Opposition Brief — Bugryn v. City of Bristol

(¢ Su So.

( &) preme Court, U

FILED

No. 01-407 OCT 9 2001

In The CLERK

Supreme Court of the United States

+

FRANK W. BUGRYN, JR., MARY DUDKO,

MICHAEL DUDKO, AND JOHN BUGRYN,

Petitioners,

CITY OF BRISTOL, PLANNING COMMISSION

OF THE CITY OF BRISTOL, AND THE

BRISTOL DEVELOPMENT AUTHORITY,

Respondents.

*

On Petition For A Writ Of Certiorari

To The Appellate Court Of The

State Of Connecticut

e

BRIEF FOR THE RESPONDENTS IN OPPOSITION

°

BRIAN T. HENEBRY

Counsel of Record

Carmopy & Torrance LLP

50 Leavenworth Street

P.O. Box 1110

Waterbury, CT 06721-1110

(203) 573-1200

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

\

QUESTIONS PRESENTED

1. Ifa municipality exercises its condemnation authority

in such a manner that a specific and identifiable interest

may benefit from the condemnation, do the Fifth and

Fourteenth Amendments to the United States Constitu-

tion require the application of heightened scrutiny in

determining whether the condemnation is being carried

out for a public use?

2. If the answer to the first question is “yes,” is height-

ened scrutiny warranted in this case where the trial court

considered all the evidence regarding the circumstances

surrounding the condemnation and concluded that the

purpose of the taking was to develop a multi-lot indus-

trial park that would proceed with or without the

involvement of a particular private entity that never com-

mitted to purchasing one of the lots in the industrial

park?

ii

LIST OF PARTIES AND AFFILIATES

The names of all parties to the proceedings before the

Connecticut Appellate Court appear in the caption of the

case. Bristol is a city in the state of Connecticut. There are

no corporate petitioners.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..............0..0-e0000.

LIST OF PARTIES AND AFFILIATES............... i

TABLE OF AUTHORITIES ...............0.e0e0e00- iv

ce ee Cee 1

SES TEE EDT 1

STATEMENT OF THE CASE...........-...0-00000. 1

REASONS FOR DENYING THE WRIT............. 5

1. The Petitioners’ Claim Is Contrary To Decisions

Of This Court And Is Unsupported By Any Fed-

SO ae EON ETRE ESCs SEEN 6

2. Petitioners’ “Heightened Scrutiny” Claim Is

Grounded In State Constitutional Law ......... 12

3. The Factual Predicate For The Petitioners’ Claim

Was Rejected By The Trial Court............... 18

rr: i a ie are re 22

NE an dade Was ha oso OER Kaeo koe s 25

iv

TABLE OF AUTHORITIES

Page

Cases

Acco Unlimited Corp. v. City of Johnston, 611 N.W.2d

ee SS NU eb oo oc b aac ok oped dackh os kde ex 15

AMSAT Cable Ltd. v. Cablevision Ltd. Partnership, 6

Pe er ClO CO BI i nas viva es naniee 9, 10, 13, 15

Avalonbay Communities, Inc. v. Orange, 256 Conn.

Pe ics, Ge cn TEE 5a 4 as ho AOR EASA tO ees 17

Berman v. Parker, 348 U.S. 26

Lo | Sr ers angen oem 7, i, 42, 16,23

Bugryn v. City of Bristol, 63 Conn. App. 98, 774

A.2d 1042, cert. denied, 256-Conn. 927, 776 A.2d

Se Ce iin. c Pasa xk Neh ee Ah a SR oes 5

Calderon v. Moore, 518 U.S. 149 (1996)............... 22

Casino Reinvestment Development Authority v.

Banin, 320 N.J. Super. 342 (N.J. Law Div. 1998) .... 16

Church of Scientology of California v. United States,

GE DP COMMON 8 5 ean heiens chawe base be kueseuee 22

Cincinnati v. Vester, 281 U.S. 439 (1930)............05. 7

City of Atlantic City v. Cynwyd Investments, 148 N.J.

as 2. Se Ae 15, 16

City of Lansing v. Edward Rose Realty, 442 Mich.

G26, SUZ N.W2G G38 (1998S) osc ckseicadeces 13, 14

City of Lansing v. Edward ee ealty, Inc., 192

Mich.App. 551, 481 N.W.2d 795 (Mich. A Pp-),

aff'd, 442 Mich. 626, 502 N.W.2d 638 (Mich.

bs PEL OEP ECOSPORT SET Ther oe net ae rere e 9

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

| eer es Ltt eet e ete eee eee e eee n eens passim

Vv

TABLE OF AUTHORITIES - Continued

Page

Hawley v. South Bend, Dept. of Redevelopment, 270

Ind. 109, 383 N.E.2d 333 (1978) .............0.3 16, 17

International Paper Co. v. United States, 282 U.S. 399

RUPEE nie nn caeelcephesa anes cena 12

Joslin Mfg. Co. v. Providence, 262 U.S. 668 (1923)..... 11

Minneapolis Comm. Dev. Agency v. Opus Northwest,

LLC, 582 N.W.2d 596 (Minn. Ct. App.), review

denied, 1998 Minn. LEXIS 779 (1998) .............. 15

National Railroad Passenger Corp. v. Boston & Maine

Corp., S00 U.S. 407 CGI2) oo nas cis va venincns 6, 8, 10

Poletown Neighborhood Council v. City of Detroit, 410

Mich. 616, 304 N.W.2d 455 (1981)............. passim

Richardson v. City and County of Honolulu, 124 F.3d

1150 (9th Cir. 1997), cert. denied, 525 U.S. 871

CRN OO s suk 0s ound cred Roce Mee Ewe ea ened eeeee ae

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

tS | ry pees a hia, Mitre yh me rere mm 7

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ...... 6

Small Landowners v. City and County of Honolulu,

832 FSupp. 1404 (D. Hawaii 1993), aff'd, Rich-

ardson v. City and County of Honolulu, 124 F.3d

1150 (9th Cir. 1997), cert. denied, 525 U.S. 871

ES: OEE Peer Perey PorT yen cereale eay Mere mee 9

Rr See re a ee ee 14

Township of West Orange v. 769 Associates, LLC, 341

N.J.Super. 580, 775 A.2d 657 (N.J. App. Div.

pS Perec ee eye eee Pee reir cee armen 16

vi

TABLE OF AUTHORITIES - Continued

Page

Union Lime Co. v. Chicago & N.R. Co., 233 U.S. 211

(2DEA) ooo acdccccccscuvcnsesd casbeckdsstbhasuessawas 7

Vance v. Bradley, 440 U.S. 93 (1979)........... 2. ee eeee 9

Wilmington Parking Authority v. Land With Improve-

ments, 521 A.2d 227 (Del. 1987)........ 13, 14, 17, 21

STATUTES

2B USC. § TABU) vein oc civne Svcd canvakcebade cia 1

BB USS. 8 OER oiccaedids ccccabencebsetebsanacestsanes 9

Comm. Gam, Genk, © SG. so ius ceedu vussardsddssentes 3

Comm. Gis. Dent: B Rass oc ieessis dis Secevesi ties 2

Conn. Gom. Bint. © GiGi «seccscpaess esau Pre er

OTHER AUTHORITIES

2A Nichols on Eminent Domain (3rd Ed.),

OS TAMMOMOE 6c cCivek cscvebucvaguvaleeS teadeee rhamen 11

Annotation, “Eminent Domain —- Public Use,” 81

LSS SS4 CHO S 6 5 i Wie obSc cBS Vouk ee Gs es 7

OPINIONS BELOW

The order of the Connecticut Supreme Court denying

the petitioners’ petition for certification was issued on

June 7, 2001, and is reported at 256 Conn. 927, 776 A.2d

1143 (2001). The opinion of the Connecticut Appellate

Court is reported at 63 Conn. App. 98, 774 A.2d 1042

(2001). The opinion of the Connecticut Superior Court

(Kremski, S.T.R.) dated January 31, 2000 is unreported.

All three of these decisions are reprinted in the peti-

tioners’ appendix to the Petition for Writ of Certiorari.

+

JURISDICTION

The Connecticut Supreme Court denied the peti-

tioners’ petition for certification on June 7, 2001. The

Connecticut Appellate Court entered judgment on April

24, 2001. The petitioners invoke the jurisdiction of this

Court pursuant to 28 U.S.C. § 1257(a). As outlined below

in section four of the “Reasons For Denying The Writ,”

the respondents contend that this case is moot.

¢

STATEMENT OF THE CASE

On May 25, 1999, the City of Bristol deposited $1.29

million in the Superior Court of Connecticut in order to

commence condemnation proceedings with regard to two

parcels of land owned by respondents that were being

taken in connection with the City’s plans to develop an

industrial park. The Bristol Development Authority and

the Bristol City Council had previously voted unani-

mously to approve the project plan for the Southeast

Bristol Mini-Industrial Park, which will include twelve-

fifteen industrial lots.1 Prior to obtaining these approvals,

the Project Plan had been the subject of multiple public

hearings and had been reviewed and approved by the

Bristol Planning Commission, the Central Connecticut

Regional Planning Agency, and numerous state agencies.

As required by C.G.S. § 32-224(b)(12), the City Coun-

“Scit-and the Bristol Development Authority specifically

found as part of the approval process that the land and

- buildings within the boundaries of the project area will

be used “principally for manufacturing or other economic

base business purposes or business support services” and

that the project will contribute to the economic welfare of

the City of Bristol and the State of Connecticut. Accord-

ing to the Project Plan prepared by an independent con-

sultant, the net present value of the excess of tax

revenues over the estimated cost of development is

approximately $8.9 million. The Project Plan also states

that after 10 years the industrial park will create between

396 and 594 jobs for the City.

The City of Bristol ranks in the top 25% of Connecti-

cut’s poorest towns. It is considered an economically

disadvantaged community and a “targeted investment

community” under Conn. Gen. Stat. § 32-222(u). Like

many of the old manufacturing towns in the Northeast,

1 Under the project plan, the two parcels owned by

petitioners will be subdivided into four industrial lots.

manufacturing employment in Bristol has declined stead-

ily over the years. The number of manufacturing jobs in

the city declined in part as a result of several plant

shutdowns that occurred beginning in the 1970s. The

unemployment rates in Bristol in the 1990s were consis-

tently greater than the state and regional averages.

The petitioners filed an action to enjoin the takings in

the Connecticut Superior Court. The petitioners’ principal

claim was that the taking was designed to benefit a

private entity (Yarde Metals). In the proceedings below,

the petitioners never challenged the constitutionality of

Conn. Gen. Stat. §§ 32-220 et seq., the Connecticut Eco-

nomic Development and Manufacturing Assistance Act of

1990 (“the Act”), under which these condemnation

actions were brought. Moreover, petitioners did not dis-

pute that: (1) one of the purposes of the Act was to

promote the development of industrial parks; (2) an

industrial park developed under the Act is a public use;

(3) the respondents complied with all necessary pro-

cedures required for exercising the power of eminent

domain under the Act; and (4) the Bristol City Council

and Bristol Development Authority made the necessary

factual findings required under Conn. Gen. Stat.

§ 32-224(b)(12), including a finding that the industrial

park will contribute to the economic welfare of the city

and the state.

_ After hearing four days of testimony from peti-

tioners, the mayor of the City of Bristol, the director of

the Bristol Development Authority, and the president of

Yarde Metals, the trial court denied the injunctive relief

requested. This testimony focused on the origins of the

project, the reasons why the City sought to develop the

industrial park, whether the City’s primary purpose was

to provide a benefit to Yarde Metals as alleged by peti-

tioners, and whether the project would proceed even if

Yarde Metals elected to relocate elsewhere.? The trial

court rejected petitioners’ claim that the purpose of the

taking was to benefit Yarde Metals, noting that Yarde

Metals’ involvement in the project remained in doubt and

finding that the City intended to proceed with the indus-

trial park with or without Yarde Metals.

The Connecticut Appellate Court affirmed the trial

court’s ruling in a unanimous decision, and the Connecti-

cut Supreme Court subsequently denied certification of

the same issue the petitioners are now asking this Court

2 The mayor of Bristol and the director of the Bristol

Development Authority testified that they always intended to

proceed with the project whether or not Yarde Metals elected to

relocate to the industrial park. Craig Yarde, the president of

Yarde Metals, testified that, although he was interested in

relocating to the industrial park, he had never committed to the

City -— contractually or otherwise — to purchase one of the lots

because: (1) he had been looking to relocate since 1996 in order

to eliminate the costs of operating out of multiple facilities, and

the delays and uncertainties occasioned by this litigation had

caused him to look for sites elsewhere; (2) until the litigation

was ultimately resolved and the City’s ownership was beyond

dispute, Mr. Yarde could not know the configuration of the land

the City could sell and whether the land that was ultimately

available would meet his company’s expansion needs at that

time. In addition to Yarde Metals, the City received a number of

inquiries from other companies interested in relocating to this

industrial park. The director of the Bristol Development

Authority testified regarding his efforts to market the industrial

park to companies located throughout the Northeast and Mid-

Atlantic regions.

to review.? Bugryn v. City of Bristol, 63 Conn. App. 98, 774

A.2d 1042, cert. denied, 256 Conn. 927, 776 A.2d 1143

(2001). Additional facts relating to the respondents’ claim

that this case is moot are set forth in section four below.

«

REASONS FOR DENYING THE WRIT

Petitioners contend that the Fifth and Fourteenth

Amendments to the United States Constitution require

“heightened scrutiny” in determining whether a condem-

nation is being carried out for a public use if the condem-

nation power is exercised in such a manner that a specific

and identifiable private interest may benefit. This conten-

tion is contrary to numerous decisions of this Court and

would thus require the outright reversal of long-settled

precedent of this Court. In fact, there is not a single

federal court decision that supports petitioners’ claim.

The petitioners seek review based upon the decisions of

the highest courts in two states that appear to disregard

the fact that the “heightened scrutiny” standard sought

by petitioners arose out of state constitutional law in

Michigan. Moreover, the petitioners’ claim is based upon

a factual predicate that the trial court rejected in its fact-

bound decision after fully considering all the evidence

3 The three-member panel of the Appellate Court included

Justice Ellen Peters, former Chief Justice of the Connecticut

Supreme Court. Prior to her service on the Connecticut Supreme

Court, Justice Peters was a professor at Yale Law School from

1956 to 1978. The respondents incorporate by reference the facts

set forth in the decisions of the Appellate Court and the trial

court, which are included in the Appendix to the Petitioners’

Brief. ~

presented by petitioners regarding the public use issue.

The trial court’s inquiry into all the facts and circum-

stances surrounding the condemnation satisfied even the

“heightened scrutiny” that petitioners advance. Finally,

the issue raised by petitioners is moot because their claim

for heightened scrutiny is based upon an alleged benefit

to Yarde Metals, and Yarde Metals purchased an indus-

trial plant in another town while this case was on appeal

and thus will not be relocating to the Southeast Bristol

Mini-Industrial Park. The petition is without merit and

should be denied.

1. The Petitioners’ Claim Is Contrary To Decisions

Of This Court And Is Unsupported By Any Fed-

eral Case Law.

The most striking aspect of petitioners’ brief is the

absence of a single citation to a federal court decision

supporting their claim. The reason for this pregnant

omission is simple: this Court has long held that the role

of courts in reviewing a claim that a particular exercise of

the condemnation power does not serve a public use is a

limited one. See National Railroad Passenger Corp. v. Boston

& Maine Corp., 503 U.S. 407, 422 (1992) (holding that

Court will not strike down a condemnation based upon

the public use requirement so long as the taking is “ratio-

nally related to a conceivable public purpose,” in reject-

ing private railroad’s challenge to condemnation of its

property by Interstate Commerce Commission for benefit

of Amtrak); Ruckelshaus v. Monsanto Co., 467 U.S. 986,

1014 (1984) (“[t]he role of the courts in second-guessing

the legislature’s judgment of what constitutes a public

use is extremely narrow.”); Hawaii Housing Authority v.

Midkiff, 467 U.S. 229, 240-41 (1984) (the scope of the

public use requirement is “coterminous with the scope of

a sovereign’s police powers” and the judiciary should

defer to legislature’s public use determination unless the

use involves an “impossibility” or is “palpably without

reasonable foundation”); Berman v. Parker, 348 U.S. 26, 32

(1954) (“[t]he role of the judiciary in determining whether

that power [of eminent domain] is being exercised for a

public purpose is an extremely narrow one”); see also

Richardson v. City and County of Honolulu, 124 F.3d 1150,

1157-58 (9th Cir. 1997), cert. denied, 525 U.S. 871, 168

(1998) (rejecting claim that city land reform ordinance

violated public use requirement and holding that mini-

mum scrutiny test set forth in Midkiff applied rather than

heightened scrutiny sought by landowners). Thus,

despite the relative frequency with which challenges to

the eminent domain power are based upon claims that no

public use is served, no federal court has ever adopted

the heightened scrutiny test proposed by petitioners. This

speaks volumes about the merits of petitioners’ claim.4

In Hawaii Housing Authority v. Midkiff, wherein this

Court first held that the public use requirement is coter-

minous with the scope of the police power, the Court

4 This Court has also repeatedly held that it regards with

great respect judgments of state courts as to what constitutes a

public use, and such judgments should be upheld unless clearly

without ground. See Cincinnati v. Vester, 281 U.S. 439, 446 (1930);

Rindge Co. v. County of Los Angeles, 262 U.S. 700, 706 (1923);

Union Lime Co. v. Chicago & N.R. Co., 233 U.S. 211 (1914); see

generally Annotation, “Eminent Domain - Public Use,” 81

L.Ed.2d 931, § 3, at 937-39, and cases cited therein.

|

upheld the constitutionality of a land reform statute that

authorized the use of eminent domain for the specific

purpose of transferring the property to another private

entity. 467 U.S. at 239-245. The court held that:

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

reviewing a legislature’s judgment of what con-

stitutes a public use, even where the eminent

domain power is equated with the police power.

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

extremely narrow’ one... . In short, the Court

has made clear that it will not substitute its

judgment for a legislature’s judgment as to what

constitutes a public use, ‘unless the use be pal-

pably without reasonable foundation.’ . .

Fo be sure, the Court’s cases have repeatedly

stated that ‘one person’s property may not be

taken for the benefit of another private person

without a justifying public purpose, even

though compensation be paid.’ . . . But where

the exercise of the eminent domain power is

rationally related to a conceivable public pur-

pose, the Court has never held a compensated

taking to be proscribed by the Public Use

Clause.

Id. at 240-41.5

5 While Berman and Hawaii Housing Authority v. Midkiff

involved challenges to the constitutionality of a statute, the

standard of review set forth in these cases and their progeny is

equally applicable to legal challenges to particular exercises of a _

legislatively-delegated condemnation power by federal or local

agencies. See National Railroad Passenger Corp. v. Boston & Maine

Corp., 503 U.S. at 422-423 (applying Midkiff deferential standard

to a challenge to a condemnation by Interstate Commerce

Commission for benefit of Amtrak pursuant to eminent domain

The only federal court that has specifically addressed

petitioners’ argument soundly rejected it. In AMSAT

Cable Ltd. v. Cablevision Ltd. Partnership, 6 F.3d 867, 875

(2nd Cir. 1993), the Second Circuit stated:

Plaintiffs rely on a case applying a Michigan

Constitutional test requiring a “clear and signifi-

cant” showing that a condemnation statute that

serves private interests is predominantly

directed toward serving public interests. City of

Lansing v. Edward Rose Realty, Inc., 192 Mich.

App. 551, 481 N.W.2d 795 (Mich. App.), aff'd,

442 Mich. 626, 502 N.W.2d 638 (Mich. 1993) (dis--

cussing state and federal standards). However,

the federal standard is otherwise. As stated in

Hawai Housing Authority v. Midkiff, 467 U.S. 229,

241, 104 S.Ct. 2321, 2329, 81 L.Ed.2d 186 (1984),

the exercise of eminent domain power will be

upheld where it is “rationally related to a con-

ceivable public purpose.... ”

power under 45 U.S.C. § 562(d)); Small Landowners v. City and

County of Honolulu, 832 F.Supp. 1404, 1409 (D. Hawaii 1993),

aff'd, Richardson v. City and County of Honolulu, 124 F.3d 1150 (9th

Cir. 1997), cert. denied, 525 U.S. 871 (1998) (judicial deference

given to legislative findings of public use is equally applicable

to findings of municipality required as conditions for exercise of

eminent domain power, citing Vance v. Bradley, 440 U.S. 93,

110-111 (1979)). In the present case, both the Bristol Planning

Commission and the Bristol City Council were required under

Conn. Gen. Stat. § 32-224(b)(12) to find, prior to authorizing the

condemnation, that “the land and buildings within the

boundaries of the project area will be used principally for

manufacturing or other economic base business purposes or

business support services” and that “the project will contribute

to the-economic welfare of the City of Bristol and the State of

Connecticut.”

10

Id. at 875. Respondents have been unable to find any

other federal decisions that discuss the decisions of the

Michigan, Delaware, and New Jersey courts relied upon

by petitioners in support of their claim for “heightened

scrutiny.” The reason for the dearth of federal case law on

this issue is clear: “heightened scrutiny” is contrary to

every decision of this Court addressing the issue.

The petitioners’ claim that federal law is unclear as to

the degree of scrutiny required where there is a direct

benefit to a specific and identifiable private entity (as

opposed to some benefit) is patently incorrect. In

numerous cases addressed by this Court there was clearly

a direct benefit to a private entity as a result of a taking,

but the court applied a deferential standard in reviewing

the public use issue. In National Railroad Passenger Corp.,

Midkiff and Berman, the condemnation resulted in the

transfer of ownership from one private_party to another,

and this Court applied the same test: whether the taking

is rationally related to a conceivable public purpose.

National Railroad Passenger Corp. v. Boston & Maine Corp.,

503 U.S. at 422 (ICC condemned railroad properiy to be

transferred to Amtrak, a private corporation); Hawaii

Housing Authority v. Midkiff, 467 U.S. at 240-43 (land

reform legislation resulted in transfer of condemned

property to private owners in order to address land oli-

gopoly); Berman v. Parker, 348 U.S. at 32-34 (where

redevelopment statute allowed property taken to be

transferred to private redevelopers, Court held that “[w]e

cannot say that public ownership is the sole method of

promoting the public purposes of community redevelop-

ment projects”). In all of these cases, there was a substan-

tial and direct benefit to the private party who ultimately

11

acquired the condemned parcel, and the Court applied

the same deferential standard of review in each case.

The petitioners provide absolutely no explanation or

delineation between condemnations that provide some

benefit, as opposed to those that provide a direct benefit,

to a private entity. This is simply a meaningless distinc-

tion that represents an attempt to create confusion in the

case law where there is none. Heightened scrutiny for

any compensated taking would be directly contrary to the

rulings in Berman, Midkiff, and their progeny.® Under the

petitioners’ approach, any taking that contemplated the

ultimate transfer of the condemned property to a private

entity (whether for purposes of economic development or

any other purpose) would provide a direct benefit to that

entity and would therefore have to be reviewed under

heightened scrutiny. Such an approach would require the

reversal of well-established precedent and result in the

invalidation of scores of state and federal economic

development statutes.

This Court has made it clear that the mere fact that a

particular taking may have some incidental benefit to a

private entity does not invalidate the taking. See Joslin

Mfg. Co. v. Providence, 262 U.S. 668 (1923); 2A Nichols on

Eminent Domain (3rd Ed.), § 7.03[5][a] at p. 7-46.

¢ The petitioners’ claim that different levels of scrutiny can

be applied to “public use” challenges in much the same manner

that different levels of scrutiny are applied to claims under the

Equal Protection Clause. Petitioners’ Brief at 15-16. This

argument ignores the fact that Midkiff established that the public

use requirement of the Taking Clause is coterminous with a

sovereign’s police powers. There is no case law that would

support applying different levels of scrutiny in this context.

The mere fact that property taken outrigh by

eminent domain is transferred in the first

instance to private beneficiaries does not con-

demn that taking as having only a private pur-

pose. The Court long ago rejected any literal

requirement that condemned property be put

into use for the general public. ‘It is not essential

that the entire community, nor even any consid-

erable portion, . . . directly enjoy or participate

in any improvement in order [for it] to consti-

tute a public use.’ . . . ‘[W)hat in its immediate

aspect [is] only a private transaction may .. . be

raised by its class or character to a public affair.’

Hawatt Housing Authority v. Midkiff, 467 U.S. at 243-44

(internal citations omitted). If the purpose of the taking is

primarily to serve a public benefit, then that same public

use continues after the property is transferred to a private

entity. International Paper Co. v. United States, 282 U.S. 399,

408 (1931). The operative issue, therefore, is whether the

purpose of the taking is to serve a public benefit. This

inquiry ts inherently fact specific. As discussed in section

3 below, this factual issue was addressed in detail by the

trial court, which rejected petitioners’ claim that the pri-

mary purpose of the taking at issue was to benefit a

private entity (Yarde Metals). (See Trial Court Decision in

Petitioners’ Appendix at App. 35).

2. Petitioners’ “Heightened Scrutiny” Claim Is

Grounded In State Constitutional Law.

As discussed above, there is absolutely no support in

any federal decisions for the “heightened scrutiny” stan-

dard advanced by petitioners. The petitioners’ argument

is based upon decisions of the Michigan and Delaware

el i 0s

. AF IONE me

a RN TIRE

13

Supreme Courts that purport to apply heightened scru-

tiny to public use claims where a taking results in a

benefit to a specific and identifiable private entity. See

City of Lansing v. Edward Rose Realty, 442 Mich. 626,

638-39, 502 N.W.2d 638 (1993), citing Poletown Neighbor-

hood Council v. City of Detroit, 410 Mich. 616, 634-35, 304

N.W.2d 455 (1981); Wilmington Parking Authority v. Land

With Improvements, 521 A.2d 227, 231 (citing Poletown). A

brief review of these decisions demonstrates, however,

that the origin of the “heightened scrutiny” standard lies

in state constitutional law first enunciated by the Michi-

gan Supreme Court in the Poletown case. The test appears

to have been applied by the Delaware Supreme Court

(and by subsequent decisions of the Michigan Supreme

Court) in cases involving federal constitutional issues

without any discussion or analysis of whether the test is

consistent with federal law. See id.

The “heightened scrutiny” standard relied upon by

petitioners originated in the 1981 decision of the Michi-

gan Supreme Court in Poletown Neighborhood Council v.

City of Detroit, supra.’ Significantly, Poletown did not

involve any federal constitutional issues. Rather, the sole

constitutional issue in that case was whether the taking of

a large tract of land by the Detroit Economic Develop-

ment Council for subsequent conveyance to General

7 The respondents are unaware of a single decision prior to

Poletown discussing or applying heightened scrutiny to a public

use issue. Moreover, respondents were unable to find a single

federal court decision that has cited Poletown, although the

heightened scrutiny standard adopted in Poletown has been

discussed and rejected by the Second Circuit. See AMSAT Cable

Ltd. v. Cablevision, 6 F.3d 867, 875 (2nd Cir. 1993).

14

Motors for an assembly plant constituted a taking for a

private use in violation of Article 10, § 27 of the Michigan

Constitution. 410 Mich. at 628-29. In announcing the

“heightened scrutiny” standard it was applying, the

Court cited no authority - state or federal - in support of

this test. Id. at 634-35. The Poletown court ultimately

affirmed the trial court’s factual determination that the

public interest was the predominant interest being

advanced and therefore held that the taking was valid. Id. |

In subsequent decisions, the Michigan Supreme |

Court has applied the Poletown “heightened scrutiny” test |

in cases involving (unlike Poletown) both state and federal

constitutional claims regarding the public use issue. See

City of Lansing v. Edward Rose Realty, 442 Mich. at 638-39;

Tolksdorf v. Griffith, 464 Mich. 1, 9, 626 N.W.2d 123 (2001).

However, in neither of these cases did the court ever

expressly address the question of whether the Poletown

test is inconsistent with federal law, nor did the court

discuss the state constitutional roots of the test. Similariy,

the Delaware Supreme Court adopted the Poletown

“heightened scrutiny” test without discussing or noting

that Poletown was based on state constitutional law. Wilm-

ington Parking Authority v. Land With Improvements, 521

A.2d at 231. Moreover, in Wilmington Parking Authority

the court never even discussed whether the Poletown test

is inconsistent with federal law. The only court that has

actually addressed Poletown’s roots in state constitutional

law concluded that the “heightened scrutiny” test is

a

Ee a ae ne

15

contrary to federal law.* See AMSAT Cable Ltd. v. Cablevi-

sion Ltd. Partnership, 6 F.3d at 875.

The conflict between the highest appellate courts in

Connecticut, Michigan, and Delaware is therefore not a

significant conflict warranting the review of this Court

because: (1) the Michigan and Delaware decisions are

clearly contrary to federal law; (2) the conflict arose not

from a reasoned analysis of federal law but rather from

the borrowing of a test that has its origins in state consti-

tutional law; (3) the Michigan and Delaware courts never

even considered or evaluated how the Poletown test com-

pares to the standard of review applied by federal courts

following Midkiff.°

® In addition to the decision of the Connecticut Appeliate

Court, at least one other state court has rejected “heightened

scrutiny” in the context of a public use challenge to a

condemnation, but it did not expressly discuss the state

constitutional origin of the Poletown test. See Minneapolis Comm.

Dev. Agency v. Opus Northwest, LLC, 582 N.W.2d 596, 599 (Minn.

Ct. App.), review denied, 1998 Minn. LEXIS 779 (1998) (holding

that heightened scrutiny is contrary to both the national trend

and Minnesota precedent); cf. Acco Unlimited Corp. v. City of

Johnston, 611 N.W.2d 506 (lowa 2000) (in equal protection

challenge to condemnation, property owner conceded that

heightened scrutiny did not apply because claim did not

involve a fundamental right or suspect classification).

% The petitioners’ reliance upon decisions from New Jersey

and Indiana is misplaced. See Petitioners’ Brief at 13 n.9. As

petitioners concede, the New Jersey Supreme Court's only

statement on this issue has been in dicta. See City of Atlantic City

v. Cynwyd Investments, 148 N.J. 55, 73, 689 A.2d 712 (1997).

Moreover, neither of the New Jersey decisions cited by

petitioners include any discussion or analysis of the Poletown

test's origins in Michigan constitutional law, nor do they

evaluate whether “heightened scrutiny” is contrary to federal

16

There is a second reason why the decisions of the

Michigan and Delaware Supreme Courts do not, at least

at this time, create a conflict that is worthy of the time

and attention of this Court. Despite the appellation of

“heightened scrutiny,” one could question whether the

Poletown test actually differs from the deferential “ratio-

nal relation” test applied by federal courts under the

Berman/Midkiff line of cases. If the Michigan and Dela-

ware courts have truly adopted a “heightened scrutiny”

standard (analogous to heightened scrutiny analysis

under the equal protection clause), then it is clearly con-

trary to the decisions of this Court and review is not

warranted for that reason. If, however, the Poletown court,

through the use of the term “heightened scrutiny,” simply

meant that a trial court addressing a public use issue

—must consider any evidence that the stated purpose of the

taking is pretextual, then the Poletown test is not true

“heightened scrutiny” analysis and is consistent with fed-

eral law. Interpreted in this manner, the Poletewn test is

analogous to a rule of relevance in cases involving public

An nae

law. See id.; Township of West Orange v. 769 Associates, LLC, 341

N.J.Super. 580, 583-84, 775 A.2d 657 (N.J. App. Div. 2001). Prior

to the Township of West Orange decision, a New Jersey trial court

held that the Cvnwyd court had not embraced the “heightened

scrutiny” standard, but rather simply reaffirmed the settled

principle that a condemnation can be invalidated where the

stated public purpose differs from the actual purpose of the

taking. Casino Reinvestment Development Authority v. Banin, 320

N.J. Super. 342, 346 (N.J. Law Div. 1998). Similarly, the decision

of the Indiana Supreme Court in Hawley v. South Bend, Dept. of

Redevelopment, 270 Ind- 109, 383 N.E.2d 333 (1978) is of little

relevance here. As petitioners admit, the Hawley court did not j

adopt a “heightened scrutiny” standard. A

17

use issues. Specifically, the Poletown test could be con-

strued as simply meaning that where a party contests a

taking on the ground that it is for a private benefit, not a

public use, then the court must not merely “rubber

stamp” the decision of the condemning authority, but

must instead consider any evidence of the facts and cir-

cumstances surrounding the taking that would tend to

show that the true purpose differs from the stated pur-

pose. Cf. Wilmington Parking Authority v. Land With

Improvements, 521 A.2d at 231 (discussing Poletown test

and then stating that in reviewing projects where private

parties may benefit, the trial court should examine any

evidence of the “underlying purpose” of the condemnor);

Hawley v. South Bend, Dept. of Redevelopment, 270 Ind. at

120 (court must consider all evidence regarding what is

the principal use to be made of property). If the Poletown

test simply means that evidence that a taking is truly for

a private benefit must be considered if offered, then it is

entirely consistent with federal law.!°

These two alternative interpretations of the Poletown

test are mutually exclusive. Either the Poletown test repre-

sents true heightened scrutiny and is therefore contrary

to federal law, or it is simply a rule of relevance and thus

there is not a true conflict between the decisions of the

10 Even applying a deferential standard of review,

Connecticut courts have struck down takings where there was

sufficient evidence that the stated purpose of the taking was

pretextual. See Avalonbay Communities, Inc. v. Orange, 256 Conn.

957, _. A.2d ___ (2001) (invalidating taking of land for

purported purpose of developing an industrial park where real

purpose was to prevent development of subject parcel for

affordable housing).

18

highest courts in Connecticut, Michigan, and Delaware.

Under either interpretation, the petitioners’ writ should

be denied. Moreover, the fact that neither the Michigan

nor Deiaware Supreme Courts specifically addressed the

state constitutional origins of the Poletown test suggests

that this conflict between state courts — if it is indeed a

true conflict - has not been addressed with sufficient

clarity by the state courts so as to warrant this Court’s

review of the issue at this time.

3. The Factual Predicate For The Petitioners’ Claim

Was Rejected By The Trial Court.

The writ should also be denied because the peti-

tioners’ entire claim rests upon a factual claim that was

rejected by the trial court after thoroughly considering all

the evidence offered by petitioners in support of their

contention that the purpose of this taking was to benefit a

local manufacturer named Yarde Metals, rather than to

obtain the economic development benefits of job creation

and an increased tax base. This was not a case where the

trial court merely “rubber stamped” the decision of the

City of Bristol to exercise the power of eminent domain

without examining evidence regarding the origin and

underlying purpose of the project. Rather, the trial court

conducted several days of hearings at which the peti-

tioners’ counsel extensively questioned the director of the

Bristol Development Authority, the mayor of the City of

Bristol, and the president of Yarde Metals regarding peti-

tioners’ claim that the purpose of this taking was to

benefit Yarde Metals. After hearing all this testimony and

19

reviewing the numerous documentary exhibits, the trial

court found that:

[a]lthough the city had numerous discussions

with and made plans to have Yarde Metals as an

anchor tenant in the proposed industrial park,

no agreement or contract, written or oral, was

made with Yarde Metals. Furthermore, and

more telling, the evidence shows the city plans

on developing the industrial park whether or

not Yarde Metals indeed becomes a tenant. This

court notes that even if Yarde Metals becomes

the hoped-for anchor tenant, it will have to com-

ply with the developmental plan as approved by

Bristol’s Developmental Board and City Coun-

cil. Therefore, this court finds that the home-

owners’ claims of constitutional right violations

are without merit.

(Trial Court Decision, Petitioners’ Appendix at 35).

Even in the unlikely event this Court were to grant

certification and ultimately adopt a “heightened scru-

tiny” test, it is hard to conceive how the analysis on

remand would be any different from the thorough anal-

ysis of the public use issue conducted by the trial court.

The petitioners cite no evidence on the “private/public”

use issue that was excluded by the trial court, nor do they

even attempt to explain how “heightened scrutiny” could

change the trial court’s factual findings in any manner.

The simple truth is that the trial court, after conducting a

detailed analysis of the petitioners’ factual claims regard-

ing the purpose of this taking, rejected their claim that

the purpose of this industrial park was to benefit Yarde

Metals. Having been unsuccessful in attempting to con-

vince the trial court that the underlying purpose of the

20

industrial park at issue was to benefit Yarde Metals, the

petitioners now raise this standard of review issue in this

petition.

Moreover, even if this Court were to grant certifica-

tion, the “heightened scrutiny” issue should not even be

reached unless the trial court was clearly erroneous in

determining that this taking was not designed to benefit

Yarde Metals. In their petition for certification to the

Connecticut Supreme Court, the petitioners expressly rec-

ognized that their “heightened scrutiny” claim was

dependent upon a factual argument that the trial court

rejected. Specifically, the petitioners asked the Connecti-

cut Supreme Court to review the following two questions:

A. When condemnation authority is exercised

in such a manner that it is designed to benefit a

specific and identifiable private interest, should

the Court apply heightened scrutiny in deter-

mining whether the predominant interest being

advanced is the public interest?

B. If the answer to the preceding question is in

the affirmative, did the Court err in failing to

apply the strict scrutiny in the instant case.

(Petition for Certification to Connecticut Supreme Court

at pp. 1-2). Noticeably absent from the petition for a writ

of certiorari to this Court is any reference to the second

question above, namely, whether there are sufficient facts

in this record to establish that the trial court should have

applied heightened scrutiny in this case. The trial court’s

factual findings that Yarde Metals never committed to the

project, and that the industrial park would proceed with

or without Yarde Metals, preclude the application of

21

heightened scrutiny here, even if this Court were to rule

that it should apply in some circumstances.

The factual circumstances of the present case should

be contrasted with those in the Michigan and Delaware

cases where heightened scrutiny was applied. For exam-

ple, in Poletown, the City of Detroit was condemning an

entire neighborhood comprising a 465-acre tract for a

single user —- General Motors. Poletown, 410 Mich. at

636-37. In contrast, the Southeast Bristol Mini-Industrial

Park will include twelve-fifteen lots to be occupied by

multiple users. Moreover, unlike the present case, there

was no issue in Poletown as to whether General Motors

would purchase the site if the City acquired it, and there

was no evidence that the City would have proceeded

with the taking absent General Motors’ involvement.

Here, the trial court expressly found that Yarde Metals

never committed to the industrial park and that the City

planned to develop the park even without Yarde Metals’

involvement as a tenant. (Trial Court Decision at Peti-

tioners’ Appendix 35). Similarly, in Wilmington Parking

Authority v. Land With Improvements, 521 A.2d 227 (1986),

there was no evidence of any doubt that the private entity

allegedly benefited would ultimately participate in the

project, nor was there any evidence that the project

would have proceeded without that entity’s involvement.

In sum, the trial court’s decision demonstrates that it

engaged in the type of review that petitioners assert was

necessary, namely, an inquiry into the facts and circum-

stances underlying this taking. Having considered this

evidence carefully, the trial court rejected petitioners’

factual claim that the respondents exercised the eminent

domain power in order to directly benefit a specific and

22

identifiable private interest. The petitioners’ request for

this Court’s review of the “heightened scrutiny” issue is

therefore precluded by the factual rulings of the trial

court.?!

4. The Case Is Moot.

The final reason why the petition should be denied is

that this case is now moot because of events that occurred

while this matter was pending before the Connecticut

Appellate Court. “[I]f an event occurs while a case is

pending on appeal that makes it impossible for the court

to grant ‘any effectual relief whatever’ to a prevailing

party, the appeal must be dismissed” as moot. Church of

Scientology of California v. United States, 506 U.S. 9, 12

(1992); Calderon v. Moore, 518 U.S. 149, 150 (1996). The

premise of the petitioners’ entire case no longer exists

because Yarde Metals ultimately decided to move its

operations to another town in Connecticut due to the

long delay caused by this litigation. Specifically, Yarde

Metals purchased an existing industrial plant in the

11 Because the petitioners’ claim is based upon the factual

predicate that the City exercised “its condemnation authority in

such a manner as to directly benefit a specific and identifiable

private interest, the respondents have raised a second question

for certification (should this Court grant certiorari on the issue

raised by petitioners) as to whether this predicate finding exists

here. Specifically, if the Court grants the petition, the

respondents seeks certiorari on the issue of whether the record

in this case warrants the application of heightened scrutiny

given the trial court’s findings that the purpose of the taking

was to develop an industrial park that would proceed with or

without Yarde Metals’ involvement.

23

neighboring town of Southington, Connecticut in March

of 2001 and thus will not be relocating to the Southeast

Bristol Mini-Industrial Park. (During the trial, Yarde Met-

als’ owner had testified that he had begun looking at

industrial properties in other towns and had to move

forward in the near future with a decision on relocation.)

The decision of Yarde Metals to relocate to another

town renders this case moot because the only issue for

which petitioners seek certification is whether the trial

court should have applied heightened scrutiny to the

public use issue due to the alleged involvement of Yarde

Metals in this project. In the event that this Court were to

grant certification and overrule the Berman / Midkiff line of

cases, the most that petitioners could hope for is a

remand to the Connecticut courts for a determination as

to: (1) whether heightened scrutiny should be applied to

the facts of this case; and (2) if so, whether the taking is

valid under the heightened scrutiny test.

The outcome of such a remand is preordained and

therefore this Court cannot provide petitioners with any

practical relief. On remand, the petitioners would pre-

sumably offer evidence in support of their claim that

Yarde Metals allegedly receives a direct benefit from this

condemnation and therefore the taking is not for a public

use. The respondents would then introduce evidence con-

cerning Yarde Metals’ relocation to Southington and Bris-

tol’s plans to proceed with the industrial park, thereby

mooting petitioners’ entire case. The very fact that the

City of Bristol is still proceeding with the plans for devel-

opment of this industrial park (despite the loss of Yarde

Metals as a potential tenant) substantiates the trial court’s

factual finding that the purpose of this project was never

24

to benefit Yarde Metals, and that the project would go

forward with or without the involvement of Yarde Met-

als.

The petitioners are well aware of Yarde Metals’

relocation to Southington. The respondents are hard

pressed to understand why petitioners have sought cer-

tiorari because petitioners simply will not be able to

obtain the relief they ultimately seek - an injunction of

the taking. The most the petitioners can obtain from this

Court’s granting of certification is a Pyrrhic victory

requiring a remand whose outcome has already been

determined. While the pursuit of such victories may be a

noble endeavor, the petitioners have wholly failed to

provide this Court with any reasons why it should

address an argument that, in addition to being moot, is

contrary to its long-settled precedent, does not represent

a significant conflict among State courts, and relies upon

a factual predicate that was rejected by the trial court.

+

25

CONCLUSION

- For the foregoing reasons, the respondents respect-

fully request that the petition for a writ of certiorari be

denied.

Respectfully submitted,

BRiAN T. HENEBRY

Counsel of Record

Carmopy & Torrance LLP

50 Leavenworth Street

P.O. Box 1110

Waterbury, CT 06721-1110

(203) 573-1200

Counsel for Respondents

October 8, 2001