, was driven by the need to revitalize the local

economy after a devastating flood in 1982. Although certain —

condemned parcels might have been blighted, the primary

purpose was not to remove eyesores, but to re-energize the

local economy.”°

Moreover, limiting eminent domain for redevelopment to

blight removal would have the unjust effect of confining

condemnation to the dwellings and businesses of the very

poor, while immunizing the more affluent. See Bruce Fein,

Eminent Domain, Eminent Nonsense, Wash. Times, Oct. 12,

2004, at Al6 (describing the Fort Trumbull project as a

“middle class reenactment of Berman” and _ criticizing

Petitioners’ effort “to make the Constitution pivot on Marxist-

like class distinctions” by limiting condemnation for

redevelopment to blighted land). It would be capricious in

the extreme to read the U.S. Constitution as prohibiting the

Fort Trumbull project, but to allow an identical project to go

forward in another community simply because a small portion

of the development site happens to be blighted.”’

*° Urban Renewal in Colorado, supra note 20, at 47-48.

*” To the extent Petitioners’ brief might be read to suggest that local

officials may condemn only blighted parcels, this position was cate-

gorically rejected in Berman, where the Court upheld the condemnations

at issue even though the complainants owned a non-blighted department

store. See 348 U.S. at 31.

23

Below, amici describe in greater detail two economic

redevelopment projects which, like Fort Trumbull, involved

condemnation of non-blighted land: the Kansas Speedway

and the Canton, Mississippi, auto plant. As is sometimes the

case when economic development projects are undertaken

pursuant to the democratic process, there were some

landowners who opposed these projects and did not sell

voluntarily. But their objections do not detract from the

enormous public benefits resulting from these projects or the

undeniable “public use” to which the land is now being put.

Nor was there any certainty that these projects, particularly

the speedway, were going to succeed, but succeed they did.

Petitioners would preclude every community from enjoying

the benefits of similar projects in the future.

A. The Kansas Speedway and Retail Success Story

In 1997, Kansas City, Kansas, and Wyandotte County had

been struggling economically for almost fifty years.” Gov-

ernment revenues were dropping, and tax rates were climb-

ing, creating “the kind of downward cycle that is hard to

reverse.””” The county had been burdened for generations by

poverty, crime, and a stagnant economy.”

What changed the fortunes of Kansas City and Wyandotte

County are the Kansas Speedway and the retail deveiopment

that it sparked. In order to save its residents from the

consequences of further economic decline like fewer job

opportunities, higher taxes, and weakened public services,

local officials made the difficult decision to use eminent

* Rick Alm, Learning From Past Mistakes Paved Way for Kansas

Speedway's Success, Kan. City Star, Oct. |, 2002, available at 2002 WL

26158033.

* Dale Garrison, Biggest Deals of the Past 30 Years, \Ingram’s, Jan.

2004, http://www. ingramsonline.com/jan_2004/bigdeals4.htm!.

* See Alm, supra note 28.

24

domain to acquire property for the speedway.*' The public

benefits of the speedway and related development are “a

glorious success for a once-struggling county.’

The speedway’s wealth also has been spread throughout

the region. One study found that.$89.3 million flowed into

the local economy on race days at the track during the first

season, and the larger metropolitan area reaped “$150 million

in economic activity, including $70 million in local workers’

wages and $10 million in increased business tax col-

lections.*’ But the most important economic impact of the

speedway has come from the retail development that the

speedway sparked, a 400-acre retail project called Village

West that is “headed toward 10 million visitors a year.”™*

Village West probably would not have been possible

without the speedway. As noted by Mayor Carol Mari-

novich, retailers were reluctant to go to Wyandotte County

because of its small population, and local officials needed to

create “a destination, a draw, that would bring retail,” even

without a large population.*°

The decision to use the speedway as a catalyst for eco-

nomic development was initially controversial, with critics

harping that the project was doomed to failure.°° But the

benefits for the people of Wyandotte County and Kansas City

' Lisa Scheller, Where Did They Go? Wyandotte Residents Displaced

by Kansas Speedway Now Settled In, Tonganoxie Mirror, July 28, 2004,

http: ’/www.tonganoxiemirror.com/section/archive/story/66 | 3.

“Lance Dickie, NASCAR's Lucrative Lure; Is It Right for the North-

west”, Seattle Times, Sept. 19, 2004 at D1, available at 2004 WL

58951653.

* Alm, supra note 28.

* Dickie, supra note 32.

** Garrison, supra note 29. See also Dickie, supra note 32.

* Alm, supra note 28.

25

are now clear. The Village West tourism district wiil create

approximately 4,000 new jobs.*’ Within the next several

years, the state and local governments will receive $53 mil-

lion in annual tax revenue from the development.** The once

moribund housing market has revived, with single-family

housing starts increasing by 146% between 2000 and 2003.

In the last seven years, tax rolls have swelled with $700

million worth of new real estate development.”

None of these benefits would have occurred without the

use of eminent domain. Before the speedway existed, there

were no market forces swirling around the 400-acre Village

West site, which had previously been “in the middle of a

demographically barren nowhere.”*' The government had to

create the conditions for economic development, and it had to

use eminent domain to do so. Without the efforts of local

officials, including the use of eminent domain, the jobs for

local residents, the revenue for local businesses, and the funds

for local services simply would not exist.

Although some of the former landowners did not want to

leave their homes, many support the project seven years later.

For example, Joyce Vaught, one of the homeowners whose

land was condemned for the speedway, is one of these

converts: “At first I was pretty bitter about having to [move]

..., we'd lived there for so long. But now I love it.” She

*” Mark Wiebe, Village West to Get New Tenants, Kan. City Star, Jan.

29, 2003, available at 2003 WL 4023705.

*® Randy Covitz, Track is a Green Light for County; Speedway Brings

a Lot to Wyandotte, Kan. City Star, Oct. 9, 2004, available at 2004 WL

94408340.

* Rox Laird, Kansas City-Wyandotte County Have Merged—and

Become a Top Tourist Destination, Des Moines Register, Oct. 17, 2004, at

Ol, available at 2004 WL 90799574. ~~

” Laird, supra note 39.

* Alm, supra note 28.

26

also is pleased with how the speedway and Village West area

has grown. “It’s beautiful and . . . it just amazes me when you

go down there to eat how there are alt those places and

they’re busy. It’s just a beautiful thing.”*

B. The Canton Success Story

In the 2000 census, Mississippi ranked 49th in median

household income ($31,000), 50th in personal per capita

income ($20,000). first in overall poverty (20 percent), and

first in child poverty (27 percent).~ The State recently lost

more than 50,000 manufacturing jobs, suffering through

“several years of devastating factory closures.”

When the Nissan Motor Company chose Madison County,

Mississippi, as the site for a major manufacturing plant in

2000, state officials recognized | that this could have a

transformative effect on the State.** Mississippi used eminent

domain to acquire the more than 1,400 acres needed for the

Nissan plant. Landowners on the site received an average of

$18,000 an acre*® for property that had been selling for about

$2.300 an acre a few years earlier.*’ A handful of owners

© Scheller, supra note 31.

* See U.S. Census Bureau, State Rankings—Statistical Abstract of the

United States (2004), available at http://www.census.gov/statab/www/

ranks.html.

“ Barbara Powell, Economy Will be Barbour's Big Challenge as

Governor, Commercial Appeal, Nov. 16, 2003, at B4, available at 2003

WL 66406270.

* See, e.g., Reed Branson, Mississippi OKs $295 Million in Incentives

for Nissan, Commercia! Appeal, Nov. 7, 2000, at Al, available at 2000

WL 27940695.

* David Firestone, Black Families Resist Mississippi Land Push, N.Y.

Times, Sept. 10, 2001, at A10.

* John Porretto, Last Owners Settle in Nissan Land Fight, Commercial

Appeal, Apr. 10, 2002, at DSS, available at 2002 WL 3469169.

27

objected to the use of eminent domain for the Nissan project,

but they eventually settled with the State.

The State’s use of eminent domain authority has greatly

benefited its residents: “[T}he arrival of Nissan in Madison

County breathed new life into Mississippi.” The Nissan

plant employs 5,300 workers at full capacity.’ These work-

ers earn hourly wages of between $13.25 and $25 (between

$27,500 and $52,000 a year, well above the state-wide per

capita income), plus competitive fringe benefits. *' Tens of

thousands of more jobs are expected just in Madison County,

with 16,200 predicted by sometime this year, and 29,000

by 2010. ‘9

Not surprisingly, Madison County has felt the most di-

rect impact from the plant. “Madison County, especially its

southern areas, has become a synonym for growth.” The

“assessed value of land, property, vehicles, and utilities in the

county exceeded $1 billion for 2004, up 36 percent from the

year before.”** This higher tax base means more money for

public services that benefit county residents.

The Nissan plant’s benefits have also spread beyond Madi-

son County’s borders. The plant’s workforce comes from

48

Id.

* Lynne Jeter, Driving Change: Nissan Adds Punch to Region's

Economy, Miss. Bus. J., Nov. 29, 2004, at S12, available at 2004 WL

87315606.

© Id.

*' Josee Valcourt, Southern Auto Plants: Fringe Benefits Keep Pack-

ages Competitive, Clarion-Ledger, Feb. 22, 2004, at IC.

* Jeter, supra note 49.

-* Bric Stringfellow, Utility Chief Needs New Economic Agenda,

Clarion-Ledger, July 6, 2004, at 1B.

** Glimpse of the Future 2: Residents Describe Plant's Massive Impact

on Area, Montgomery Advertiser, Aug. 22, 2004, available at 2004 WL

84752391.

28 -

eighty of the State’s eighty-two counties, including many

places that were hard hit by other plant closures.” The

higher-than-average wages paid by Nissan and its suppliers

could eventually boost manufacturing wages throughout the

entire State, as other employers compete for skilled work-

ers. “It's a reality that Nissan’s being here is changing

things.” a representative for the Mississippi Manufacturers

Association told a reporter. “It's offering choices and op-

portunities for people.”

For individual Mississippians, the plant has been life-

transforming: “Before | came ‘« Nissan, it was like being

covered over with dirt. | was in debt. I was buried,” said one

Nissan worker.”* Another worker, who used to make $9 an

hour handling raw chicken parts on an assembly line, will

soon earn $21 an hour at Nissan. “My job has really changed

my life.” she said, “It keeps me going.””

* Josee Valcourt, Spending $365 million: Is State's Investment in

Nissan Paying Off’, Clarion-Ledger, Dec. 21, 2003, at IC.

© Lynne Jeter, The Nissan Effect, A Better Mississippi All Around,

Miss. Bus. J., June 23, 2003, at 19, available at 2003 WL 12776857.

” Id.

* Gary Pettus, Nissan + 1, Thanks to Better Pay, Bills Lighter, Dreams

Brighter, Workers Say, Clarion-Ledger, May 30, 2004, at 91.

* Valcourt, supra note 55.

29

CONCLUSION

The judgment of the Supreme Court of Connecticut should

be affirmed.

Respectfully submitted, |

TIMOTHY J. DOWLING RICHARD RUDA*

JENNIFER BRADLEY Chief Counsel

COMMUNITY RIGHTS COUNSEL STATE AND LOCAL LEGAL

1301 Connecticut Ave., N.W. CENTER

Suite 502 444 North Capitol Street, N.W.

Washington, D.C. 20036 Suite 309

(202) 296-6889 Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

J. PETER BYRNE

GEORGETOWN UNIVERSITY

LAW CENTER 2

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

(202) 662-9066

January 21, 2005