# Petition for Writ of Certiorari — Pappas v. City of Las Vegas Downtown Redevelopment Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0912%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 541 U.S. 912 ## Text Supreme Court, 1: 3. FILED No.03- 02 772 JAN 01 2008 ee ee IN THE Supreme Court of the Anited States CAROL PAPPAS, JOHN H. PAPPAS, JR., and HARRY J. PAPPAS, Petitioners, We CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY, FREMONT STREET EXPERIENCE LIMITED LIABILITY COMPANY, and FREMONT STREET EXPERIENCE PARKING CORPORATION, Respondents. On Petition for Writ of Certiorari to the Supreme Court of Nevada PETITION FOR WRIT OF CERTIORARI BARRY LEVENSTAM Counsel of Record JEREMY M. TAYLOR JOHN W. JOYCE MELINDA E.A. CUPPS JENNER & BLOCK LLP One IBM Plaza Chicago, IL 60611 (312) 222-9350 Counsel for Petitioners | SR REO ARE A ERD SRT NRG LTT SENSE tT ETI LOO LILES TREES TE WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. ©. 20001 QUESTIONS PRESENTED. 1. Whether the Supreme Court of Nevada's reading of Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 29 (1984), violates the fundamen- tal constitutional right of private property ownership by permitting local governmental agencies acting in the name of "economic redevelopment" to take property that is neither blighted nor surrounded by blight and give it to other private parties who supposedly can use that property more profitably on the theory that enhanced private profitability indirectly will benefit the public. 2. Whether the conflict among state courts interpreting Berman and Midkiff in addressing the extent to which local governmental agencies can take property from one private owner and give that property to another private owner in the name of "economic redevelopment" demonstrates the need to revisit and clarify the holdings of those decisions. 3. Whether, if the Nevada Supreme Court's reading of Berman and Midkiff is accurate, this Court must now revitalize the "public use" limitation placed on the power of eminent domain by the Fifth and Fourteenth Amendments in li ght ofthis Court's more recent decision in Dolan v. City of Tigard, 512 U.S. 374 (1994), and in light of recent abuses of that power in the name of "economic redevelopment." ** TABLE OF CONTENTS Page QUESTIONS PRESENTED ...........0..00eeeeeee. TABLE OF CONTENTS ......... 000. 00eceeceueeees ii TABLE OF AUTHORITIES ..............0.e0e eee. iv OPINIONS BELOW ............0..ceeceeceeeceees 2 cep iedleuecsvesssucksncces 2 CONSTITUTIONAL PROVISIONS INVOLVED ....... 2 STATEMENT OF THECASE ............ 00-00 eee. 3 REASONS FOR GRANTING THIS PETITION ....... 12 I. This Court Should Issue The Writ Of Certiorari Because The Nevada Supreme Court's Reading of Berman v. Parker and Hawaii Housing Authority v. Midkiff Violates The Public Use Protection Of The Fifth And Fourteenth Amendments .............. 14 II. This Court Should Issue The Writ Of Certiorari To Resolve The Conflict Among The State Courts Engendered By Berman v. Parker And Hawaii Housing Authority v. Midkiff .......... 000.0000 16 III. This Court Should Issue The Writ of Certiorari To Reconsider Berman v. Parker And Hawaii Housing Authority v. Midkiff \n Light Of Dolan v. City of Tigard, To Resurrect The "Public Use" Protection Of The Fifth And Fourteenth Amendments, And Thereby To Restore The Fundamental Constitutional Right To Own rr ee re 19 Bee Teer ee err re errr C ees yrs 28 Appendix A: Opinien of Supreme Court of Nevada, September 8, 2003 Appendix B: Opinion of Clark County District Court, July 3, 1996 iV TABLE OF AUTHORITIES Page CASES Adarant Contractors, Inc. v. Pena, 515 U.S. 200 (1995)... 25 Berman v. Parker, 348 U.S. 26 (1954) .....--++++: passim Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226 (1897) «1... + esse eee e eee 22 Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993)... 2... ee eee eres 25 Citizens’ Savings & Loan Ass'n v. Topeka, 87 US. (20 Wall) 655 (1874) .....--- seer eee: 21,22,26,27,28 City of Center Line v. Chmelko, 416 N.W.2d 401 (Mich. Ch Rep AMD) cis eee ree 18,19 City of Cincinnati v. Vester, 281 U.S. 439 (1930) ....... 22 City of Las Vegas Downtown Redevelopment Agency v. Eighth Judicial Dist. Court, 5 P.3d 1059 (Nev. fo WAT eas 9 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) .....-- ee eee cece eeee: 28 Davis v. Passman, 442 U.S. 228 (1979)... -- eee rere 27 Dolan v. City of Tigard, 512 U.S. 374 (1994) oni nas nassim Gibbons v. Ogden, 22 U.S. (9 Wheat.) ft). Sere 24 Hawaii Housing Authority v. Midkiff, 467 U.S. 29 i.) ERT ee ee a, passim Kaiser Aetna v. United States, 444 U.S. 164 tip) eT ea 28 Lynch v. Household Fin. Corp., 405 U.S. 538 (1972) . 25,26 Mayor v. Thomas, 645 So. 2d 940 (Miss. 1994) .....--- 18 Vv TABLE OF AUTHORITIES -— continued Page Old Dominion Land Co. v. United States, 269 U.S. 55 ee kh bse ods 048 6 KOE EER BESTE E SS 22 Schneider v. District of Columbia, 117 F. Supp. 705 | Ree ren ri err re ee 15 Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735 ee ae eens tah bG aa eke eee es 17 Southwestern Illinois Development Authority v. National City Environmental, L.L.C., pf) oe BE) Re. | nr 17,18,24 United States v. Playboy Entertainment Group, Inc., ED a ko we dw pea e ns eed eee EY 25 United States ex rel. Tennessee Valley Authority v. FE Wi SSO CIINO) oo ova wcuvesvcanes 22,23 CONSTITUTIONAL PROVISIONS NE, PPP eer ere re Teer TT eT ee res 24 8 Pere eer ee ee eee eee Te passim ee 8S eee rere ere rrr passim STATUTES EE i ity di ata we LAY kee aes 2 Nevada Community Redevelopment Law, PU, GOON, DOME. ZIP. SOC ZIG OOD 6 cece sc ceesesesens 8 eg, 5 er ere are ae 9 vi TABLE OF AUTHORITIES - continued Page PUBLICATIONS | Records of the Federal Convention of | 787 534 (Max Farrand ed., rev. ed. 1966) .......- ee eee reer 20 Arthur Lee, An Appeal to the Justice and Interests of the People of Great Britain, in the Present Dispute with America 14 (4th ed. 1775) .. 0... e+e eee ees 20 Dana Berliner, Public Power, Private Gain: A Five-Year, State-By-State Report Examining the Abuse of Eminent Domain 130-31 ‘ho. ) 13 Donald J. Kochan, “Public Use" and the Independent Judiciary: Condemnation in an Interest Group Perspective, 3 Tex. Rev. L. & Pol. 49 (1998) .... 23,24 Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 Harv. L. Rev. 365 4) ie eee ee aed 20 Friedrich A. Hayek, The Road To Serfdom, 103-04 1, Seeereeere TOee rr eee, 29 James W. Ely, Jr., The Guardian Of Every Other Right: A Constitutional History of Property Rights (Kermit L. Hall ed., 2d ed. 1998) .. 19,20,21,23 John Adams, A Defence of the American Constitutions of Government of the United States of America (1787-88), reprinted in Democracy, Liberty, and Property 126 (Francis W. Coker ed. 1942) ...... 20-21 John Bartlett, Familiar Quotations 336 (Justin Kaplan ed., 16th ed. 1992) ..... 2. cece cess cnerecccees 20 Vil TABLE OF AUTHORITIES -— continued Page Karl Marx & Friedrich Engels, The Communist Manifesto (1848), reprinted in 50 Great Books of the Western World 425 (Robert Maynard oe re rere 28-29 Mississippi Churning, Editorial, Wall St. J., Jan. 4, ci Ff | > Seeeeeeerreerre Perr reer rere re 12 Richard A. Epstein, Zakings: Private Property and the Power of Eminent Domain (1985) .......... 19-20,23 Thomas W. Merrill, The Economics of Public Use, Ta Commer 4... Rev. G4 CE9GG) nn ce ccc ccvecresnens 23 In The Supreme Court of the United States No. 03- CAROL PAPPAS, JOHN H. PApPAS, JR., and HARRY J. PAPPAS, Petitioners, CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY, FREMONT STREET EXPERIENCE LIMITED LIABILITY COMPANY, and FREMONT STREET EXPERIENCE PARKING CORPORATION, _ Respondents. ON PETITION For WRIT OF CERTIORARI To THE SUPREME Court OF NEVADA PETITION FOR WRIT OF CERTIORARI Petitioners Carol Pappas, John H. Pappas, Jr, and Harry J. Pappas (collectively "the Pappas Family") respectfully petition this Honorable Court for a writ of 2 certiorari to review the judgment of the Supreme Court of Nevada. OPINIONS BELOW The majority and two dissenting opinions of the Supreme Court of Nevada are reported at 76 P.3d 2, 17, and 18, respectively, and are reproduced in Appendix A. Pet. App. la, 30a, and 33a, respectively. The decision and order of the District Court of Clark County is reproduced in Appendix B. /d. at 42a. JURISDICTION The opinion and judgment of the Supreme Court of Nevada were filed on September 8, 2003. The jurisdiction of this Court is grounded on 28 U.S.C. 1257(a). Within 90 days of September 3, 2003, Petitioners requested and received an extension of time until January 6, 2004 in which to file this Petition. This Petition is filed on January 6, 2004. CONSTITUTIONAL PROVISIONS iNVOLVED U.S. Const. amend. V: No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const. amend. XIV: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 3 STATEMENT OF THE CASE The Parties and the Project Petitioner Carol Pappas and her late husband John immigrated to this country from Greece; their adult sons, John Jr. and Harry, are also petitioners in this action. In the 1940s, the Pappas Family purchased two parcels of land totaling 7,000 square feet on the comer of Las Vegas Boulevard and Carson Street in Las Vegas, Nevada. The Pappas Family owned this property from the 1940s until possession of it was taken from them by respondent City of Las Vegas Downtown Redevelopment Agency ("Agency"), which promptly gave possession to respondent Fremont Street Experience Limited Liability Company ("LLC"), a cartel of casino owners, and its subsidiary, respondent Fremont Street Experience Parking Corporation (together, "Fremont Street respondents"). The Pappas Family had developed the subject property into a retail center, and leased space to small retail businesses. The small businessmen and women who were their tenants were also defendants below but none were able to continue the litigation to this point. Pet. App. 44a. In November 1985, the Las Vegas City Council adopted a resolution for the establishment of a redevelopment agency and thus created the respondent Agency. The Agency consists of the City Council and City Manager of Las Vegas. Id. at 47a. Two weeks later, the Agency conducted a survey of blocks in the downtown area targeted for "redevelopment" to determine the overall conditions of the target area. The survey, which was submitted to the trial court, reflected no findings of blight on any of the surveyed blocks. Indeed the target area included the downtown casinos. The block on 4 which the Pappas property was located was not even surveyed. Despite the fact that the survey reflected no blight anywhere in the surveyed area, the Agency moved forward towards adopting a redevelopment plan. /d. In the sole public hearing on this redevelopment plan, held in February of 1986, city leader after city leader told a packed hall of citizens that the city would not use eminent domain to effectuate the plan. These comments are set forth in the trial court's opinion. /d. at 49a-54a. In March 1986, the City Council adopted its Redevelopment Plan. /d. at 54a. For seven years, this Plan had no .impact on the Pappas Family or its property. In September 1993, however, a cartel of casinos formed respondent LLC to transform a portion of Fremont Street into a gambling mall. Respondent LLC then formed respondent Fremont Street Experience Parking Corporation as a wholly owned subsidiary. Thereafter, the Fremont Street respondents entered into a Development Agreement with the Agency pursuant to which they would construct a parking garage with retail space on a city block bordered by Las Vegas Boulevard, Fremont Street, Carson Street, and Fourth Street, which the Agency agreed to acquire through eminent domain. /d. at 55a-56a. That block was occupied completely by unblighted retail and commercial properties, including the Pappas Family property. Across one street were certain casinos; across the other streets were businesses like banks and a savings and loan. /d. at 31a, 47a, 79a-80a. The Development Agreement spelled out the purposes for the project and the taking that made it possible: "to enhance employment opportunities, keep companies from leaving the downtown area, attract new businesses to the 5 downtown area, and provide inducement to [LLC] member and non-member hotels and other businesses in the downtown area thereby benefitting the public and community at large." (Appellants' App. in Nev. Sup. Ct. at 1290-91.) Despite the fact that the Agency and the Nevada Supreme Court would later rely on the supposed elimination of "blight" to justify this taking under Berman v. Parker, 348 U.S. 26 (1954), this Development Agreement, like the survey used to justify it, makes no reference to blight. (/d.) There was no blight on or near the Pappases' property. Pet. App. 31a, 47a, 79a-80a.. Pursuant to this Development Agreement, the Agency agreed to pay $6.4 million to acquire the properties upon which the parking garage was to be constructed but the LLC was to pay any costs in excess of that sum. In addition, the Fremont Street respondents obtained a right to veto the sum that would be paid as just compensation for the property if that sum exceeded 10% of the "appraised value" as prepared by the Agency. After the taking, the Fremont Street respondents would then build and operate the parking lot and accompanying retail space and keep the revenues generated by those operations. Jd. at 55a. Nevada law requires that current landowners be invited to participate in the development of a project involving their properties. The Agency sent Carol Pappas a letter notifying her of its intent to develop a parking garage with retail space on the property and inviting her to submit an alternative proposal. Pappas timely responded by letter telling the Agency that she had no desire to sell the property and that she proposed in the alternative to participate in the 6 development of the parking lot by entering into a long-term > ground lease with the city.’ /d. at 56a. There is no evidence that the Agency ever responded to this letter or considered this alternative proposal. Instead, some months later, in August 1993, the Agency offered to acquire her property for the Agency's assessed value, $340,000, adjusted downward to cover any environmental cleanup that might be necessary. Pappas refused to sell. /d. at 57a-58a. The Trial Court Proceedings On November 19, 1993, the Agency filed a complaint in eminent domain and a motion for order permitting immediate occupancy pending entry of judgment against the Pappas Family. Summons was served on Carol Pappas on December 8, 1993, making the answer due on January 8, 1994. Id. at 58a-59a. Notice for the hearing on the Agency's motion for immediate occupancy, however, was unclear. Furthermore, the Agency's motion stated that access was necessary to conduct environmental tests. The Pappas Family permitted the Agency to come on the property on December 14, 1993 to conduct the tests. Pappas thus believed that this obviated the need for the motion. In fact, though its motion did not say so, the Agency wanted full possession of the property 1/ Because the Pappas Family was and remains willing to participate as a lessor of her property in the proposed parking lot, this case did not become moot when the city entered the land, tore down the buildings, and constructed the parking garage and retail space. 7 immediately for demolition, not just access for environmental testing. /d. at 60a. The Agency appeared in court on the day following the testing, December 15, and proceeded without the Pappas Family present. The Agency represented that the Pappas Family did not oppose the motion for immediate occupancy despite knowing that the Pappas Family objected to the eminent domain proceedings and did not wish to relinquish possession of their property. The Agency also failed to inform the court that it had conducted the environmental testing identified in the motion on the previous day. Jd. at 60a. Unbeknownst to the absent Pappas Family, the trial court judge who presided over the hearing’ for immediate occupancy was an investor in one of the casinos that was a member of respondent LLC. He granted the motion, and then denied the Pappas Family's motion to reconsider. The Pappas Family then obtained new counsel, who moved successfully to have the initial trial court judge recuse himself. /d. at 60a-61a. As the new trial court judge stated in ruling upon the Pappas Family's motion to dismiss: "What the Pappas Family had owned for nearly fifty years was stripped from them in less than 50 seconds in a summary proceeding on December 15, 1993 at which they were not even present." /d. at 60a. The Pappas Family filed a motion to dismiss the condemnation suit, asserting that the taking violated the United States Constitution as well as the Nevada Constitution pee eee essence aston ae 8 and the Nevada Revised Statutes.2 At the request of the Pappas Family, the trial court required the Agency to produce the full administrative record and transformed the motion into one for summary judgment. /d. at 61a, 86a. The Trial Court's Ruling In its July 3, 1996 opinion, the trial court phrased the question before it as follows: "The underlying question in this Motion to Dismiss is whether this taking is for a public use." /d. at 77a. The court answered the question "no," ruling that the taking suffered a series of constitutional and statutory shortcomings. First, the court concluded that the 1986 Redevelopment Plan, under which the Pappas Family property was taken, failed to define the redevelopment area with sufficient specificity and, in particular, included within the redevelopment area substantial areas of property > including some of the casinos themselves as well as the Pappas Family property » for which there was no evidence of blight. Indeed, as the trial court held, the survey upon which the Agency based the 1986 Redevelopment Plan showed no blight anywhere in the affected area. /d. at 79a-86a. Thus, the court held that the designation of the redevelopment area was "arbitrary and capricious." Jd. at 86a. Next, the trial court held that the notice provided to the Pappas Family failed to inform them of their right to chailenge the conclusion that their property was blighted. /d. at 86a-87a. The court also concluded that the Agency failed to amend the 1986 Plan to include the 1993 Fremont Street os 2/ The Agency based the Fremont Street Experience project, and the condemnation of the Pappas Family's property, on the Nevada Community Redevelopment Law, Nev. Rev. Stat. ("NRS") 279.382-279.685. Pet. App. 56a, 62a-63a. 9 Experience project. Had the Agency amended the Plan, as required, it would have had to issue additional notice and hold new public hearings. /d. at 87a-9 1a. Additionally, the trial court held that the Agency also failed to comply with the requirement in NRS 279.424(2) that the Agency show it was unable to obtain the Pappas property by any other means. In this regard, the court noted that respondent LLC (which consisted of ten casinos worth billions of dollars) never even attempted to negotiate a market sale with the Pappas Family. The court held: "The takings clauses of the United States and Nevada Constitutions do not envision the Government as the transfer agent between two private landowners." Pet. App. at 93a. For all of these reasons, the trial court concluded that the taking was unconstitutional.’ The Nevada Supreme Court's Ruling The Nevada Supreme Court summarily rejected a series of procedural arguments and addressed the ruling concerning the unconstitutionality of the taking on the merits. The Court first analyzed the issue of "public use." /d. at Ila-12a. Relying heavily on Hawaii Housing Authority v. Midkiff, 467 U.S. 29 (1984), the Court stated that "so long as a 3/ After the trial court granted this motion to dismiss, related proceedings were assigned to another judge. Citing the appearance of impropriety, that judge recused himself because he had received campaign contributions from casinos that stood to benefit from a taking of the Pappases' property. City of Las Vegas Downtown Redevelopment Agency v. Eighth Judicial Dist. Court, 5 P.3d 1059, 1060 (Nev. 2000). A "chain reaction of subsequent recusals" followed because so many judges had accepted similar campaign contributions from those casinos. /d. Eventually the Nevada Supreme Court issued a writ of mandamus requiring a judge who had recused himself to retain the case despite those contributions. /d. at 1063. 10 redevelopment plan, or any individual redevelopment project, bears a rational relationship to the eradication of physical, social or economic blight, it serves a public purpose within the power of eminent domain." Pet. App. at 12a-17a. Ignoring the specific findings of the trial court concerning the absence of blight, the Court held: "Although the [Fremont Street project] benefits the casino consortium that was willing to finance the project, its focus is to provide a safe, clean, and friendly environment for visitors and businesses in general and an anchor for revitalization of the entire downtown area. This constitutes a public purpose under the United States and Nevada Constitutions." /d. at 19a. The Court then turned to the related issue of blight. /d. at 19a-24a. Here again, the Court glossed over the trial court's specific findings concerning the absence of blight in 1986, when the Agency adopted the Plan, not only on the block that was condemned, but in the entire downtown area surveyed. Rather, the Court stated: "The record reflects no basis for any conclusion that economic, social or physical blight was eradicated between the date the Plan was adopted in 1988 and the date the Fremont Street Experience project was approved in 1993."* /d. at 24a. In fact, nothing in the record suggests that the Agency made specific findings of blight at the time it approved the Fremont Street Experience project in 1993. If anything, the public record establishes the contrary to be true. At a City Council meeting at the end of December 4/ The City Council adopted the Plan cn March S, 1986, notin 1988, as the Court stated. Hence seven years (not five) had passed between the adoption of the Plan with the attendant public hearings and notice, and the taking of the Pappas Family's property. 11 1989, right in the middle of this seven year gap, Steve Wynn, the owner of one of the respondent LLC casinos, testified at length before the Agency, opposing a different condemnation plan, and forcefully disputing the notion that downtown Las Vegas was blighted: "We're talking about a hard core reality down here about business. The downtown isn't dying. Where did that idea get hot around here? The downtown doesn't need this kind of refurbishment with public money." (Gaughn Dep. Ex. B, Dec. 20, 1989 Agency Meeting Tr. at 26.) Another LLC casino owner who was present at that meeting, Jack Gaughn, later testified in a deposition in this case that he had agreed with Mr. Wynn that downtown Las Vegas was not blighted. (Gaughn Dep. at 45-47.) Ultimately, the Nevada Supreme Court relied upon Berman vy. Parker, 348 U.S. 26 (1954), to resolve the problem of the missing blight: Although the area in Berman involved slums and an urban renewal statute, rather than a community redevelopment statute, its rationale still applies. The specific building at issue in Berman was not itself blighted. The building was to be taken from a private owner and managed by a private agency. The Court concluded, however, that redevelopment encompasses an entire area, not just individually blighted sections. . . . Consistent with Berman, the fact that the Pappases' property itself was not blighted does not prohibit its taking through eminent domain proceedings. Id. at 22a-23a. Two justices dissented. /d. at 30a-4la. Justice Leavitt noted the absence of blight: ————: 12 The Pappases' property was not a slum. The City's survey gave no indication that the property was blighted in any way. There certainly were no conditions injurious to the public health, safety, morals and welfare. The property was adjacent to a savings and loan building and across the street from a bank. Id. at 31a. Because "there was no evidence of blight in or around the Pappases' property; . . . the goal of eliminating blight, which in some cases may be a legitimate public use, is not applicable in this case." /d. at 32a. Justice Maupin also dissented. Because the project "effected a material change to or deviation from the governing redevelopment plan," he concluded "that the Agency improperly failed to seek formal amendment of the Plan before taking properties as eminent domain." /d. at 34a. Further, the Pappas Family "should still have been able to lodge objections in the context of a formal plan amendment concerning the Fremont Street Experience project on the grounds that takings pursuant to the amendment would not serve to alleviate blight in the neighborhood," in other words, "were inconsistent with the goals of the original Plan, or were not effected for public use." /d. at 38a. REASONS FOR GRANTING THE PETITION This taking follows a pattern becoming an epidemic in this country that represents the very worst in abuses of the eminent domain power. See, e.g., Mississippi Churning, Editorial, Wall St. J., Jan. 4, 2002, at Al2. In the name of "economic redevelopment," the local city council strips citizens and small businesses of valuable non-blighted properties that they have worked hard to purchase and maintain, on blocks never even surveyed for blight, in 13 neighborhoods not suffering blight, and then gives those properties to wealthy, politically-connected private businesses to tear down for parking lots or other private uses that will enhance their private profits. Here, those businesses » a cartel of casinos and purveyors of adult entertainment > selected the property and financed the project. And the trial court judge who stripped the Pappas Family of their property in an ex parte hearing was an investor in one of those casinos.” Yet the Supreme Court of Nevada held that Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), required it to turn a blind eye to this blatant violation of the Pappas Family's fundamental federal constitutional right to own private property. Because "tourism and visitor volume continued to decline in downtown Las Vegas," Pet. App. 24a >» in other words, because casinos with political clout were not making as much money as they wanted to make » the Supreme Court of Nevada believed that it had to permit the city council to take private properties from their rightful and responsible owners and give those properties to covetous neighbors. But neither Berman nor Midkiff permit, much less require, courts to stand silent when local units of government act to redistribute private property that is neither blighted nor essential to remedying adjacent blight. If "blight" now encompasses a downturn in tourism as well as uninhabitable slums, and if the presence of blight 5/ The Institute for Justice included the taking of the Pappas Family's property in its report examining the abuse of eminent domain powers. See Dana Berliner, Public Power, Private Gain: A Five-Year, State-By-State Report Examining the Abuse of Eminent Domain 130-31 (2003). 14 somewhere in a city makes any property in the city ripe for "economic redevelopment" condemnation, then local governments can act as local tyrants, determining who may own property within their jurisdictions and who may not. But the Constitution, in particular the Fifth and Fourteenth Amendments, do not permit this kind of taking. This Court should issue the writ to turn this rising tide of tyranny by holding that courts must apply the "public use" limit of the Fifth and Fourteenth Amendments to bar the taking of private property that is neither blighted nor essential to remedying adjacent blight and the giving of that property to different private owners for the purpose of "economic redevelopment." I. This Court Should Issue The Writ Of Certiorari Because The Nevada Supreme Court's Reading of Berman vy. Parker and Hawaii Housing Authority v. Midkiff Violates The Public Use Protection Of The Fifth And Fourteenth Amendments. In Berman v. Parker, 348 U.S. 26 (1954), this Court reviewed Congress's legislative response to well-documented urban decay that left thousands living and dying in slums. In this case, the Nevada Supreme Court reviewed the Las Vegas city council's response to concerns that tourism was decreasing. In Berman, the taking involved a tract of segregated Washington, D.C., in which conditions were documented to be intolerable: almost two-thirds of dwellings were "beyond repair"; well over half "had outside toilets"; and over 80% 15 "lacked central heating." Jd. at 30.° The department store at issue in Berman sat in the midst of this squalor. Jd. at 31. In this case, the taking involved a valuable block of successful, diverse commercial enterprises across one street from a casino owned by respondent LLC's members, and across other streets from banks and a savings and loan, and surrounded by many other blocks of valuable commercial properties. Any supposed blight was blocks, perhaps miles, away » and the properties between were not taken. Congress's urban renewal efforts at the heart of Berman were a far cry from the reverse-Robin Hood action of the city council here. : Hawaii Housing Authority v. Midkiff; 467 U.S. 229 (1984), arises in a factual context quite distinct from that presented by this case. Relying on historical precedent from the Revolutionary War era, Midkiff upheld a statute designed to break-up a land monopoly system created by the monarchy that preceded American statehood so that American citizens could participate in the fundamental right of property ownership. /d. at 232, 241-42 & nS. This case is exactly the reverse of Midkiff’ Casino owners already own most of downtown Las Vegas, yet the Las Vegas city council passed a law to dispossess small property owners so that these oligopolistic (indeed, oligarchic) property owners could increase their property holdings in town. 6/ The district court opinion further reflects that the general death rate was 50% greater in this area than in the entire District of Columbia, with deaths from tuberculosis and syphilis occurring at an even greater rate in the afflicted area. Schneider v. District of Columbia, 117 F. Supp. 705, 709 (D.D.C. 1953). ee ee SL eee es ee, 16 Although Berman and Midkiff call for a "narrow" scope of judicial review, they do not eliminate judicial review entirely. Indeed, Midkiff specifically states: "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." 467 U.S. at 240. But the police power does not extend to taking valuable, non-blighted property that is surrounded by non-blighted property on the notion that a different owner could use the property in a different manner that might indirectly benefit the public by luring more tourists or employing more people or generating more taxes. This Court has never upheld such a taking. The repercussions of reading Berman and Midkiff so broadly as to require reflexive judicial approval of this kind of taking cannot be overstated. It is the rare community that suffers no blight, much less no economic slowdown. But according to the Supreme Court of Nevada, the mere presence of either would empower the local city council to take anyone's property anywhere in town and give it to a more profitable business or a wealthier individual. This Court should issue the writ to clarify that the Fifth and Fourteenth Amendments do not permit such an unbridled exercise of eminent domain. II. This Court Should Issue The Writ Of Certiorari To Resolve The Conflict Among The State Courts Engendered By Berman vy. Parker And Hawaii Housing Authority v. Midkiff. Berman and Midkiff are not always read so broadly. Courts in other states have disagreed with the overbroad interpretation of these cases adopted by the Supreme Court of 17 Nevada, and have prohibited very similar "economic redevelopment" takings after citing Berman and Midkiff. Furthermore, decisions on both sides of this issue often come with vigorous dissents. Such conflicts among state courts on federal issues merit this Court's review. See, e.g., Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 739 (1996) (noting "two dissents from the opinion of the Supreme Court of California" and "the opinion of the Supreme Court of New Jersey creating the conflict that has prompted us to take this case"). In Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 768 N.E.2d 1 (Ill. 2002) ("SWIDA"), for example, the Illinois Supreme Court confronted a fact situation remarkably similar to that presented in this case. The Illinois General Assembly had created SWIDA to redevelop an economically depressed two- county region. /d. at 227-28. The Gateway racetrack > a big engine of tourist income and therefore a favored business > coveted property owned by its next door neighbor, NCE > a recycling plant >» for a parking lot. /d. at 229. Gateway persuaded SWIDA to exercise its legislatively-bestowed quick-take power to seize that property and give it to the racetrack. Jd. SWIDA incanted the mantra of blight and public safety, as the Agency did here, but there, as here, any blight was distant from the taking; the taking's real reason was to improve the tourist attraction's business and thereby indirectly to enhance economic redevelopment. /d. at 9. Citing Berman and Midkiff repeatedly, see SWIDA at 7, 8, 9, the Illinois Supreme Court rejected the rationale accepted by the Nevada Supreme Court that what is good for the big businesses in town is indirectly good for everyone else in town as well, and therefore qualifies as "public use": a 18 As a result of the acquisition of NCE's property, Gateway could realize an estimated increase of $13 to $14 million in projected revenue per year. While we do not deny that this expansion in revenue could potentially trickle down and bring corresponding revenue increases to the region, revenue expansion alone does not justify an improper and unacceptable expansion of the eminent domain power of the government. Using the power of the. government for purely private purposes to allow Gateway to avoid the open real estate market and expand its facilities in a more cost-efficient manner, and thus maximizing corporate profits, is a misuse of the power entrusted by the public. Id. at 10-11.’ Similarly, in Mayor v. Thomas, 645 So. 2d 940, 941 (Miss. 1994), the Mississippi Supreme Court rejected a taking by the City of Vicksburg of property to be given to Harrah's for a casino as part of an urban renewal plan. Citing Berman, the City argued that this was a public use because Harrah's casino would result in "increased employment of the citizenry, attraction of tourists, upgrading City facilities by $500,000 received under the contract, over $15 million added to City tax rolls, and $60,000 for the construction of a park in the Urban Renewal Area." /d. at 942-43. Nevertheless, the Mississippi Supreme Court held that because "Harrah's is the primary beneficiary of the taking," this was not a public use. Id. at 943; see also City of Center Line v. Chmelko, 416 N.W.2d 401, 403-07 (Mich. Ct. App. 1987) (striking taking where City claimed that it sought to condemn property "for 7/ The dissenting opinion, however, criticized the majority's reading of Berman and Midkiff. 768 N.E.2d at 17. 19 commercial purposes in a manner that will improve the economic viability of the existing commercial district," when - in fact it intended to convey condemned land to an auto dealership that wanted to expand its parking space). This Court should issue the writ to resolve this conflict among the states and provide guidelines for applying the "public use" limitation to the "economic redevelopment" takings. It. This Court Should Issue The Writ Of Certiorari To Reconsider Berman v. Parker And Hawaii Housing Authority v. Midkiff In Light Of Dolan y. City of Tigard, To Resurrect The "Public Use" Protection Of The Fifth And Fourteenth Amendments, And Thereby To Restore The Fundamental Constitutional Right To Own Property. If Berman and Midkiff do permit the taking of one person's property for the sole purpose of giving it to another who can use it to attract more tourists or employ more people or pay more taxes, then this Court should issue the writ and modify or overrule those cases because the Constitution does not. This is the very antithesis of "public use." There can be no doubt that property ownership free from arbitrary interference by the sovereign is among the most fundamental of our constitutional rights. In the century leading up to our war for independence from Great Britain and the adoption of our Constitution, John Locke's view of government, as having evolved to protect the natural right to private property ownership, predominated. See, e.g., James W. Ely, Jr, The Guardian Of Every Other Right: A Constitutional History of Property Rights 16-17 (Kermit L. Hall ed., 2d ed. 1998) (hereafter "Ely"); Richard A. Epstein, Neen CRSTER 20 Takings: Private Property and the Power of Eminent Domain 29 (1985) (hereafter "Epstein"); Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 Harv. L. Rev. 365, 383-84 (1928). The signal importance of Britain's efforts to control taxes, trade, and property rights as a factor leading to the American Revolution is well known and indisputable. Ely at 26-29. As Arthur Lee of Virginia wrote, "The right of property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty." Arthur Lee, An Appeal to the Justice and Interests of the People of Great Britain, in the Present Dispute with America 14 (4th ed. 1775). While rallying his troops before the Battle of Long Island, George Washington made the same point: "The time is now near at hand which must probably determine whether Americans are to be freemen or slaves; whether they are to have any property they can call their own... ." John - Bartlett, Familiar Quotations 336 (Justin Kaplan‘ed., 16th ed. 1992). Delegates to the Constitutional Convention in Philadelphia gave voice to the same view. For example, John Rutledge of South Carolina stated: "Property was certainly the principal object of Society." 1 Records of the Federal Convention of 1787 534 (Max Farrand ed., rev. ed. 1966). Founding Father Alexander Hamilton likewise wrote: "One great objt. of Govt. is personal protection and the security of Property." /d. at 302. Similarly, in’ his A Defense of the American Constitutions (1787), our second President, John Adams, wrote: 21 The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If "Thou shalt not "covet" and "Thou shall not steal" were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free. John Adams, A Defence of the Constitutions of Government of the United States of America (1787-88), reprinted in Democracy, Liberty, and Property 126 (Francis W. Coker ed. 1942). The framers of the Constitution sought to protect private property rights from future sovereigns. James Madison's Fifth Amendment would limit the new federal government to taking private property only "for public use" and then only with "just compensation." U.S. Const. amend. V. But the framers also were concerned with the conduct of the states towards private property rights: "To conservatives the experience of the revolutionary period demonstrated that the state governments could not be trusted to respect property rights. A principal objective of the framers was to prevent the state legislatures from redistributing property." Ely at 44 (emphasis added). State constitutions at the time by and large having their own public use and just compensation limitations, id. at 30-31, the framers addressed their concerns at the time through the Contract Clause. /d. at 44-45. After the Civil War and the adoption of the Fourteenth Amendment, however, the Takings Clause became the first provision of the Bill of Rights to be incorporated through the Fourteenth Amendment's due process clause and thus 22 applicable to the states. See Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226 (1897); Dolan v. City of Tigard, 512 U.S. 374, 383-84 (1994). Significantly, in so ruling, this Court chose to highlight its earlier discussion, in Citizens’ Savings & Loan Ass'n v. Topeka, 87 U.S. 655, 663 (1874), of limits on "our governments, state and national." Specifically, the Court stated: "No court, [Mr. Justice Miller] said, would hesitate to adjudge void any statute declaring that 'the homestead now owned by A. should no longer be his, but should henceforth be the property of B."" Chicago, Burlington & Quincy R.R. Co., 166 U.S. at 237, quoting Citizens' Savings & Loan Ass'n, 87 U.S. (20 Wall.) at 663. Well into the Twentieth Century, this Court considered "public use" to be an issue for the courts: "It is well- established that, in considering the application of the Fourteenth Amendment to cases of expropriation of private property, the question what is a public use is a judicial one." City of Cincinnati v. Vester, 281 U.S. 439, 446 (1930). But little more than 20 years later, Berman sharply curtailed the scope of judicial review to "an extremely narrow one." 348 U.S. at 32. The cases Berman cites in support of this proposition are wholly distinguishable. Old Dominion Land Co. v. United States, 269 U.S. 55 (1925), involved the taking of land on which the Government had constructed a costly military installation after the owner had refused to renew the Government's lease for the property it had improved. United States ex rel. Tennessee Valley Authority v. Welch, 327 U.S. 546 (1946), involved the taking of property incident to a TVA dam project. Neither case involved a challenge that the taking at issue was "a taking 23 from one businessman for the benefit of another businessman." 348 U.S. at 33. Even so, Justice Frankfurter wrote a concurring opinion in Welch noting his understanding that "the Court again recognizes the doctrine that whether a taking is for a public purpose is not a question beyond judicial competence." 327 U.S. at 557-58. Berman discusses the breadth of the police power at great length. 348 U.S. at 31-36. Yet it addresses the rights of property owners in but a single sentence: "The rights of these property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as the price of the taking." /d. at 36. This summary treatment has prompted more than one scholar to conclude that Berman and Midkiff wrote the words "public use" out of the Fifth Amendment: "The Supreme Court, for all practical purposes, has eliminated the ‘public use’ requirement as a check on the power of government to appropriate private property by means of eminent domain." Ely at 148 (citing Berman); Epstein at 161 (Berman dealt the public use limitation a "mortal blow"); Thomas W. Merrill, The Economics of Public Use, 72 Cornell L. Rev. 61, 61 (1986) ("most observers today think the public use limitation is a dead letter"); Donald J. Kochan, "Public Use" and the Independent Judiciary: Condemnation in an Interest Group Perspective, 3 Tex. Rev. L. & Pol. 49, 74 (1998) (hereafter "Kochan") (the public use limitation is a "meaningless standard of review"). The Nevada Supreme Court gave Berman and Midkiff just such an overbroad reading. But the framers did include a "public use" requirement in the Fifth Amendment. And this Court should read the Constitution to give effect to express language of the framers, 24 particularly in the Bill of Rights. "As men whose intentions require no concealment, generally employ words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824). Moreover, the framers provided the means _ for eliminating provisions from the Constitution, i.¢., the amendment power. U.S. Const. art. V. No amendment has removed the "public use" limitation from the Fifth Amendment. This Court should therefore give effect to this limitation in the context of these: abusive economic redevelopment takings. Takings for "economic redevelopment" demonstrate why the "just compensation" limitation alone offers insufficient protection for the constitutional right to own _ property. Economic redevelopment takings often (as here) target valuable non-blighted property. Indeed, the private businesses that will get the taken properties often select or participate in selecting the properties to be taken, and then fund, either entirely or in part, the taking. (Pet. App. 55a; see also SWIDA, 768 N.E.2d at 4-5, 10.) These businesses are more than happy to fund these takings because they get a better price through the government at a just compensation hearing than they would in the open market. See Kochan at 53. After all, a jury is setting the price rather than the property's rightful owner, and the jury is told that the price will be paid by a unit of local government (most likely one that the jurors are supporting themselves through their tax payments).. 25 As the history of our Revolution and of our Constitution amply establishes, the right to own private property is a fundamental constitutional right. But Berman and Midkiff are inconsistent with the treatment this Court affords other fundamental constitutional rights incorporated through the Fourteenth Amendment. E£.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000) (content-based speech regulations are subject to strict scrutiny); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) (non-general law burdening religious practice is subject to strict scrutiny). This Court would not abide a local legislative judgment that all members of one race or one religion should live together. E.g., Adarant Contractors, Inc. v. Pena, 515 U.S. 200, 227 (1995) ("all racial classifications . . . must be analyzed... under strict scrutiny"). Our constitution does not create a set of second-class rights for property ownership. As this Court said recently in Dolan, "We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation... ." 512 U.S. at 392. Indeed, there is good reason why property rights are so fundamental: The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a 'personal' right... . In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. 26 Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972), citing J. Locke, Of Civil Government 82-85 (1924); J. Adams, A Defence of the Constitutions of Government of the United States of America, in F. Coker, Democracy, Liberty, and Property 121-132 (1942); 1 W._ Blackstone, Commentaries * 138-140. Nothing suggests that when determining whether a "deprivation" of property » as opposed to speech or travel > is "unlawful," Lynch, 405 U.S. at 552, courts must yield entirely to the legislatures. Yet the Supreme Court of Nevada reads Berman to say that the courts must bow to a legislative judgment that the private property of one citizen may be taken from her and, in the name of "economic redevelopment," given to her neighbor because that neighbor can put it to more profitable use: "the United States Supreme Court has concluded that when a legislative body decides that a need for redevelopment serves the public, its decision is 'well-nigh conclusive." Pet. App. 2a., quoting Berman, 348 USS. at 32. This is not a judicial standard; it is judicial abdication. Courts are the instrumentalities through which the government takes property. But courts are sworn to uphold the Constitution; they cannot be required to carry out unconstitutional legislation reflexively. "To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under 27 the forms of law... ." Citizens’ Savings & Loan Ass'n, 87 U.S. (20 Wall.) at 664 (emphasis added).* Courts should not be complicit in such robbery » rather they should be "an impenetrable bulwark against every assumption of power in the Legislative or Executive; . . . to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." Davis v. Passman, 442 U.S. 228, 241-42 (1979), quoting James Madison, reproduced in 1 Annals of Cong. 439 (1789). The "rationally related" test that Midkiff takes from Berman, see 467 U.S. at 241, leaves courts ill-prepared to serve as that bulwark against local governments redistributing private property rights in the name of "economic redevelopment." Indeed, in Dolan this Court rejected the "reasonable relationship" test for exactions, "partly because the term ‘reasonable relationship’ seems confusingly similar to the term 'rational basis’ which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment." 512 U.S. at 391. If heightened scrutiny is required where a local authority "would deprive [a landowner] of the right to exclude others, ‘one of the most essential sticks in the bundle 8/ The Court in Citizens’ Savings & Loan Ass'n addressed a tax, not a taking. But by its very nature an improper taking is more insidious than an improper tax. Taxes address classes of people, which by dint of their size have at least a chance to roll back the offending legislation through exercise of the franchise. Takings typically address individuals or very small groups who are far less likely to have electoral strength. Further, new owners of property typically alter the property promptly upon receiving it (as happened here), making the undoing of a taking far more difficult. Moreover, taking a person's property may even drive her out of the electoral district. Therefore, what Citizens’ Savings & Loan Ass'n said of improper taxes is even more accurate for improper takings. 28 of rights that are commonly characterized as property," id. at 384, quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979) (emphasis removed), it surely must be required where the local city counsel grabs the entire bundle, and then passes it to another private owner.’ This Court should issue the writ and address how courts should scrutinize takings under the Fifth Amendment "public use" protection to limit abusive "economic redevelopment" takings like this one. CONCLUSION "A government . . . which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism." Citizens’ Savings & Loan Ass'n, 87 U.S. (20 Wall.) at 662 (emphasis added). Taking property from a private citizen to promote the economic redevelopment of a community may sound good, but it is an evil » and all the more insidious because it seems that so many people will benefit from just one person's loss. The problem is that not just one person loses » everyone loses because everyone's ownership rights are diminished. This concept, in fact, has been tried elsewhere in the world and has failed abysmally: "the theory of the Communists may be summed up in the single sentence: abolition of private property." Karl Marx & Friedrich Engels, The Communist Manifesto (1848), 9/ Although this Court declined to extend the Dolan test from exactions to denials of development in City of Monterey v. Del Monte Dunes at Monterey, Lid., 526 U.S. 687, 702-03 (1999), this 'exaction' of the Pappas Family's property in foto fits more closely with Dolan than Del Monte Dunes. 29 reprinted in 50 Great Books of the Western World 425 (Robert Maynard Hutchins ed. 1952). As 1974 Nobel Laureate Friedrich A. Hayek wrote in The Road To Serfdom 103-04 (1944), "What our generation has forgotten is that the system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not." Berman and Midkiff do not expressly approve of "economic redevelopment" takings. But the Supreme Court of Nevada read those cases as requiring it to defer to the city council despite the detailed findings of the trial court below concerning the absence of any blight in the area. Other state courts have not read Berman and Midkiff so broadly, thus creating a conflict that this Court should resolve » by concluding that these cases do not, or may not, permit such unconstitutional takings to proceed. Writing in support of the ratification of the Constitution, James Madison, who authored the Fifth Amendment, states that "[g]overnment is instituted no less for protection of the property than of the persons or individuals." The Federalist No. 54, at 333 (James Madison) (Isaac Kramnick ed., 1987). 30 The Pappas Family respectfully requests this Court to grant their petition for writ of certiorari and to provide the "protection of the property," as Madison and the framers intended. January 6, 2004 Barry Levenstam Counsel of Record Jeremy M. Taylor John W. Joyce Melinda E.A. Cupps JENNER & BLOCK LLP One IBM Plaza Chicago, IL 60611 (312) 222-9350 APPENDICES la Appendix A Supreme Court of Nevada. CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY; Fremont Street Experience Limited Liability Company, and Fremont Street Experience Parking Corp., Appellants/Cross-Respondents, v. Carol PAPPAS; John H. Pappas, Jr.; and Harry J. Pappas, Respondents/Cross-Appellants. No. 39255. Sept. 8, 2003. Before the Court En Banc. OPINION By the Court, BECKER, J.: This is an appeal from a district court order granting respondents’ motion to dismiss in an eminent domain action and a cross-appeal from a district court order dismissing respondents’ counterclaims in the same _ action.” Appellants/cross-respondents, the City of Las Vegas Downtown Redevelopment Agency (Agency), Fremont Street Experience Limited Liability Company, and Fremont Street 'The Honorable Mark Gibbons, Justice, voluntarily recused himself from participation in the decision of this matter. "Judge Chairez dismissed the eminent domain action; Judge Huffaker and Judge Mark Denton dismissed the counterclaims. 2a Experience Parking Corp. (collectively Fremont Street Experience), argue the district court erred in entering an order dismissing the Agency’s eminent domain complaint. Respondents/cross-appellants Carol Pappas, John H. Pappas, Jr., and Harry J. Pappas (collectively the Pappases) contend that the district court erred in entering an order dismissing their counterclaims. We conclude the district court erred in dismissing the eminent domain complaint and those portions of the counterclaims that seek damages for alleged pre-condemnation interference with the Pappases’ tenants. We further conclude that the district court did not err in dismissing the remaining counterclaims. Both the United States and Nevada Constitutions allow the taking of private property for public use provided just compensation is paid to the private property owner.’ The Nevada Legislature has clearly defined economic redevelopment as a public purpose.’ And, the United States Supreme Court has concluded that when a legislative body decides that a need for redevelopment serves the public, its decision is “well-nigh conclusive.” There is no exception to the rule “because the power of eminent domain is involved.” When substantial evidence supports an agency’s determination that a specific project furthers economic redevelopment under NRS Chapter 279, the project is for a public purpose. The sole remaining issue for a jury to determine is just compensation. We conclude that in this case, substantial evidence supports the Agency’s determination that the project in issue facilitates See U.S. Const. amend. V; Nev. Const. art. 1, § 8, cl. 6. 4NRS 37.010(17). ‘Berman vy. Parker, 348 U.S. 26, 32, 75 S. Ct. 98, 99 L. Ed. 27 (1954). "Id. 3a redevelopment. Thus, we conclude that the Agency’s use of eminent domain was constitutionally permissible and the district court therefore erred in dismissing the Agency’s eminent domain complaint. FACTS On November 6, 1985, the Las Vegas City Council (Council) created the Agency to tackle redevelopment issues under NRS Chapter 279.’ The Agency’s board is comprised solely of Council members. NRS Chapter 279 identifies redevelopment to eliminate blight as a public purpose. The Council identified various sections of the city, including the area commonly known as downtown Las Vegas, for the Agency to. evaluate and determine whether redevelopment was necessary to combat physical, social, or economic blight. The downtown section identified included property owned by the Pappases. The Agency directed its staff and the City’s Planning Commission to evaluate the identified area and prepare a report on any conditions showing physical, social, and economic blight in the area. The ensuing report identified various physical, economic, and social conditions within the area constituting “blight” within the definition set forth in NRS 279.388.*° These conditions included increased ’NRS 279.428 states, “An agency shall not transact any business or exercise any powers under NRS 279.382 to 279.685, inclusive, unless, by resolution, the legislative body declares that there is need for an agency to function in the community.” *NRS 279.388 provides: “Blighted area” means an area which is characterized by one or more of the following factors: 4a crime rates and requests for police assistance, business flight 1. The existence of buildings and structures, used or intended to be used for residential, commercial, industrial or other purposes, or any combination thereof, which are unfit or unsafe for those purposes and are conducive to ill health, transmission of disease, infant mortality, juvenile delinquency or crime because of one or more of the following factors: (a) Defective design and character of physical construction. (b) Faulty arrangement of the interior and spacing of buildings. (c) Overcrowding. (d) Inadequate provision for ventilation, light, sanitation, open spaces and recreational facilities. (ec) Age, obsolescence, deterioration, dilapidation, mixed character or shifting of uses. 2. An economic dislocation, deterioration or disuse, resulting from faulty planning. 3. The subdividing and sale of lots of irregular form and shape and inadequate size for proper usefulness and development. 4. The laying out of lots in disregard of the contours and other physical characteristics of the ground and surrounding conditions. 5. The existence of inadequate streets, open spaces and utilities. 6. The existence of lots or other areas which may be submerged. 7. Prevalence of depreciated values, impaired investments and social and economic maladjustment to such an extent that the capacity to pay taxes is reduced and tax receipts are inadequate for the cost of public services rendered. 8. A growing or total lack of proper utilization of some parts of the area, resulting in a stagnant and unproductive condition of land which is potentially useful and valuable for contributing to the public health, safety and welfare. 9. A loss of population and a reduction of proper use of some parts of the area, resulting in its further deterioration and added costs to the taxpayer for the creation of new public facilities and services elsewhere. The Legislature adopted this provision in 1959. See 1959 Nev. Stat., ch. 418, § 7, at 648-49. It has been amended only once, in 1985. See 1985 Nev. Stat., ch. 639, § 11, at 2068-69. Sa from the downtown area, decline in tourism, lack of parking, visitor and residents’ perceptions of lack of safety in the area, and increases in vacant and aging buildings. Based upon this evidence, the Planning Commission submitted a redevelopment plan (Plan) to the Agency. The Agency accepted the proposed Plan, reviewed the information submitted to the Planning Commission, and decided to consider adopting the Plan. Pursuant to statute, the Agency then provided notice of a public hearing to landowners affected by the proposed Plan. At the hearing, members of the public acknowledged that significant problems existed in the downtown area. Some individuals disagreed, however, with the adoption of a redevelopment plan. Instead, they urged the Agency to work with individual landowners and businesses, and to provide money for renovations, promotions, and other methods for cleaning up and bringing people back to the downtown area. After considering the public comments, the Agency approved the Plan. The Agency determined that blight was causing a serious physical, social, and economic burden on the City in all applicable downtown areas. The Agency concluded that working with individuals on a piecemeal basis would not stem the decline of the downtown area. The Agency also concluded that neither the City, nor the private sector, acting alone, had the resources to accomplish the redevelopment goal. The Agency found that only the combined redevelopment efforts of the City and the private sector would improve the area. The Plan provided a framework for all future redevelopment. It was intentionally general; it included no specific projects. The purpose, however, was to eliminate physical, social, and economic blight and to encourage businesses and individuals 6a to return to a safe downtown area with adequate parking and facilities. The Plan provided business and property owners in the area an opportunity to propose and participate in projects that would eliminate physical, social, and economic blight as well as mechanisms for encouraging investors to develop new projects in the area. The Agency could also use its power of eminent domain to acquire private property for projects designed to eliminate social and economic blight. Neither the Pappases nor any other person challenged the Plan within the ninety-day period following its adoption, as required by statute.” The Plan created a conclusive presumption that the area encompassing the Pappases’ property was blighted under the Community Redevelopment Law."° Several years passed between the adoption of the Plan and the events that led to the present action. Over that period, the Agency approved several projects. Some succeeded and some did not. The downtown area continued to lose ground. Finally, to accomplish redevelopment and eliminate physical, social, and economic blight in the core downtown area, the Agency considered various proposals for an anchor project. The Agency sought a concept that would be a feature attraction in downtown Las Vegas. The ideal project would create a safer, cleaner environment designed to draw visitors and businesses back to the downtown area. This increase in activity would then encourage additional businesses to relocate to areas outside of, but adjacent to the core. As businesses returned, *NRS 279.609 states in part, “Any action questioning the validity of ...{[t]he adoption or approval of that plan... may only be brought after the adoption of the plan .. . or within 90 days after the date of adoption of the ordinance adopting . . . the plan.” "See NRS 279.589. Ta improvement of residential areas would follow. Thus, in conjunction with the feature attraction, the City also considered creating new business or shopping venues in the area. Eventually, the concept known as the Fremont Street Experience surfaced as the anchor project to accomplish the Agency’s redevelopment goals. Several components comprised the Fremont Street Experience, including a sculpted steel mesh canopy stretching across Fremont Street from Main to Fourth Streets. The canopy would allow light and air flow during daylight hours but would provide shade for tourists. At night, however, the Fremont Street Experience would present a sound and light show. In addition, the Fremont Street Experience would create a pedestrian plaza by closing Fremont Street to vehicular traffic from Main Street to Las Vegas Boulevard. Finally, because of a lack of adequate public parking, plans for the Fremont Street Experience included a five-story public parking structure with some retail and office space. Because the Agency lacked the financial resources to construct the project alone, it entered into an agreement with a consortium of downtown casinos. The consortium would finance and cover any operating losses of the feature attraction as well as the construction of the parking garage. The City would authorize the creation of the pedestrian mall, and the Agency would provide funds to acquire the land needed to construct the garage. In return for the risk taken by the consortium in absorbing all of the construction costs, start- up losses, and possible operating losses, the consortium would control the operation and revenues of the garage as well as the operation of the feature attraction. The Council approved the Fremont Street Experience project in Bill No. 93-55. Under the project’s plans, the parking garage would occupy an 8a entire city block. The chosen block was composed of thirty-two individual parcels in multiple ownerships. The Pappases owned three of these parcels, composing a small portion of the block. The Agency sent the Pappases an offer to purchase their property. The Pappases refused but indicated their willingness to enter into a ground lease with the Agency. Although the Agency initially indicated its willingness to enter into a ground lease, it determined that a ground lease was not feasible, as financing for the garage would not permit such an arrangement. The Agency therefore rejected this proposal and adopted a resolution to acquire the Pappases’ land, if necessary, by eminent domain. After further negotiations to purchase failed, on November 19, 1993, the Agency filed the eminent domain complaint to acquire the Pappases’ property. The Agency moved for immediate occupancy pending entry of judgment. The Pappases failed to oppose the motion, which the district court granted. The Agency gained possession of the Pappases’ land effective January 15, 1994. The Pappases filed an answer and counterclaim, alleging six causes of action: (1) the Agency violated the Pappases’ procedural due process rights in its initial motion for occupancy, (2) the Agency improperly took the Pappases’ property through inverse condemnation by its initial motion for occupancy, (3) the Agency encouraged the Pappases’ tenants to vacate and not pay rent because of the impending condemnation, (4) the Agency engaged in_ intentional interference with business opportunities, (5) the Agency \ violated the Pappases’ substantive due process rights by failing to adequately compensate them for the taking, and (6) the Agency failed to allow the Pappases to participate in the redevelopment project as statutorily required. 9a The Pappases then filed a motion for rehearing regarding the Agency’s immediate occupancy. The district court denied the motion. The Agency took possession of the property, began demolishing the existing building, and commenced construction of the parking garage.’ Thereafter, the Agency filed a summary judgment motion on all of the Pappases’ counterclaims. The district court found no genuine issue of material fact as to the first five counterclaims, noting that they were subsumed within the original eminent domain complaint, and the counterclaims for monetary damages could be pursued as a part of the just compensation in the eminent domain action. The district court denied the summary judgment motion regarding the Pappases’ right of participation in the redevelopment project. The Pappases appealed the dismissal of their counterclaims, but because the district court’s decision was not a final judgment resolving all -of the claims between the parties, this court dismissed the appeal for lack of jurisdiction. Over three years after the district court had granted the motion for occupancy and the garage had been constructed, the Pappases filed a motion to dismiss the Agency’s eminent domain complaint.'* The Pappases alleged the following: (1) the exercise of the power of eminent domain was without legal justification because the redevelopment plan was fatally ''We note that the appropriate vehicle for challenging an order granting a motion for immediate occupancy is a petition for writ relief, as an appeal of this interlocutory order is unavailable under NRAP 3 A(b). "The motion was also filed shortly before a trial was to begin on the value of the Pappases’ property. The appraiser for the City valued the property at approximately $500,000, while the Pappases’ appraiser valued the property at $1,400,000. The Pappases disagreed with their own appraiser and believed their property was worth $7,000,000. Fe ee 10a deficient, (2) the district court lacked jurisdiction because the Agency improperly invoked the power of eminent domain, (3) the Agency negotiated with the Pappases in bad faith, and (4) the Agency violated the Pappases’ procedural due process rights by violating the Nevada Rules of Civil Procedure. Shortly thereafter, Fremont Street Experience moved, and was granted permission to intervene in the pending litigation. In their motion to dismiss, the Pappases attached minutes from the City Council meetings regarding the Fremont Street Experience, the Fremont Street Experience agreement, and various other affidavits and records regarding the project. In addition, the district court ordered the Agency to prepare a record of the administrative proceedings that led to the eminent domain complaint. Thus, the motion to dismiss was converted into one for summary judgment. After considering the evidence and conducting a hearing, the district court dismissed the Agency’s complaint. The district court concluded: (1) the construction of the garage did not preclude the Pappases from contesting the project’s public purpose; (2) the ninety-day statute of limitations in NRS 279.609 did not preclude judicial review of the taking; (3) the Agency lacked authority to condemn the property because it failed to amend the redevelopment plan, and the district court lacked jurisdiction to hear the Agency’s eminent domain complaint; (4) the Agency lacked authority to use eminent domain because there were other less restrictive means to obtain the property; (5)the Agency acted in bad faith regarding Owner participation in the project; (6) despite finding redevelopment a statutorily valid public use, the Agency’s taking of the Pappases’ property was not a public use because of the above statutory violations; and (7) the Agency failed to act in good faith regarding negotiations for the property. The lla district court eventually dismissed the one remaining counterclaim, finalizing the judgment by resolving all of the pending claims. This appeal and cross-appeal followed. DISCUSSION The district court’s findings in support of dismissing the eminent domain complaint encompass four primary issues: (1) whether the Pappases are procedurally barred from challenging the legality of the eminent domain proceedings based on the doctrines of estoppel or waiver, (2) whether the taking constitutes ‘a “public use” under the Nevada and Federal Constitutions, (3) whether the Project furthers the purpose of eliminating blight under the community redevelopment statutes, and (4) whether the taking was necessary to further a public use.’° Estoppel/waiver Appellants contend that the district court erred in permitting the Pappases to challenge whether the parking structure constituted a public use and the necessity of the taking three years after the motion for occupancy was granted. Appellants argue that the Pappases should have opposed the original motion for occupancy or asserted such issues in their motion for reconsideration. Moreover, appellants allege that the Pappases should have sought an extraordinary writ in this court directing the district court to vacate its orders granting the motion for The district court’s remaining findings in support of the dismissal deal with challenges to the scope of the Plan and the need to amend the Plan whenever a particular project is undertaken. We recently rejected similar challenges in Las Vegas Downtown Redevelopment v. Crockett, 117 Nev. 816, 34 P.3d 553 (2001). a 12a occupancy and denying the motion for reconsideration. We agree that issues regarding whether the proposed taking constitutes a “public use” under the Nevada and Federal Constitutions and whether the taking is necessary to accomplish that public purpose are issues to be addressed at the early stages of an eminent domain proceeding. Such issues need to be resolved before the existing property is substantially altered. However, we have never held that a party seeking dismissal of an eminent domain complaint based on lack of public use or necessity grounds must raise the issues in opposition to a motion for occupancy or in a motion to dismiss filed before the subject property is significantly altered. Nor have we indicated that the failure to file a petition for extraordinary relief from an order granting a motion for occupancy or denying a motion to dismiss implicates the doctrines of waiver or estoppel. Therefore, we decline to apply these doctrines to the facts of this case. However, forall eminent domain cases filed after the date of this opinion, such challenges must be raised prior to occupancy and material demolition, alteration or construction on the subject property. Failure to timely assert lack of public use or necessity will constitute a waiver of these issues. Public use The United States Constitution declares that no private property shall “be taken for public use, without just compensation.”'* The Constitution of the State of Nevada similarly provides that “[p]rivate property shall not be taken for public use without just compensation having been first made.” '° '4U)_S. Const. amend. V. "Nev. Const. art. 1, § 8, cl. 6. 13a As the Illinois Court of Appeals eloquently acknowledged, “What constitutes a ‘public purpose’ . . . has plagued the American judiciary ever since it arrogated to itself the [prerogative] of interpreting constitutions.”'® A narrow interpretation requires actual use by the public.'’ A broad interpretation includes any “use [that] concerns the whole community or promotes the general interest-in its relation to any legitimate object of government.””"® When construing the Federal Constitution, the United States Supreme Court broadly interprets the term “public use” and has rejected the concept that the Constitution requires actual use of the condemned property by the public.'’ Historically, this court has also broadly interpreted “public use” to include public utility, benefit, and advantage.” In fact, the majority of courts that have considered this issue, under state constitutions with language similar to Nevada’s, have adopted broad interpretations of “public use.””! "Lake Louise Imp. v. Multimedia Cablevision, 157 Ml. App. 3d 713, 109 Ill. Dec. 914, 510 N.E.2d 982, 984 (1987). See Thornton Development Authority v. Upah, 640 F. Supp. 1071, 1077 (D. Colo.1986) (actual use like parks or streets). 'SSouthern California Edison Co. v. Rice, 685 F.2d 354, 356 (9th Cir. 1982) (quoting City of Oakland v. Oakland Raiders, 32 Cal.3d 60, 183 Cal. Rptr. 673, 646 P.2d 835, 841 (1982) (quoting Bauer v. County of Ventura, 45 Cal. 2d 276, 289 P.2d 1, 6 (1955))). "Rindge Co. v. Los Angeles, 262 U.S. 700, 707, 43 S. Ct. 689, 67 L. Ed. 1186(1923); Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 159-62, 17S. Ct. 56, 41 L. Ed. 369 (1896). Dayton Mining Co. v. Seawell, 11 Nev. 394, 408 (1876); see also Milchem Inc. v. District Court, 84 Nev. 541, 548, 445 P.2d 148, 152 (1968). 712A Julius L. Sackman, Nichols on Eminent Domain §§ 7.01[1], 7.02[3] (rev.3d ed.2003). 14a Appellants contend that the district court used too narrow an interpretation in finding that accomplishing redevelopment through the construction of the parking garage was not a public use subject to the exercise of eminent domain. The Pappases claim that the garage is not a proper public use, even under the broader definition of public use, because the garage will be owned and operated by a private entity. The Pappases assert that whenever eminent domain involves the transfer of land from one private individual to another private individual, such a transfer is not for a public purpose. The United States Supreme Court has soundly rejected the notion that transfer of land ownership from one private individual to another automatically falls outside the power of eminent domain. In Hawaii Housing Authority v. Midkiff,’ the High Court considered this issue in the context of a Hawaii statute designed to diversify land ownership in Hawaii. The Hawaii Legislature enacted the Land Reform Act of 1967(Act) to break up a land oligopoly that had been in existence for hundreds of years.”* To accomplish this goal, the Act allowed certain land to be condemned and then transferred from the landowner to other individuals who had previously leased the land from the landowner.** Under the Act, taking private property from the oligopoly of landowners and distributing the land to existing tenants was deemed to be a public purpose.” The Midkiff Court held that “deference to the legislature’s ‘public use’ determination is required ‘until it is shown to 2467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984). 31d. at 232-33, 104 S. Ct. 2321. "Id. at 233, 104 S. Ct. 2321. Id. at 233-34, 104 S. Ct. 2321. 15a involve an impossibility.’’’° Continuing, the Court pointed out that it would “not substitute its judgment for a legislature’s judgment as to what constitutes a public use ‘unless the use be palpably without reasonable foundation.’””’ The Court held that controlling the oligopoly was a reasonable exercise of Hawaii’s police power.”* Although the Court recognized that the Act might not correct the problem, it concluded that “‘the [constitutional requirement] is satisfied if . the . . . [state] Legislature rationally could have believed that the [Act] would promote its objective.’””’ In this respect, the Court observed that the courts are not the place for “empirical debates over the wisdom of takings.”*° Accordingly, “if a legislature . . . determines there are substantial reasons for an exercise of the taking power, courts must defer to its determination that the taking will serve a public use.’”! We have also rejected the concept that public ownership of the condemned property is essential to public use. In Urban Renewal Agency v. lacometti,”” we indicated that “[p]oscesory use by the public is not an indispensable prerequisite to the **Id. at 240, 104 S. Ct. 2321 (quoting Old Dominion Land Co. v. United States, 269 U.S. 55, 66, 46 S. Ct. 39, 70 L. Ed. 162 (1925)). “Id. at 241,104 S. Ct. 2321 (quotins United States v. Gettysburg Electric Ry., 160 U.S. 668, 680, 16 S. Ct. 427 4 Ed. 576 (1896)). 87d. at 242,104 S. Ct. 2321. "1d. (quoting Western & Southern L.I. Co. v. Bd. of Equalization, 451 U.S. 648, 671-72, 101 S. Ct. 2070, 68 L. Ed. 2d 514 (1981) (alteration in original)). 71d. at 243,104 S. Ct. 2321. "1d. at 244, 104 S. Ct. 2321. 279 Nev. 113, 379 P.2d 466 (1963). l6a lawful exercise of the power of eminent domain.””’ We further explained that “[t]he rights of the [property owners] will be constitutionally satisfied when they receive just compensation for their properties.” The Nevada Legislature, by enacting the Community Redevelopment Law, has declared that physical, social, and “economic blight constitute ‘‘a serious and growing menace which is condemned as injurious and inimical to the public health, safety and welfare of the people.’ Further, the Legislature has specifically found that blight decreases property values” and increases crime, which necessarily causes a disproportionate allocation of public services such as police, fire and accident protection in blighted areas.*’ The Legislature has declared that a community can exercise the power of eminent domain “whenever the redevelopment of blighted areas cannot be accomplished by private enterprise alone.”* More importantly, NRS 279.424(3) specifically provides that “the redevelopment of blighted areas and the provision for appropriate continuing land use .. . constitute public uses and purposes .. . and are governmental functions of state concern in the interests of health, safety and welfare of the people.” Thus, so long as a redevelopment plan, or any individual redevelopment project, bears a rational relationship to the eradication of physical, social or economic blight, it serves a 37d. at 126,379 P.2d at 472-73. 41d. at 127, 379 P.2d at 473. *NRS 279.418(1). *°NRS 279.420. INRS 279.418(3). ~ 3NRS 279.424(2). 17a public purpose within the power of eminent domain. The focus of the inquiry is whether the plan or project serves the public purpose, not whether the condemned property is eventually owned by a public or private entity. In this case, there is a rational relationship that justifies the exercise of the power of eminent domain. The determination that the project would serve a public use is not “‘palpably without reasonable foundation.”””’ To the contrary, the record indicates the Agency’s purpose for entering into a redevelopment agreement with Fremont Street Experience was to construct a safe entertainment street mall to attract visitors and businesses back to the downtown area. The garage was planned to ensure that adequate off-street public parking would be available for patrons of the downtown businesses. The entire project was designed to encourage additional revitalization projects spreading out from the central core of the downtown area. Thus, the project’s central focus was to combat economic, social, and physical blight, a public purpose as defined by the Legislature. It is this feature that distinguishes the anchor attraction and garage from cases where courts have dismissed eminent domain complaints because the taking was not for a public use.*” In those cases, the courts found that eminent domain Midkiff, 467 U.S. at 241, 104 S. Ct. 2321 (quoting Gettysburg Electric Ry., 160 U.S. at 680, 16 S. Ct. 427). Cf Armendariz v. Penman, 75 F.3d 1311, 1320-21 (9th Cir. 1996); 99 Cents Only Stores v. Lancaster Redevelopment, 237 F. Supp.2d 1123, 1128-31 (C.D. Cal. 2001); Wilmington Pkg. Auth. v. Land W/Improvements, 521 A.2d 227 (Del. 1986); Southwestern Ill. Development Auth. v. NCE, 304 Ill. App. 3d 542, 238 Ill. Dec. 99, 710 N.E.2d 896 (1999), aff'd, 199 Ill. 2d 225, 263 Ill. Dec. 241, 768 N.E.2d 1, cert. denied, 537 U.S. 880, 123 S. Ct. 88, 154 L. Ed. 2d 135 (2002). 18a proceedings were not instituted to accomplish a public purpose, such as the elimination of blight. Rather, the courts indicated that the sole purpose for acquiring the property through condemnation proceedings was to benefit another private entity.*' Although, in these cases, the property to be condemned in each case was located in an area designated for redevelopment, the individual projects did not further redevelopment goals. Instead, the projects were simply expansions of existing business concerns. The businesses needed more parking or larger retail space and they wanted to acquire their neighbors’ land to accomplish those purposes. When the neighbors did not agree, the businesses sought to use the redevelopment acts and eminent domain to acquire the property.” The courts found a lack of substantial evidence to support the government’s assertion that the project expansions were designed to combat physical, economic or social blight. There was no evidence that the areas in question suffered from high crime, unemployment, vacant business or other components of blight that would be addressed by the proposed projects.*? In contrast, when a project is intended to attack blight, such as creating a significant increase in jobs in an area suffering from high unemployment, even the relocation of one business through condemnation to make way for a new "99 Cents Only Stores, 237 F. Supp. 2d at 1129-31 (eminent domain cannot be used solely to permit expansion of large retail store at expense of small retail business); Wilmington Parking Auth., 521 A.2d at 234-35 (eminent domain improper where sole purpose was to permit newspaper to expand physical plant); Southwestern Ill. Development Auth., 238 Ill. Dec. 99, 710 N.E.2d at 904 (no public purpose found where sole reason for eminent domain was expansion of raceway parking facilities). 9 . See cases cited supra note 41. ?See cases cited supra note 41. 19a business is still considered a public purpose.” The creation of a public pedestrian mall and entertainment attraction is not the expansion of a business entity. The record reflects that the garage was not built to service a single business, but to address inadequate public parking in the downtown area and the need for new parking as visitor volume increased in response to the attraction. Although the attraction benefits the casino consortium that was willing to finance the project, its focus is to provide a safe, clean, and friendly environment for visitors and businesses in general and an anchor for revitalization of the entire downtown area. This constitutes a public purpose under the United States and Nevada Constitutions. Blight The district court found that substantial evidence did not support the Agency’s finding that the area in which the Pappases’ property was located was blighted; therefore, the inclusion of this area in the redevelopment plan was improper and the property was not subject to eminent domain proceedings. Appellants contend that the district court lacked authority to consider this issue because all challenges to a redevelopment plan must be brought within ninety days of the plan’s adoption. “Blight” is a term used to describe physical, social or economic “Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616, 304 N.W.2d 455, 458-59 (1981) (taking of property to facilitate construction of automobile plant permitted where area suffered from severe economic conditions and new industrial development was necessary to combat social and economic blight resulting from high unemployment). 20a conditions that affect the health, safety or welfare of a community.*° There is no question that blight takes on many forms. Physical blight refers to a community’s infrastructure, such as poorly designed streets, inadequate public facilities, building code violations, and substandard housing.** Slums are a common example of physical blight. Social blight incorporates such aspects as high crime or unemployment rates.*’ Economic blight involves downward trends in the business community, relocation of existing business outside of the community, business failures, and loss of sales or visitor volumes.”* For an area to be included in a redevelopment plan, there must be a finding that the general area suffers from some form of blight and that redevelopment is necessary to eliminate that blight.” If an agency’s finding of blight is supported by substantial evidence, it is not subject to judicial review.” Substantial evidence is that which a “reasonable mind might accept as adequate to support a conclusion.””! Berman, 348 U.S. at 31,75 S. Ct. 98; Sweetwater Valley Civic Ass'n v. National City, 18 Cal.3d 270, 133 Cal. Rptr. 859, 555 P.2d 1099, 1103 (1976). *Beach-Courchesne v. City of Diamond Bar, 80 Cal. App.4th 388, 95 Cal. Rptr.2d 265, 270-71 (2000). "Id. at 271. "1d. Sweetwater Valley Civic Ass'n, 133 Cal. Rptr. 859, 555 P.2d at 1103. In re Bunker Hill Urban Renewal Project 1B, 61 Cal. 2d 21, 37 Cal. Rptr. 74, 389 P.2d 538 (1964). *'State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (internal quotation marks and citation omitted). 2la In addition, judicial review of a redevelopment plan must be conducted within the timelines required by statute. NRS 279.609 provides that any challenge to the validity of a redevelopment plan must be raised within ninety days after the “adoption of the ordinance adopting . . . the plan.” NRS 279.589(1) reinforces the finality of NRS 279.609, stating, “The decision of the legislative body concerning a redevelopment area is final and conclusive, and it is thereafter conclusively presumed that the redevelopment area is a blighted area and that all prior proceedings have been properly and regularly taken.” This language is taken from similar California redevelopment statutes, and we may therefore look to California’s interpretations for guidance.’ The California Supreme Court, interpreting a statute that provides for a sixty-day period to - contest a redevelopment plan, has stated that judicial review of a finding of blight (and therefore public use) must be commenced within the statutory period.*’ Once the sixty-day period expires, no new action to challenge the findings may be filed, and a conclusive presumption of blight applies.” The Plan in this case was not challenged within the ninety-day period provided by Nevada statutes; therefore, the district court erred in considering whether substantial evidence supported the determination that the downtown area suffered from physical, social or economic blight. Moreover, even if such a challenge had been timely made, the record reflects substantial evidence in support of the Agency’s determination of blight. Crockett, 117 Nev. at 824, 34 P.3d at 559. Sweetwater Valley Civic Ass'n, 133 Cal. Rptr. 859, 555 P.2d at 1102-03. 47d. at 1103. ee 22a Specifically, evidence was presented to the Agency indicating that the downtown.area, including the area in the immediate vicinity of the Pappases’ property, suffered from higher crime rates than the rest of the City of Las Vegas. Vacant lots, burnt out buildings, and vacant buildings were present on many of the downtown blocks. Visitor volume had been consistently decreasing. Businesses were relocating outside of the downtown area. Most of the buildings in the area were over thirty years old and renovations would require substantial upgrades to comply with existing building codes. While the surveys and investigation may not have been as intensive as in some of the reported cases, they certainly provide substantial evidence of blight. Thus, the district court erred in finding the area was not blighted. The Pappases further contend that even if the area in general can be considered blighted, their particular property was not blighted; therefore, it could not be subject to eminent domain. The United States Supreme Court rejected this type of argument in the seminal case of Berman v. Parker. In Berman, the High Court stated, “Property may of course be taken for this redevelopment which, standing by itself, is innocuous and unoffending.”*° The Court further concluded, “If owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not [blighted] . . . integrated plans for redevelopment would suffer greatly.””’ Although the area in Berman involved slums and an urban renewal statute, rather than a community redevelopment statute, °348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954). Id at 35,75 S. Ct. 98. 57 ld. 23a its rationale still applies. The specific building at issue in Berman was not itself blighted.** The building was to be taken from a private owner and managed by a private agency.’ The Court concluded, however, that redevelopment encompasses an entire area, not just individually blighted sections.” The Court observed that the “piecemeal approach, the removal of individual structures that were offensive, would be only a palliative.”’' Through redevelopment “it was hoped that the cycle of decay of the area could be controlled.’*” Consistent with Berman, the fact that the Pappases’ property itself was not blighted does not prohibit its taking through eminent domain proceedings. We note, however, that while a property owner may not challenge a redevelopment plan’s finding of blight beyond the ninety-day statutory deadlines, the issue of blight may still be raised as it relates to the specific project involved in a condemnation proceeding. A property owner may raise, as an affirmative defense to the taking, that blight originally identified in the plan or project no longer exists® or that the particular project is the product of fraud or collusion between the governmental agency and the private entities who will 81d. at 31,75 S. Ct. 98. 1d. 1d. at 34,75 S. Ct. 98. 6lig 7d. at 35,75 S. Ct. 98. **See 99 Cents Only Stores, 237 F. Supp. 2dat 1130-31; Aposporos v. Urban Redevelopment Com’n, 259 Conn. 563, 790 A.2d 1167, 1175-77 (2002). ita a 24a develop the project™ or the avowed public purpose is merely a pretext” or used in bad faith.° The record reflects no basis for any conclusion that economic, social or physical blight was eradicated between the date the Plan was adopted in 1988 and the date the Fremont Street Experience project was approved in 1993. To the contrary, tourism and visitor volume continued to decline in downtown Las Vegas during those years. More businesses had left the area or closed down. Crime rates, particularly drug- and prostitution-related crimes, continued to be a problem. Inadequate parking had increased. Thus, the Pappases failed to establish that downtown Las Vegas no longer suffered from physical, social, or economic blight at the time of the eminent domain proceedings. The same conclusion applies to any allegation of fraud, collusion, bad faith or pretext. The record contains no evidence that the Pappases’ property was being acquired for some purpose other than a public parking facility and community redevelopment of a blighted downtown area. Because the record does not support the district court’s finding of bad faith, we conclude the district court erred in basing its dismissal on this theory and relying on bad faith or pretext cases. “See 99 Cents Only Stores, 237 F. Supp. 2d at 1130-31; Aposporos, 790 A.2d at 1175-77; see also Southwestern Ill. Development Auth., 238 Ill. Dec. 99, 710 N.E.2d at 896. Earth Management, Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455, 459-61 (1981) (condemnation was pretext to stop construction of hazardous waste disposal plant); Armendariz, 75 F.3d at 1320-21. Pheasant Ridge Assoc. v. Burlington Town, 399 Mass. 771, 506 N.E.2d 1152 (1987) (eminent domain proceedings designed to block construction of low and moderate income housing); Denver West Metro. Dist. v. Geudner, 786 P.2d 434, 436 (Colo. Ct. App.1989}. 25a Necessity In an eminent domain proceeding, necessity is usually raised in the context of challenging whether a project furthers a public purpose and therefore constitutes a public use. It involves whether the property to be taken is necessary to accomplish the public purpose®’ and it encompasses the selection of the location of the condemned land.** However, the standard for challenging a taking for lack of necessity is even greater than that for challenging its public purpose. Courts may not question the wisdom of how to accomplish the public purpose absent a showing of fraud or bad faith.” It is up to the legislative body (in this case, the Agency) to determine how to accomplish the public purpose. Thus, the courts may not substitute their own judgment or dismiss an eminent domain action simply because the legislative branch has other methods at its disposal to accomplish the public purpose.”° The district court found that the Agency acted in bad faith because it could have entered into long-term ground leases with all of the owners of property on the block needed to construct the parking garage rather than acquire the property through condemnation. However, the record contains no evidence to support such a finding. The record reflects that the Agency rejected this approach because it would severely affect the financing for the garage. There is no evidence to suggest any °’Denver West Metro. Dist., 786 P.2d at 436. Thornton Development Authority, 640 F. Supp. at 1076. Port of Umatilla v. Richmond, 212 Or. 596,321 P.2d 338, 350-51 (1958); Denver West Metro. Dist., 786 P.2d at 436; Thornton Development Authority, 640 F. Supp. at 1076. Port of Umatilla, 321 P.2d at 350-51; Denver West Metro. Dist., 786 P.2d at 436; Thornton Development Authority, 640 F. Supp. at 1076. 26a other reason for the decision. The Agency’s condemnation decision does not constitute bad faith, and the district court erred by substituting its judgment for that of the Agency as to the appropriate method for acquiring the property. Pappases’ counterclaims The Pappases’ counterclaims involved several concepts. They claimed that the Agency’s inclusion of their property in the Fremont Street Experience project constituted inverse condemnation, that the Agency violated their due process rights during the initial motion for occupancy, and that their property was taken without just compensation. The record indicates no basis for these claims, and the district court correctly granted summary judgment on them. Issues of inverse condemnation and just compensation were subsumed within the original condemnation complaint. The Agency correctly followed the procedures for gaining immediate occupancy, and any alleged confusion generated by the pleadings was addressed in the Pappases’ motion for reconsideration. Since they were given notice and an opportunity to be heard, due process was satisfied. Thus, the district court did not err in dismissing these counterclaims. The Pappases also asserted a counterclaim seeking declaratory relief or damages for the Agency’s alleged failure to permit them to participate in the project through a long-term ground | lease. They base this assertion upon NRS 279.566(1).’! ™NRS 279.566(1) states: Every redevelopment plan must provide for the participation and assistance in the redevelopment of property in the redevelopment area by the owners of all or part of that property if the owners agree to participate Es 27a Pursuant to the statute, the Agency has enacted rules establishing guidelines for owner participation. The rules provide that the owners and tenants of real property in the redevelopment area are eligible to participate in the redevelopment of property within the area subject to certain factors, such as changes in zoning or land use regulations, street realignments, the ability of participants to finance acquisition, development or rehabilitation of their project, reduction in total number of individual parcels in the area, and construction of public facilities.” The rules also provide that the owners have a reasonable opportunity to retain their properties, acquire adjacent properties, sell and relocate, rehabilitate or participate in new development.” The Plan mirrors the rules by indicating that participation opportunities are necessarily subject to and limited by the same factors cited in the rules.” The plain language of the statute, rules and Plan does not give the Pappases an absolute right to participate in a particular project. It does permit landowners to propose a development project involving their property or to combine with other landowners on a project. It also mandates that such proposals be evaluated fairly. It does not, however, require the Agency to approve any proposal. California courts, when interpreting similar statutes and rules, have come to the same conclusion. The California Supreme Court has determined that there is no absolute right of owner participation in the redevelopment of in conformity with the redevelopment plan adopted by the legislative body for the area. "City of Las Vegas Downtown Redevelopment Agency, Rules Governing Participation § 300. 1d. § 400. “Redevelopment Plan for the Downtown Las Vegas Redevelopment Area § 410.2 (Jan. 22, 1986). 28a 5 any individual parcel in a redevelopment area.’” Whether to allow owner participation in a given project, and under what circumstances, are matters left to the discretion of the agency. ”° In this case, from the time their property was included in the redevelopment area until the approval of the Fremont Street Experience consistency project, the Pappases did not seek to participate in any redevelopment project utilizing their property. Once the property was identified as necessary for the parking garage, the Pappases did propose a long-term ground lease as an alternative to acquiring their property. Although initially inclined to consider this idea, the Agency rejected the long-term lease proposal when it became apparent that long-term leases would affect financing of the garage construction. No evidence was presented in opposition to the Agency’s motion for summary judgment, indicating that the Agency’s decision to forgo ground leases for the garage was the product of fraud or was not supported by substantial evidence. To the contrary, the only evidence presented on the issue demonstrated the need to have single ownership of the land to obtain favorable financing. The district court correctly concluded that no genuine issue of material fact existed as to this claim because no evidence was presented to indicate the Agency acted in bad faith when it rejected the ground-lease proposal. Finally, the Pappases asserted causes of action relating to In Re Bunker Hill, 37 Cal. Rptr. 74, 389 P.2d at 563. Sanguinetti v. City Council of City of Stockton, 231 Cal. App.2d 813, 42 Cal. Rptr. 268, 275 (1965); see also Fellom v. Redevelopment Agency, 157 Cal. App.2d 243, 320 P.2d 884, 888-89 (1958) (property owner has no right to participate where agency condemns property for redevelopment project). 29a alleged rent losses incurred by them prior to the condemnation proceedings. The Pappases claimed that they lost rent from the time the Agency announced that the Pappases’ property would be part of the Fremont Street Experience and that City or Agency employees interfered with the relationship between the Pappases and their tenants. While much of the evidence presented by the Pappases in opposition to the Agency’s motion for summary judgment consisted of inadmissible hearsay (what tenants allegedly told Carol Pappas), sufficient admissible evidence was submitted on this claim to raise a genuine issue regarding material questions of fact to survive a motion for summary judgment. Thus, we conclude the district court erred in dismissing these counterclaims. CONCLUSION Substantial evidence supports the Agency’s findings that the construction of the Fremont Street Experience, including the parking garage, furthers the public purpose of eliminating blight in downtown Las Vegas. Therefore, the Agency’s use of eminent domain proceedings to acquire the Pappases’ property for that purpose does not violate the Nevada or Federal Constitutions. The district court erred in dismissing the eminent domain action. With the exception of the claims involving pre-condemnation interference with tenants or rental Opportunities, the district court did not err in dismissing the Pappases’ counterclaims. Accordingly, we reverse the judgment of the district court dismissing the complaint in eminent domain and that portion of the district court’s subsequent order pertaining to the lost rent claims and remand the matter to the district court for further proceedings in accordance with this opinion. The remaining portion of the district court’s order dismissing the counterclaims is affirmed. 30a We concur: AGOSTI, C.J., and SHEARING and ROSE; JJ. LEAVITT, J., dissenting: The Agency’s taking of the Pappases’ property by eminent domain violates both the United States Constitution and the Constitution of the State of Nevada. The United States Constitution states that no private property shall “be taken for public use, without just compensation.” The Constitution of the State of Nevada similarly provides that ‘[p]rivate property shall not be taken for public use without just compensation having been first made.” The appropriation of a private citizen’s property by eminent domain proceedings must be for a “public use” within the meaning of those words in the Constitution. The government’s taking of property and giving it to another for a private use is unconstitutional and void. The United States Supreme Court, in Berman v. Parker, upheld _the transfer of property taken by eminent domain from one private party to another private party; however, the taking in that case involved a public use.’ The Court permitted the transfer of privately owned property to other private parties because the redevelopment area involved slums in Washington, D.C., and the conditions in the area were injurious to the public health, safety, morals and welfare.* This court, relying on 'U.S. Const. amend. V. "Nev. Const. art. 1, § 8, cl. 6. 5348 U.S. 26, 32-36, 75S. Ct. 98, 99 L. Ed. 27 (1954) (transfer of property permissible to eradicate “slums” or “blight”). ‘Yd. at 32-33, 75 S.Ct. 98. 3la Berman, previously upheld a redevelopment plan that was attempting to eradicate blight.° Under Nevada law, a redevelopment area must include a “blighted area, the redevelopment of which is necessary to effectuate the public purposes.”® The Pappases’ property was not a slum. The City’s survey gave no indication that the property was blighted in any way. There certainly were no conditions injurious to the public health, safety, morals and welfare. The property was adjacent to a savings and loan building and across the street from a bank. The redevelopment Statute requires “[a]ll noncontiguous areas of a redevelopment area [to be] blighted or necessary for effective redevelopment” before adopting a redevelopment plan.’ The Agency failed to demonstrate that the taking of the Pappases’ property was necessary for effective redevelopment; it demonstrated only that it was desirable. The California Supreme Court has conciuded that “[a] finding of blight requires (1) that the area suffer ‘either soci.’ or economic liabilities, or both, requiring redevelopment i: ‘xe interest of the health, safety, and general welfare’ and (2) the existence of one of the characteristics of blight." In Sweetwater Valley Civic Ass’n v. National City, a redevelopment agency sought to take a golf course it considered blighted so that a private party could construct a *Urban Renewal Agcy. v. lacometti, 79 Nev. 113, 121-22,379 P.2d 466, 467 (1963). °NRS 279.586(1)(a). ’NRS 279.586(1)(f). ‘Sweetwater Valley Civic Ass'n v. National City, 18 Cal. 3d 270, 133 Cal. Rptr. 859, 555 P.2d 1099, 1103 (1976) (quoting California statute governing redevelopment of blighted areas). 32a ‘shopping center.’ The court concluded the agency lacked evidence of social blight and that the golf course was economically profitable; therefore, it was neither an economic nor social liability.'° Here, there was no evidence of blight in or around the Pappases’ property; thus, the goal of eliminating blight, which in some cases may be a legitimate public use, is not applicable in this case. The Supreme Judicial Court of Massachusetts considered limitations on the acquisition of private lands and the definition of public use in a 1955 decision involving facts similar to these.'' There, the Massachusetts Legislature proposed an act that would authorize the use of public funds to acquire private lands, to be followed by redevelopment of some portions for public use and the sale of the remainder to the highest bidder for private use.'* The court held that the expectation that adjacent areas and the city as a whole would benefit from the taking did not constitute a public use.'? The court further noted, [I]n dealing with this difficult subject one proposition is thoroughly established practically everywhere, and so far as we are aware without substantial dissent, and that is that public money cannot be used for the primary purpose of acquiring a either by eminent domain or by purchase private lands to be turned over or sold to private persons for private use.'* "Id. at 1100. rd. at 1104. ''In re Opinion of the Justices, 332 Mass. 769, 126 N.E.2d 795 (1955). 271d. at 796-97. 37d. at 803. 47d. at 802. SS 33a Federal courts have agreed, particularly when the claimed public use is pretextual: “If officials could take private property, even with adequate compensation, simply by deciding behind closed doors that some other use of the property would be a ‘public use,’ and if those officials could later justify their decisions in court merely by positing ‘a conceivable public purpose’ to which the taking is rationally related, the ‘public use’ provision of the Takings Clause would lose all power to restrain government takings.”"® The taking of the Pappases’ property by the City of Las Vegas Downtown Redevelopment Agency under the pretextual guise of a “public use” is unconstitutional and void, since the plan was to give the property to the Fremont Street Experience, a private limited liability company, which would receive all revenues from the parking garage and retail space leases. I would affirm the district court’s dismissal of the case. MAUPIN, J., dissenting. I would affirm the result reached by the district court based upon my dissent in Las Vegas Downtown Redevelopment v. Crockett.’ '°99 Cents Only Stores v. Lancaster Redevelopment, 237 F. Supp. 2d 1123, 1129 (C.D. Cal. 2001) (quoting Armendariz v. Penman, 75 F.3d 1311, 1321 (9th Cir.1996)). '117 Nev. 816, 34 P.3d 553 (2001). De 34a | Amendment of the Plan The Fremont Street Experience, the redevelopment project in this matter, is subject to the same redevelopment plan and is within the same redevelopment area with which we were concerned in Crockett. Because I conclude that the signal feature of the project, the vacation of the oldest and one of the most traveled public boulevards in the city, effected a material change to or deviation from the governing redevelopment plan, I also conclude that the Agency improperly failed to seek formal amendment of the Plan before taking properties via eminent domain. The Crockett majority held that the vacation of four streets and the relocation of a public park did not constitute a material deviation from or change to the redevelopment plan involved in this case. A fair reading of the majority opinion in Crockett supports the implied ruling by the majority in this case that resort to the formal amendment process provided for under NRS 279.608 was legally unnecessary. This notwithstanding, I remain of the view that Crockett was wrongly decided on its facts and should be revisited. The redevelopment area in this case encompasses virtually the entirety of old downtown Las Vegas, bounded on the west by Martin Luther King Boulevard, on the east by Bruce Avenue, on the north by Washington Avenue, and on the south by Sahara Avenue. As noted by the majority in Crockett, the plan was approved to “eliminate and prevent the spread of blight and deterioration,” contemplating acquisition of real property by purchase and by eminent domain, “transfer of acquired real property to public or private entities,” and the “demolition of buildings . . . construction of parks, development and construction of hotel and ‘tourism/recreational’ facilities, and gs RSA NN: SRY GN 35a the widening, closure and vacation of streets and alleys” in the redevelopment area.’ Although I agreed with the Crockett majority that redevelopment plan amendments are only necessitated when a proposed project entails a material deviation from the redevelopment plan, and although I agreed that formal amendment of a plan is not per se necessary to commence any project, I concluded that the vacation of parks and streets without formal plan amendment ran afoul of NRS 279.572 and NRS 279.608: The ability to amend under NRS 279.608 is quite specific in terms of the procedure to be followed. However, there are no Stated criteria in this statute governing when the amendment process is required, other than the statement in subsection (3) that “substantial” changes must be submitted in a written recommendation for consideration by a city or county government to amend the plan. Thus, I believe NRS 279.608 and NRS 279.572 must be read together to determine legislative intent. As noted, NRS 279.572 requires that redevelopment plans show open spaces, layout of streets, size, height, number and proposed use of buildings, number of dwelling units, property to be devoted to public purposes, other covenants, conditions, and restrictions, etc. While changes in the use of individual dwelling units and building sizes may involve mere details not requiring resort to the formal amendment process, vacation of streets and relocations of public parks depicted on the approved map are entirely different matters. Certainly, vacation of streets and relocation of parks are not “details”... 2 Thus, while the plan in Crockett and in this case empowers the "Id. at 819, 34 P.3d at 555. "Id. at 834, 34 P.3d at 565 (Maupin, C.J., dissenting). 36a Agency to vacate public streets, as well as take other actions without resort to formal amendment of the plan, I am of the view that such powers are beyond those sanctioned in the statutory framework governing redevelopment unless the plan itself has been approved with the material changes sought. In Crockett, | also commented upon the Agency’s need to promote flexibility and quick response to changing conditions. In doing so, I noted that the vacation of streets was not a measure that interfered with the need for expeditious action in response to changing economic conditions. I would also note that the assemblage of multiple parcels, as was done in this case to build the garage that now occupies the properties owned by the Pappas family, was likewise not done as a quick response to changing conditions. No one in this controversy has seriously suggested that the economic blight the City and the Agency sought to alleviate was anything other than a long-term developmental problem. My vote to affirm is not based upon agreement with the district court’s myriad justifications for dismissing the eminent domain action below, including its ruling that all redevelopment projects implicate the formal amendment process under NRS 279.608. Rather, it is based upon my view that, while there is - no absolute requirement that redevelopment plans be formally amended to accommodate any redevelopment project, the nature of the project in question here mandated that the Agency submit to an amendment process prior to utilizing the power of condemnation to consolidate and assemble the affected parcels. In this, I note that the district court did not have the benefit of the Crockett decision when it determined that formal amendment of the Plan was a condition precedent to the exercise of eminent domain in this instance. However, as discussed below, because plans such as the 1986 Plan at issue here must of necessity be drafted in general terms, the 37a requirement to amend should be fairly broad.* Blight issues and the amendment process Appellants claim that any issue of blight was conclusively resolved at the termination of the ninety-day protest period under NRS 279.609 following the adoption of the Plan in 1986, during which respondents took no action concerning the findings of blight within the redevelopment area. Respondents claim that evidence in support of the original determination of blight in the redevelopment area was flawed and insufficient. This, in fact, was one of the primary underpinnings of the district court’s decision. To me, neither side has completely analyzed the procedural framework within which blight issues may be raised. Appellants correctly argue that any questions regarding the problem of potential or existing generalized blight in the redevelopment area was conclusively established after expiration of the protest period following adoption of the original Plan. In my view, the district court relied too heavily upon the documentation it ordered produced concerning blight studies prior to the adoption of the Plan and the delineation of the redevelopment area in 1986. As noted by the Agency, the development of elaborate or comprehensive written documentation of blight was even unnecessary to a valid determination by the City that the redevelopment area as a whole contained widespread physical, social and economic blight. This was a decision that could be properly drawn from individualized knowledge of members of the Council who were ‘Projects such as the Fremont Street Experience are extensive enough to require material changes to a redevelopment plan beyond simple vacation of streets, thus implicating the formal amendment process. 38a in a position to judge the merits of the blight issue. Because no one lodged objection to the blight findings within the ninety-day period, any judicial tribunal must give deference to those findings. This deference, however, does not end the matter. Here, respondents could have reasonably concluded at the time that such a protest was unnecessary because the Plan did not establish that the Plan area suffered from blight in its _ entirety and that they could protest at a later time whether a particular project would meet the objectives of the Plan, i.e., the alleviation of blight in their particular neighborhood and its environs. Going further, it is quite understandable that no individual landowner lodged formal objections either administratively or within the judicial system because of the daunting and probably prohibitively expensive task of challenging the validity of the entire Plan. Also, because ample justification existed to support the establishment of the downtown redevelopment area, and because the mayor, city manager, members of the Council and at least one attorney representing the City ma [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0912%3A1. Public record. Not legal advice.