Opposition Brief — Didden v. Village of Port Chester (No. 06-652)

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No. 06-652

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IN THI

Supreme Court of the United States

BART DIDDEN, et al...

Petitioners.

1

VILLAGE OF PORT CHESTER, e¢ ai.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Unitep STATES Court OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

Mark S. TUuLIs ALAN D. SCHEINKMAN

OXMAN, TULIS, KIRKPATRICK, Counsel of Record

Wuyatt & GEIGER, LLP DELBELLO DONNELLAN

120 Bloomingdale Road WEINGARTEN TARTAGLIA

White Plains, NY 10605 Wise & WIEDERKEHR, LLP

(914) 422-3900 MatTHEW S. CLIFFORD

One North Lexington Avenue

White Plains, NY 1060]

(914) 681-0200

Joun E. Watkins, Jr.

Watkins & Watkins, L.L.P.

175 Main Street

White Plains, NY 1060]

(914) 428-1292

Counsel for Respondents

i

QUESTIONS PRESENTED

I. May this Court properly consider the merits of

Petitioners’ theoretical constitutional claims which have been

dismissed as barred by the statute of limitations?

Il. Have Petitioners shown compelling reasons to grant

the Petition where the Second Circuit decided this case based

on the statute of limitations and its determination is set forth

in an unpublished summary order which may not be cited as

precedent?

III. May this Court properly consider a “governmental

exaction” theory which was not pled in the Amended

Complaint?

IV. Where a municipality and its designated developer

entered into a contract which obligated the developer to

redevelop a blighted area and obligated the municipality to

pursue condemnation of privately-owned property within the

blighted area upon request from the developer, have

Petitioners shown that there is a compelling reason to review

the determinations of the courts below that a settlement offer

made by the developer to the owners of private property

in an effort to avoid litigation did not give rise to any

constitutional violation?

ii

RULE 29.6 DISCLOSURE STATEMENT

G&S Port Chester, LLC, the only Respondent in

corporate form, is a non-governmental limited liability

company. It does not have a corporate parent and no publicly

held company has any ownership interest in it.

iii

TABLE OF CONTENTS

QUEST RING FRESE occcccesccecccecess

RULE 29.6 DISCLOSURE STATEMENT ........

REASONS FOR DENYING THE PETITION .....

I.

Uf.

Because This Action Was Dismissed As Time-

Barred And As Waived, And Petitioners Have

Not Sought Review Of Those Grounds For

Dismissal, This Court Should Not Consider

Petitioners’ Constitutional Arguments .......

The Second Circuit’s Summary Order Does

Not Create Any “Constitutional Immunity”,

Does Not Have Any Precedential Value, And

Does Not Give Cause To Re-Examine Kelo

© CHG OW COREE oc vinvcawnce dunes

Petitioners’ Exaction Argument Was Not

POE COE 0.00 ce cevdecseencdvdees kes

Page

iil

iv

Contents ‘

Page

IV. Petitioners’ Constitutional Exactions Argument

Presents No Compelling Reason To Grant The

PR Gaskeket cee re ree eeieaseas 24

CCS ¢ 0% 66 nde easc keke teks ouNekins 26

TABLE OF CITED AUTHORITIES

Page

_CASES 2

Alpha S.S. Corp. v. Cain, 281 U.S. 642 (1930) .... 11

Am. Nat. Bank and Trust Co. of Chicago v. Haroco,

BG TIS a OO CREE cs ve poke os ee eee 10

Annunizato v. The Gan, Inc., 744 F.2d 244 (2d Cir.

Ss ck oe kk CRS 6 SARA ae ee Cee 21

Arlington v. Golddust Twins Realty Corp., 41 F.3d

EE ok cok ee eee eek 19

Berman v. Parker, 348 U.S. 26 (1954) ...16, 17, 18, 19, 24

Bogle-Assegai v. Conn., __ F.3d __, 2006 WL

Pa eeS Cae Ge ka va kev ee ae en es 12

Centex Corp. v. U. S., 395 F.3d 1283 (Fed. Cir. 1997)

Ce Metis Wad Ch Naat Re ee Gatie oa 16

Christian Coal. of Ala. v. Cole, 355 F.3d 1288 (11"

GE ive buen seve neeesrereeaees 11

City of Mequite v. Aladdin’s Castle, Inc., 455 U.S.

ERED Sai Seiko cna Kea eran eaes 13

Clay v. Sun Ins. Office, Ltd., 363 U.S. 207 (1960) ... = 13

Comm'r of Pa. Dept. of Pub. Welfare v. Markiewicz,

ge ee Lo BS |} Re ee arenes 13

vi

Cited Authorities

Page

County of Wayne v. Hathcock, 471 Mich. 446, 684

PPO ENE be dd cidtaecdeeviecese's 17

Crocco v. Xerox Corp., 137 F.3d 105 (2d Cir. 1998)

ere at ee ee rk Aye ee ee er rer pr 15

De La Teja v. U. S., 321 F.3d 1357 (11" Cir. 2003)

Sir seed de aR een re cake ae en ees 12

Didden v. Village of Port Chester, 304 F.Supp.2d 548

LN EE ay chu eink dee coe cane eee 7

Didden v. Village of Port Chester, 322 F. Supp. 2d

385 (S.D.N.Y. 2004), aff’d, 173 Fed.Appx. 931,

2006 WL 898093 (2d Cir. 2006) ............. 7

Dolan v City of Tigard, 512 U.S. 374 (1974) ... 2, 24, 25

Elmarsi v. England, 111 F.Supp.2d 212 (E.D.N.Y.

Snes ch ds ule ON alas Oe RON Oe eee 22

Fariello v. Rodriquez, 148 F.R.D. 670 (E.D.N.Y.

1993), affirmed, 22 F.3d 1090 (2d Cir. 1994) ... 22

F-C.C. v. Pacifica Found., 438 U.S. 726 (1978) ... 11

Ginsberg v. Healy Car & Truck Leasing, Inc., 189

foe ss fe Bere re 21

Gomez v. Toledo, 446 U.S. 635 (1980) ........... 21

vil

Cited Authorities

Page

Hall v. Beals, 396 U.S. 45 (1969) ............... ae

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

EEE: & écisulalpcda 6h ab eel bade date eee 17, 18

Honig v. Doe; 484 U.S. 305 (1988) ............. 11

Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67

PR dtc ceed den Che whew Reet eeewks oaees 11

Jean v. Nelson, 472 U.S. 846 (1985) ............ 13

Kelo v. City of New London, 545 U.S. 469, 125

es aes Ec G'o'ue db cone eed nue cues passim

Kramer v. Time Warner, Inc.., 937 F.2d 767 (2d Cir.

SOE bt vce baa Cab d techs eek s Cviek cee 3

Lambrix v. Singletary, 520 U.S. 518 (1997) ....... 13

Mc 'Cluny v. Silliman, 28 U.S. 270 (1830) ........ 11

Mobil Oil Exploration & Producing Southeast, Inc.

un U. 5, 550 US. GEG GOGO) nc cccccvcccceccs 16

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987)

Paschall v. Christie-Stewart, Inc. 414 U.S. 100

(1973)

Vili

Cited Authorities ; .

Page

Pincay v. Andrews, 238 F.3d 1106 (9" Cir. 2001)

en rere rire operat tomey tEAM AR eres 12

Powell v. McCormack, 395 U.S. 486 (1969) ...... 12

Printers Il, Inc. v. Prof 'ls Pub’g, Inc., 784 F.2d 141

Co Cal: ESP 6.sikes seupees ceeeveuresanse 24

R.C. Bigelow v. Unilever N.V., 867 F.2d 102 (2d Cir.),

cert denied, 493 U.S. 815 (1989) ............. 12

Rescue Army v. Mun. Ct. of City of Los Angeles, 331

CPAP CREED: we awedvibeae sa becneee 13

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

CRORE 410k caw eee ecaucan cee elec aie 19

Rosenthal & Rosenthal Inc. v. New York State Urban

Dev. Corp., 605 F.Supp. 612 (S.D.N.Y. 1985),

affirmed, 771 F.2d 44 (2d Cir.), cert. denied, 475

Cs FOR UPEEE: Viscdéeedeccasseenaventaaet 19

Seimitsu Kogyo Kabushiki Kaisha v. U. S. Phillips

Cabm., FIO UD. £1 (00S e) h0vn es vdsecenieuns 10

Sira v. Morton, 380 F.3d 57 (2d Cir. 2004) ....... 3

Spector Motor Co. v. McLaughlin, 323 U.S. 101

‘Li! eee re er rere ere Por ere 13

U. S. v. Spearin, 248 U.S. 132 (1918) ........... 16

SAA ae it ERE ci DE A RL: NER nl; I NRE RE

LLL ne ee tain ieee

ix

Cited Authorities

Page

U. S. v. Winstar Corp., 518 U.S. 839 (1996) ...... 16

U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of

Am., Inc., 508 U.S. 439 (1993) ............5. 1]

Wilson v. Garcia, 471 U.S. 261 (1985) ........... 21

Yee v. Escondido, 503 U.S. 519 (1992) .......... 10

COURT RULES

Se 1

ea coves eu ps views @eveceseee 10

Second Circuit Local Rule 0.23 ..............-- 15

CODES STATUTES & RULES

STEED cecvccvetesiveccastcovdecers 21

1

JURISDICTION

Respondents assert that this Court lacks jurisdiction over

the Petition because Petitioners’ constitutional arguments do

not present a “case or controversy” given that this action was

dismissed upon the independent grounds of statute of limitations

and waiver, which Petitioners do not contest in this Court.

INTRODUCTION

The Petitioners in this case have presented no “compelling

reasons” for this Court to grant their Petition for Writ of

Certiorari (“Petition”). Sup. Ct. R. 10. Petitioners have failed

to challenge in their Petition the District Court’s finding, which

was affirmed by the Second Circuit, that the running of the

applicable statute of limitations barred Petitioners’ claims.

The District Court also found that Petitioners had waived their

right to challenge the public purpose of the redevelopment

project, a finding not disturbed by the Second Circuit. Petitioners

have not included in their Questions Presented any question

relating to these grounds for dismissal (Pet. at 1) and have not

made any argument that the dismissal of their case on these

grounds was erroneous, much less that such dismissal presents

issues worthy of review by this Court.

Petitioners’ attempts to obtain review by casting the Second

Circuit’s interpretation of Kelo v. City of New London, 545 U.S.

469 (2005) to mean that any use of eminent domain within a

blighted, urban renewal district is constitutional, as a matter of

law, is misplaced. The Second Circuit mentioned Ke/o only after

finding that the District Court properly dismissed Petitioners’

claim because the statute of limitations had run. It commented

that, even if not time barred, the challenge by these Petitioners

to this project was without merit. It did not rule that all challenges

to all projects would be barred. In any event, the Second Circuit

entered a summary order which may not be cited in any

other cases, so the Second Circuit’s comment has no application

beyond this case.

2

Petitioners’ exaction claims also are unavailing. Petitioners

failed to properly plead these claims in their Amended

Complaint. Moreover, Petitioners’ theory that Respondents’

conduct is actionable under Nollan v. Cal. Coastal Comm’n,

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

(1974) does not present any compelling reason for granting the

writ. As the District Court properly recognized, Petitioners did

not have any conditions placed upon the use of their property

while they were in ownership. Petitioners’ sole claim is that the

Village of Port Chester (the “Village”’) refused to process their

application to re-zone their property so as to remove it from the

project area. However, since there was a valid, unchallenged

public purpose finding, Petitioners had no substantive right to

demand that their property be excluded from redevelopment

and the refusal to grant their request is not an exaction. To the

contrary, the Village sought to have the entire project area

redeveloped (including some of Petitioners’ properties) and had

imposed contractual obligations upon the developer to redevelop

the entire area, with financial penalties if it breached. Petitioners

formulated a plan to redevelop their properties only after the

redevelopment project was well underway. For the Village to

agree to Petitioners’ belated plan meant the redevelopment

would be less extensive than it preferred and create an isolated

building lot. In addition, the developer would confront potential

liability to the Village for not completing the development.

Thus, it would hardly be an ‘exaction” to request compensation

for these losses.

\

3

STATEMENT OF THE CASE

This case involves an effort by Petitioners, who were

landowners in a blighted urban renewa! district, to belatedly

cash in on the hard work and millions of dollars of investment

put at risk by a municipality’s designated developer to redevelop

the long-neglected community in accordance with an integrated

plan adopted by.the municipality. Petitioners conceded below

that they have no issue with the redevelopment project or even

with the municipality’s public purpose finding authorizing the

use of eminent domain. (Pet. App. 52-53). Petitioners could not

interest anyone in their properties until several years after the

project was underway. At that point, the municipality asked the

developer to meet with Petitioners to try to avoid a contested

condemnation proceeding. The developer made a good faith

proposal, which Petitioners rejected and have since tried to turn

into a federal case. The Courts below properly dismissed the

action; the Second Circuit’s determination was rendered in a

summary order which may not be cited in unrelated cases and

lacks precedential value.'

Starting in November, 1977, the Village adopted a series

of urban renewal plans designed to clear and reconstruct

blighted, substandard and unsanitary areas of the Village.

(Am. Compl., Ex. | at 1).? Despite repeated efforts and changes

1. While undoubtedly unintentional, the version of the Second

Circuit’s summary order set forth in the Appendix to the Petition does

not contain the prohibition against citation contained in the official

version of the summary order.

2. Contrary to Petitioners’ assertion (Pet. at | n.1), the Courts below

did not simply look to the bare allegations of the Amended Complaint.

On a Rule 12(b)(6) motion, the Courts below may, and did, consider

the written instruments attached to it as exhibits, the materials

incorporated in it by reference, documents which, though not

incorporated by reference, are “integral” to it, and public documents

which may be the subject of judicial notice. Sira v. Morton, 380 F.3d

57, 67 (2d Cir. 2004); Kramer v. Time Warner, Inc., 937 F.2d 767, 773

(2d Cir. 1991); 2 Moore’s Federal Practice (3d Ed.) 412.34[2]).

4

over a nearly 20 year period, these efforts did not succeed.

(/d.; Am. Compl., Ex. 3 at Ex. A). Nevertheless, Petitioners

have never disputed that the areas in question were blighted.

In April, 1998, the Village, after soliciting proposals from

prospective developers, selected a proposal from G&S Port

Chester, LLC (“G&S”) for the redevelopment of the Marina

Redevelopment Project Urban Renewal District (the “MUR

District”) (Am. Compl., Ex. | at 2). The project provided for

the redevelopment of 27 acres of the Village, the development

of 500,000 square feet of modern retail establishments, and the

construction of millions of dollars worth of public infrastructure,

including: a waterfront park and new sea wall; new water,

sanitary and storm sewers, new traffic controls, new street

curbs and lights; and the removal of old overhead utility lines.

(Pet. App. at 18, 20).

In 1999, the Village conducted a process of public hearings

and meetings leading to the adoption, on July 14, 1999, of a

Land Acquisition and Disposition Agreement (“LADA”) with

G&S. (Id. at 1-3; Am. Compl., Ex. 3). The LADA, a complicated

instrument running 60 single-spaced pages, provided that the

Village would sell the land within the MUR District to G&S

and that G&S would construct the project on the land, including

required public improvements, in accordance with the project

plans approved by the Village. (Am. Compl., Ex. 1). The LADA

required G&S to implement and construct the project diligently.

It imposed liability upon G&S for failure to meet its obligations

and required G&S to post substantial security (/d. at 41-45, 51-

107). In turn, the Village was subject to liability if it breached

its contractual obligations. (/d. at 53-54).

Since the Village did not then own all of the property in the

MUR District, the LADA required that the Village would, upon

notice from G&S, proceed diligently to acquire by eminent

domain title to privately owned parcels within that area.

5

(/d. at 12-13). G&S was ultimately responsible for the costs of

acquisition. (/d at 13). In addition, G&S was given the right to

proceed on its own (i.e., through negotiation) to acquire title to

the privately-owned parcels. (/d. at 66).

At the same time that the Village adopted the LADA, it

also adopted its Determination and Findings pursuant to Article

2 of the New York Eminent Domain Procedure Law (“EDPL”),

concluding that acquisition of private property in the MUR

District would be for a public purpose, specifically in order to

provide for “the clearance and reconstruction of certain blighted,

substandard and unsanitary areas of the Village”. (Am. Compl.,

Ex. 3 at Ex. A).

Petitioners are the owners of certain properties in the

Village, located both inside and outside the MUR District. (Am.

Compl. 4/36). In 1996, before G&S entered the Port Chester

scene, Petitioners attempted to interest CVS, a national

pharmacy chain, in constructing a store on their property but

were told that CVS had no interest in Port Chester. (Pet. App. at

24-26).

G&S and Petitioners had a long course of dealing and had

met repeatedly over the years in an effort to find common

ground. (Pet. App. 28). Anticipating that the project would

increase development interest in the Village, and possibly trigger

interest from CVS, Petitioners Didden and Bologna, in March,

1999, before the adoption of the LADA and the EDPL

Determination and Findings, complained to the Village that they

would be put at a “unique disadvantage” by the use of

condemnation for the G&S project and urged the Village to carve

their properties entirely out of the District. (Pet. App. at 24-27).

Petitioners were notified in writing of the public hearing

on the proposed LADA and the EDPL Determination and

Findings (Pet. App. at 19). However, they did not commence

6

judicial proceedings to challenge the adoption of the LADA or

the July, 1999 Determination and Findings (/d.), though state

law permitted such challenges.

Because of the project’s size and complexity, it proceeded

in stages. While the first phase was under construction, the

second phase was significantly delayed by a federal injunction

lifted on August 8, 2001, (/d. at 21), and thereafter by state

court stays of the eviction of certain tenants. (/d. at 21-22).

Despite these difficulties, the development proceeded.

In 2002, G&S announced its intention to locate Walgreens,

a national drug store chain, in the “Retail E” section of the

project, an area that includes properties owned by Petitioners.

(Id. at 22). G&S had turned to Walgreens after it could not make

a deal with CVS. (/d.). In response, CVS turned to Petitioners.

(Id. at 23). Petitioners entered into a lease with CVS, despite

knowing that, under the LADA, G&S might request that the

Village pursue condemnation of the portion of their property

that was located within the District boundaries. (/d.). According

to Petitioners, the Village Board reacted positively to the CVS

Project and told them to pursue an application to the Village

Planning Commission. (Am. Compl. $41). However, the Village

Attorney told Petitioners that they would need to come to an

understanding with G&S in order to be able to proceed with the

CVS Project. (/d. 442). Any such statement would have been

entirely consistent with the LADA, which obligated G&S to

develop the project, including Walgreens, and required G&S to

obtain title from the Village to the privately-owned land,

including the property owned by the individual Petitioners within

the MUR District.

In November, 2003, at the urging of the Village,

representatives of G&S and Petitioners met to discuss a

resolution of their differences. Petitioners allege that G&S

demanded $800,000 or a partnership interest in Petitioners’ CVS

7

Project or else G&S would proceed with its project, including —

the condemnation of Petitioners’ properties within the MUR

District. Petitioners refused the demand (Am. Compl. §948-49).’

Since the November 5, 2003 meeting did not lead to a

resolution, a state condemnation proceeding was brought by

the Village against Petitioners’ properties within the MUR

District. (Am. Compl. Ex. 3). Petitioners then initiated this

action and unsuccessfully sought to have the District Court

enjoin the condemnation proceeding. (Pet. App. 16-59); Didden

v. Village of Port Chester, 304 F. Supp. 2d 548 (S.D.N.Y. 2004)

(““Didden I’). The District Court invited Respondents to move

to dismiss-and, following the submission of written motion

papers, the District Court granted the motion and dismissed the

Amended Complaint. (Pet. App. at 5-15; Didden v. Village of

Povi Chester, 322 F.Supp.2d 385 (S.D.N.Y. 2004) (“Didden IT’’),

aff ‘d, 173 Fed. Appx. 931, 2006 WL 898093 (2d Cir. 2006). In

granting dismissal, the District Court relied upon its earlier

decision in Didden I, as supplemented by the reasons set forth

in its Didden II decision. (Pet-App. at 7). Petitioners appealed

to the Second Circuit which affirmed, by summary order, issued

April 5, 2006. (Pet. App. at 1-4).

The District Court held that the action was barred by the

statute of limitations. It reasoned that the three year statute of

limitations began to run when Petitioners knew or had reason

to know of the injury that was the basis of the action. (Pet. App.

at 10). The District Court reasoned that the statute began to run

on July 14, 1999, when the Village adopted the LADA and the

EDPL Determination and Findings, and, therefore, the action

3. G&S contends that it had valued the CVS deal at $2 million

and proposed $800,000 as a figure at which either G&S or Petitioners

could buy-out the other in order to avoid litigation. (Pet. App. at 29). If

Petitioners had accepted the $800,000 buy-out, Petitioners would also

have been paid the fair market value of their property. (/d).

8

was not timely. (/d). The District Court rejected Petitioners’

argument that they did not suffer any injury until November 5,

2003, when G&S made its settlement demand, reasoning that,

as shown by Petitioners’ own March 30, 1999 letter to the

Village, Petitioners were fully aware that the adoption of the

LADA and EDPL Determination and Findings would expose

their property to condemnation. (/d.). On appeal, the Second

Circuit agreed with the District Court, holding that Petitioners

had reason to know of their injury as of July 14, 1999, and,

likewise, rejected the claim that Petitioners’ injury did not accrue

until November, 2403. (Pet. App. at 3).

The District Court also concluded that Petitioners had

waived their right to challenge the public purpose of the

redevelopment project. It concluded that, because Petitioners

were fully aware of the consequences of condemnation findings,

had notice of the public hearings that preceded the Determination

and Findings, and failed to bring a judicial challenge within the

time allowed by New York law, it was too late for Petitioners to

challenge the Determination and Findings. (Pet. App. at 12-

13). The Second Circuit did not discuss this conclusion in its

summary order.

While the District Court’s dismissal on statute of limitations

and waiver grounds by itself disposed ct the case, the District

Court commented that Petitioners’ allegation that G&S had made

an “extortionate” demand added nothing of legal significance

to their claims. The District Court noted that, as Petitioners

themselves acknowledged, G&S had the legal right under the

LADA to notify the Village to seek condemnation and, even if

G&S asked for money in exchange for giving up its legal nghts,

that would not give rise to any claim by Petitioners. (/d. at 14).

The Second Circuit agreed, stating that voluntary attempts to

resolve Petitioners’ demands were not unconstitutional exaction

in the form of extortion. (/d. at 4).

9

The District Court also considered Petitioners’ “new”

argument that there had been an unconstitutional exaction,

-concluding that there had been no exaction. No restrictions had

been put on Petitioners’ property during their ownership.

Petitioners had proceeded to seek approvals for their CVS

Project knowing that some of their property was subject to

condemnation. “Since [Petitioners] concede that the July 1999

findings are unchallenged and their property was appropriately

placed in the condemnation zone, the constitutional public

purpose requirement has been met”. (/d. at 12). Petitioners

had no other substantive rights other than to receive just

compensation. (/d.). The Second Circuit agreed.

The Second Circuit heard oral argument on March 24, 2005.

Thereafter, this Court, on June 23, 2005, handed down Kelo v,

City of New London, 545 U.S. 469, 125 S. Ct. 2655 (2005).

The next day, counsel for Respondents wrote to the Second

Circuit alerting it to the Ke/o decision and offering to brief its

import on this litigation. However, the Second Circuit did not

invite such submissions and decided this case on April 5, 2006,

without them.

The Second Circuit, in its summary order, observed that,

even if Petitioners’ claims were not time-barred, Kelo compelled

rejection of Petitioners’ claim that the Takings Clause prevents

the State from condemning their property for a private use within

a blighted, urban renewal district. (Pet. App. at 3-4). This

observation was directly responsive to the opening statement

in Petitioners’ Summary of Argument in their main brief to the

Second Circuit: “The District Court did not rule upon the merits

of Plaintiff's [sic] claim that condemnation of the Subject

Properties was undertaken solely for a private purpose in

violation of the Public Use Clause of the Fifth Amendment.”

(Pet. Br. at 13).

10

REASONS FOR DENYING THE PETITION

I. Because This Action Was Dismissed As Time-Barred

And As Waived, And Petitioners Have Not Sought

Review Of Those Grounds For Dismissal, This Court

Should Not Consider Petitioners’ Constitutional

Arguments

The District Court dismissed all of Petitioners’ claims as

time-barred and as having been waived (Pet. App. at 9-10, 12-

13). The Second Circuit agreed that Petitioners’ action is time-

barred (/d. at 3) and affirmed the judgment of dismissal.

In seeking review in this Court, Petitioners have not included

in their Questions Presented any question relating to these

grounds for dismissal (/d. at 1) and have not made any argument

that the dismissal of their case on these grounds was erroneous,

much less that such dismissal presents issues worthy of review

by this Court. Since this Court will not consider any questions

not set out in the petition (Sup. Ct. R. 14), this action will stand

dismissed, no matter the resolution of the questions that

Petitioners do propound’. It is both ancient and elementary that

4. While the Court may consider questions that are “fairly

included” within the questions presented (S.Ct. R. 10[a]), questions

such as whether the statute of limitations has run, or whether Petitioners

have waived their rights, are “analytically and factually” distinct from

whether Ke/o forecloses all claims of private purpose takings and what

constitutional limits, if any, are imposed on demands for cash for

refraining from the use of eminent domain. See /zumi Seimitsu Kogyo

Kabushiki Kaisha v. U. S. Phillips Corp., 510 U.S. 27, 32 (1993);

Yee v. Escondido, 503 U.S. 519, 537 (1992) (the question whether an

ordinance effected a physical taking did not include the related question

of whether it effected a regulatory taking); Am. Nat. Bank and Trust

Co. of Chicago v. Haroco, Inc., 473 U.S. 606, 608 (1985) (question of

whether a complaint adequately alleged conduct of racketeering

enterprise was held not to be “fairly included” in a question of whether

the statute requires that the plaintiff suffer damages through defendant’s

conduct of the enterprise).

1]

where a case is dismissed as time-barred, “the court cannot look

into the cause of action”. Mc’Cluny v. Silliman, 28 U.S. 270,

278 (1830). Because this action has not been timely brought,

and Petitioners can no longer contend that it was, the Court

may not examine the merits of Petitioners’ underlying claims.

This Court reviews judgments, not statements in opinions,

an admonition that is applied with special force where the

statements raise constitutional questions as it 1s the Court’s

practice to avoid the unnecessary decision of such issues. F'C.C.

v. Pacifica Found., 438 U.S. 726, 734 (1978). Even if the Court

of Appeals makes an incorrect statement in its opinion, this Court

does not examine the grounds upon which the Court of Appeals

made a correct decision. Alpha S.S. Corp. v. Cain, 281 U.S.

642, 643 (1930).

To satisfy the case or controversy requirement of Article III

of the United States Constitution, the plaintiff must suffer an

actual injury that can be redressed by a favorable judicial

decision. /ron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70

(1983). This requirement persists throughout all stages of review.

Honig v. Doe, 484 U.S. 305, 317-18 (1988). Because the exercise

of judicial power under Article III depends upon the existence

of a case or controversy, the federal courts lack the power to

render advisory opinions. U.S. Nat. Bank of Oregon v. Indep.

Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993). A case must

involve a present, live controversy if the Court is to avoid

rendering an advisory opinion on abstract propositions. Hall v.

Beals, 396 U.S. 45, 48 (1969). The federal courts should not

decide a case on its merits if such a decision could no longer

provide meaningful relief to the parties. Christian Coal. of Ala.

v. Cole, 355 F.3d 1288, 1291 (11" Cir. 2004).

No matter what the outcome of the constitutional questions

posed by Petitioners, their action has been dismissed as untimely.

A favorable decision on the merits of their issues will not change

12

that result and any opinion on the constitutional issues would

be advisory. This case is similar to Paschall v. Christie-Stewart,

- Inc. 414 U.S. 100, 102 (1973), where the holders of mineral

rights disputed the validity of tax sale deeds to the mineral rights,

claiming that they had not been given constitutionally adequate

notice of the tax sales. This Court directed the state court to

determine whether the petitioners’ claims were barred by the

statute of limitations because, if so, any decision by this Court

on the constitutional questions would be advisory and beyond

its jurisdiction. Jd. at 101-102. Even the dissent recognized that

if a constitutional adjudication is not the only basis upon which

a judgment rests, a review of the constitutional adjudication by

this Court would be advisory since the judgment would rest, in

any event, upon independent grounds. /d. at 104 (Douglas, J.,

dissentiiig).

Stated somewhat differently, a case is moot where the parties

lack a legally cognizable interest in the outcome. Powell v.

McCormack, 395 U.S. 486, 496-97 (1969); De La Teja v. U.S.,

321 F.3d 1357, 1362 (11 Cir. 2003). To have such an interest,

there must be an injury that is susceptible to some judicial

remedy. R.C. Bigelow v. Unilever N.V., 867 F.2d 102 (2d Cir.),

cert denied, 493 U.S. 815 (1989). Here, a favorable

determination to Petitioners on their questions presented would

provide them no remedy as the judgment of dismissal would

remain standing on independent grounds. Pincay v. Andrews,

238 F.3d 1106, 1110 (9" Cir. 2001) (“Because we conclude that

- the statute of limitations had run as a matter of law prior to

1989, we need not reach the remaining issues raised by the

Andrews regarding the sufficiency of the evidence. Moreover,

given that we conclude that their RICO claims were untimely,

- Pincay and McCarron’s cross-appeal raising the issue of election

of damages is moot”); cf. Bogle-Assegai v. Conn., _ F.3d _,

2006 WL 3436583 at *12 (2d Cir. 2006) (“Bogle-Assegai’s

arguments going to the merits of her claims of discriminatory

13

and disparate treatment are moot in light of the dismissals on

the grounds of improper service, sovereign immunity, and

untimeliness”); Comm’r of Pa. Dept. of Pub. Welfare v.

Markiewicz, 930 F.2d 262, 266-67 (3d Cir. 1991) (finding that

district court erred in addressing res judicata and personal

jurisdiction where those issues were not essential to the court’s

conclusion that it lacked subject matter jurisdiction).

Treating Petitioners’ constitutional claims as moot in light

of the statute of limitations and waiver dismissal is consistent

with this Court’s long-standing policy of avoiding constitutional

questions where the record presents some other ground upon

which the case may be disposed of. Rescue Army v. Mun. Ct. of

City of Los Angeles, 331 U.S. 549, 569 (1947); accord, City of

Mequite v. Aladdin's Castle, Inc., 455 U.S. 283, 294-295 (1982).

Constitutional questions should be reached only if, after decision

of non-constitutional questions, resolving the constitutional

questions remains necessary. Jean v. Nelson, 472 U.S. 846, 854

(1985); Clay v. Sun Ins. Office, Ltd., 363 U.S. 207, 209-10

(1960). The Court should not pass on constitutional questions

unless such adjudication is unavoidable. Jean v. Nelson, supra;

Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105 (1944).

Here, Petitioners’ constitutional claims should not be reached _

becatse their action stands dismissed on statute of limitations

and waiver grounds— independent grounds for dismissal which

Petitioners do not question in this Court.

Also relevant here is the well settled practice of this Court

not to review a question of federal law decided by a state court

where the state court decision rests on a state law ground that is

independent of the federal question and adequate to support the

judgment. Lambrix v. Singletary, 520 U.S. 518, 522-23 (1997).

Here, the decision of the Court of Appeals to affirm the judgment

dismissing Petiticners’ action rests on a ground (statute of

limitations) that is independent of the constitutional questions

and more than adequate to support the judgment.

14

Il. The Second Circuit’s Summary Order Does Not Create

Any “Constitutional Immunity”, Does Not Have Any

Precedential Value, And Does Not Give Cause To Re-

Examine Kelo v. City Of New London

Petitioners contend that the Second Circuit interpreted Kelo

v. City of New London, supra, to mean that any use of eminent

domain within a blighted, urban renewal district is constitutional,

as a matter of law. (Pet. at 8). This is not so. The Second Circuit

stated only that, even if Petitioners’ claims were not time-barred,

“to the extent that they assert that the Takings Clause prevents

the State from condemning their property for a private use within

a redevelopment district, regardless of whether they have been

provided with just compensation, ... [Ke/o] obligates us to

conclude that they have articulated no basis upon which relief

can be granted.” (Pet. App. at 3-4) (emphasis added). As is

evident, the Second Circuit did not hold that all Takings Clause

challenges are precluded; it merely held that Petitioners had

failed to set forth a viable challenge under the facts presented.°

That the Second Circuit limited its holding to this particular

case is apparent from its use of a summary order. Under the

rules of that Court, summary orders are used where the decision

is unanimous and the panel believes that no jurisprudential

purpose would be served by a written opinion. While the court

may append a brief written statement explaining the basis for

its decision in its summary order, these statements do not

constitute formal opinions, are unreported, and are not be cited

5. The Second Circuit’s statement was a direct response to

Petitioners’ complaint in their main brief to that Court that the District

Court “did not rule on the merits of Plaintiffs’ claim that condemnation

was undertaken solely for a private purpose in violation of the Public

Use Clause of the Fifth Amendment”. (Br. at 13).

15

in unrelated cases before the Second Circuit or any other court.

(Second Circuit Local Rule 0.23).°

While Petitioners contend that the issues presented are of

“broad impact” and that if the Second Circuit’s interpretation

stands, it will effectively insulate condemnations in redevelopment

areas from judicial review, (Pet. at 10), Petitioners’ contentions

are without proper basis as the lower courts here decided just

this case and the Second Circuit’s summary order has no

precedential value. It is not even proper to cite it in any unrelated

case. Crocco v. Xerox Corp., 137 F.3d 105, 108 n.4 (2d Cir.

1998).

Nor would this case present a proper basis for re-

examination of Kelo. As the District Court found, in denying

Petitioners’ request for a preliminary injunction, Petitioners have

asserted “that they have no issue with the Redevelopment Project

itself or with Port Chester’s July 19, 1999 finding of public

use”. (Pet. App. at 52). The District Court noted that Petitioners

had “conceded, as they must, that the implementation of the

Redevelopment Project was for a public purpose. . .” (Pet. App.

at 53). Petitioners, recognizing that a challenge to the Village’s

1999 Determination and Findings was futile, had shifted their

focus to the claim that, because the LADA had given G&S the

6. The Second Circuit is presently contemplating a change to its

rules which would permit citation to summary orders issued after January

1, 2007. However, the proposed rule would continue to bar citation of

summary orders, such as the one here, rendered before January 1, 2007.

The summary order in this case contains a legend, required by the Second

Circuit’s rules, stating: “THIS SUMMARY ORDER WILL NOT BE

PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE

CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF

THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF

THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR

PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.”

16

right to request the Village to pursue condemnation’, the LADA

had given the developer a “club” to use against Petitioners in

negotiations. (/d.). However, this has nothing to do with the

public purpose finding, or with Kelo.

The Village’s public purpose in authorizing condemnation

of the private property within the MUR District was “the

clearance and reconstruction of certain blighted, substandard

and unsanitary areas of the Village”, as well as to improve the

public access to the waterfront, protect and encourage water-

dependent uses, and remediate environmental problems.

(Am. Compl. Ex. 3 at Ex. A).

In Berman v. Parker, 348 U.S. 26 (1954), this Court held

that the use of eminent domain in connection with the

7. The Village could have refused to proceed with condemnation;

however, doing so could have exposed the Village to a contract damage

case brought by G&S. This is not any different from the situation where

governmental entity enters into a lease or other financial transaction.

The legislative branch could choose not to budget the funds to pay the

obligation but, if the funds are not provided, the government may be

held liable for damages. See, e.g., U.S. v. Winstar Corp., 518 U.S. 839,

870 (1996) (passage of FIRREA, which raised core capital requirements

for thrifts and prohibited treatment of supervisory goodwill as an asset,

breached thrifts’ contracts with the FHLBB and FSLIC to permit thrifts

to treat supervisory goodwill as an asset for reguiatory capital purposes);

Centex Corp. v. U.S., 395 F.3d 1283, 1311 (Fed. Cir. 1997) (passage of

legislation which was designed specifically to allow the government to

re-appropriate the profits that plaintiffs expected to obtain from a

transaction, abrogated the government’s obligations under the contract);

cf. Mobil Oil Exploration & Producing Southeast, Inc. v. U.S., 530 U.S.

604, 620-21 (2000) (breach by United States of lease contracts granting

oil companies rights to explore and develop oil was substantial, deprived

the companies of the benefit of the:r bargain, and amounted to a

repudiation of their contracts); U.S. v. Spearin, 248 U.S. 132, 138 (1918)

(“When the government annulled the contract without justification, it

became liable for damages.”’).

17

elimination of blight was a constitutionally valid public purpose,

notwithstanding that the petitioner’s property was not blighted

and notwithstanding that petitioner’s property would be put into

other private hands. Here, that Port Chester’s downtown and

waterfront area was blighted is not disputed. The government

having legitimately found the area blighted, the manner of the

drawing of the boundary line is not justiciable. /d. at 35-36.

Kelo did not involve a blight-based condemnation and eight

of the Justices expressly reaffirmed the continued viability of

Berman v. Parker*, as well as that of Hawaii Housing Auth. v.

Midkiff, 467 U.S. 229 (1984).

The majority opinion of Justice Stevens (reflecting the

views of five Justices) reflected the Court’s endorsement in

Berman of “the purpose of transforming a blighted area into ‘a

well-balanced’ community through redevelopment.” Kelo, 125

S. Ct. at 2665. The majority was also well aware that, in both

Berman and Kelo, the private developers were required by

contract to use the property to carry out the redevelopment plan,

id. at 2666 n.15, as is the case here.

In her Kelo dissent, Justice O’Connor, joined by two other

Justices, agreed that the holding in Berman was “true to the

principle underlying the Public Use Clause”. /d. at 2674. In

particular, Justice O’Connor recognized that underlying Berman

was a legislative finding that eliminating the existing property

8. While some states have recently, as a matter of policy,

reconsidered the traditionally broad definition given public purpose,

the use of eminent domain for blight removal has not been seriously

questioned. In County of Wayne v. Hathcock, 471 Mich. 446, 475-76;

684 N.W.2d 765, 783 (2004) while the Michigan Supreme Court

announced that it would no longer treat a generalized economic benefit

as being a sufficient basis to transfer condemned property to a private

entity, it specifically reaffirmed the selection of land for condemnation

on the basis of the need to remedy urban blight.

18

use was necessary to remedy the harm. “Thus a public purpose

was realized when the harmful use was eliminated.” /d. Because

the taking directly achieved a benefit, it did not matter that the

property was turned over to a private use. /d.

Here, in Port Chester, the public purpose was blight

removal; that purpose was achieved by the elimination of the

blighted areas, no matter what was done with the property

thereafter and even if some property within the district was not

itself blighted. Justice O’Connor’s dissent in Kelo objected to

the condemnation there because there was no claim that any of

the property to be condemned was itself the source of any social

harm. /d. at 2675. Her concern is not implicated here because

of the undisputed finding that the project’s purpose was blight

removal.

Of the nine Justices who heard Kelo, only Justice Thomas

questioned the continued viability of the Berman precedent.

Id. at 2685.

Petitioners, while relying upon Justice Kennedy’s Kelo

concurrence, have nevertheless persisted in “making the

incorrect assumption that review under Berman and Midkiff

imposes no meaningful judicial limits on the governrent’s

power to condemn any property it likes.” Jd. at 2670 (Kennedy,

J., concurring). In seeking review of this case, Petitioners claim

that Ke/o creates an immunity from judicial review for urban

renewal plans. That Petitioners could not succeed in their

challenge — in large measure due to their own concession that

the July, 1999 Determination and Findings were valid — does

_ not mean that other petitioners could not succeed in other cases.

Moreover, Petitioners gloss over the significance of the term

“redevelopment plan” when they contend that, under the Second

Circuit’s view, “there can be no judicial review of takings within

the area, for as long as the redevelopment designation lasts”.

19

(Pet. at 13). Much depends upon the purpose of the

redevelopment. The plan in question here is an urban renewal,

blight-removal plan, not simply a plan for economic betterment.

Kelo indicates that at least eight Justices continue to agree that

blight removal is a constitutionally permitted purpose.

Petitioners also do not define the type of challenges that

they would wish to bring with respect to takings within an urban

renewal area. Of significance, the thrust of Petitioners’ challenge

all along has been their desire to have the properties that. are

_included within the project area carved out of the project. But,

as the Second Circuit recognized, that issue is not justiciable, at

least in the federal courts. (Pet. App. at 4). It has always been

without question that the issue of the quantity and location of

the property to be condemned is purely political and “not the

subject of judicial inquiry”. Rindge Co. v. County of Los Angeles,

262 U.S. 700, 709 (1923); see Berman, 348 U.S. at 35-36 (“It is

not for the courts to oversee the choice of the boundary line nor

to sit in review on the size of a particular project area. Once the

question of the public purpose has been decided, the amount

and character of land to be taken for the project and the need for

a particular tract to complete the integrated plan rests in the

discretion of the legislative branch.”); Arlington v. Golddust

Twins Realty Corp., 41 F.3d 960, 963-64 (5" Cir. 1994)

(necessity and expediency of exercising condemnation power,

and the extent of the appropriation, “are political or legislative,

and not judicial, questions, the legislative determination of

which is conclusive, and not reviewable by the courts). As

articulated in Rosenthal & Rosenthal Inc. v. New York State

Urban Dev. Corp., 605 F. Supp. 612, 618 (S.D.N.Y. 1985),

affirmed, 771 F.2d 44 (2d Cir:), cert. denied, 475 U.S. 1018

(1985),

[o}]nce a legitimate public purpose for the overall

project is conceded . . . the court cannot get involved

20

‘in parsing the particular degree of public or private

motivation behind the inclusion of a particular site

in the Project area, so long as that inclusion could

rationally be related to the public purpose of the plan

as a whole.

Petitioners have not contended that the inclusion of some (but

not all) of their properties in the urban renewal project area was

irrational.

Ill. Petitioners’ Exaction Argument Was Not Properly Pled

While Petitioners seek to have this Court consider their

claim that the developer’s alleged demand for cash to relinquish

its contractual right to request the Village to condemn their

property was improper, Petitioners did not adequately present

this claim in their Amended Complaint. That Complaint

contained six claims:

a) in the First Claim, Petitioners asserted that they have

been deprived of “their privileges, rights and immunities” under

the Constitution, including a right “not to be deprived of their

property without due process of Jaw or by governmental actions

that are unrelated to any legitimate governmental interest.” (Am.

Compl., §9]74,75).

b) in the Second Claim, Petitioners allege they have the

right “secured by the Takings Clause of the Fifth Amendment

to the United States Constitution, not to have their property

taken by the State through the power of eminent domain for a

private use, regardless of whether just compensation is given.”

(Id. 4|78);

c) in the Third Claim, Petitioners charge that Respondents’

“abuse of the condemnation powers is so outrageously arbitrary,

capricious, and irrational as to constitute a gross abuse of

governmental authority which has violated [Petitioners’ |

21

substantive due process rights under the Fourteenth Amendment

to the United States Constitution”. (/d. 482);

d) in the Fourth Claim, Petitioners argue that they have

been denied equal protection of the laws, alleging that Petitioners

have been intentionally “singled out” for “disparate, unlawful

and malicious treatment.” (/d. 985);

e) in the Fifth Claim, Petitioners allege that the Village

delegated its eminent domain power to G&S and Gregg Wasser

(“Wasser”) and that the condemnation proceeding sought to

acquire their properties for a “purely private purpose”. (/d., 488);

f) The Sixth Claim for Relief contains no substantive

allegations but simply asserts a claim for injunctive relief. (/d.).

As is apparent, none of the pled claims presented a claim

of unconstitutional exaction, an argument that surfaced only in

the opposition to the motion to dismiss, thus explaining the

District Court’s characterization of the argument as “new”.

(Pet. App. at 11).

Even assuming Petitioners’ exaction claim is not beyond

review, Petitioners’ claim siili fails. Petitioners have premised

their claim upon 42 U.S.C. § 1983. However, section 1983

provides a remedy and dees not by itself create any substantive

rights. Wilson v. Garcia, #7! U.S. 261, 278 (1985). To state a

cause of action under Section 1983, Petitioners must allege that

some person has deprived them of a federal right acting under

color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980).

In order for private parties, such as G&S, to be held liable

under Section 1983, it must be shown that such private r ities

were willing participants in joint activity with the state actors.

Ginsberg v. Healy Car & Truck Leasing, Inc., 189 F.3d 268,

271 (2d Cir. 1999); Annunizato v. The Gan, Inc., 744 F.2d 244,

249 (2d Cir. 1984). The complaint must allege, with some

22

particularity, overt acts of the private defendants which were

jointly undertaken with the state actors or reasonably related to

a conspiracy with state actors. E/marsi v. England, 111 F. Supp.

2d 212, 217-218 (E.D.N.Y. 2000), citing Fariello v. Rodriquez,

148 F.R.D. 670, 677 (E.D.N.Y. 1993), aff'd, 22 F.3d 1090 (2d

Cir. 1994).

According to the Amended Complaint, the only acts

allegedly committed by G&S and Wasser in the three years prior

to suit are their attendance, at the “direction of” the Village, at a

settlement meeting on November 5, 2003. At this meeting,

Wasser allegedly demanded $800,000 or else he would cause

the Village to commence condemnation proceedings against the

properties owned by Petitioners within the MUR District. (Am.

Compl. 448). Wasser is also said to have alternatively demanded

a partnership interest in the CVS Project. (/d.). Wasser allegedly

based his $800,000 demand upon his estimate that the profit on

the CVS Project was worth $2,000,000. (Jd. at 49). Shortly after

Petitioners rejected Wasser’s alleged proposals, condemnation

proceedings were brought. (/d. at 50).

There is no allegation that the Village had any

foreknowledge of Wasser’s proposal, much less that the Village

joined in it or was willing to support it, even though the Village’s

approval would be necessary to change the boundaries of the

MUR District and to amend the LADA so to eliminate G&S’

obligation to develop this part of the project. As Petitioners were

well aware in 1999 (Pet. App at 26), such changes required a

vote of the elected Village Board of Trustees.

While Petitioners point to their general allegation that G&S

engaged in an “unlawful course of conduct with the actual

knowledge or approval of” the Village (Pet. at 5 n.3), this does

not satisfy the requirement that, to make out a case against a

private party under Section 1983, the complaint must allege

particular acts which are claimed to have been jointly undertaken

23

with the state actors. While the Amended Complaint alleges

that G&S made a demand, it does not allege that governmental

representatives were present and, if so, whether they concurred,

and, if not, whether they later concurred.

Further, Petitioners’ attempt to characterize G&S’ settlement

proposals as a payment to avoid condemnation is belied by the

provisions of the LADA. Under the LADA, G&S had the right

to develop all of the property in the MUR District, a right that it

had obtained by making the winning proposal to the Village

(Am. Compl. Ex. | at 2). [t had both the right and the

responsibility to acquire (and pay for) title to all of the property

in the MUR District. (/d. at 11). Failure to do so could constitute

a default, giving rise to actions by the Village against G&S. (/d.

at 51). G&S had a concomitant responsibility under the LADA

to undertake the development in accordance with the approved

-plans, including the responsibility to develop and construct the

required public improvements. (/d. at 37). Thus, even if Wasser

did offer to forego G&S’ right to ask the Village to condemn

Petitioners’ property, he was offering to relinquish a legal right

he had under the LADA. Petitioners have not here suggested

that there is anything wrong with a private party asking for

compensation to relinquish a legal right, particularly where doing

so would have exposed him to liability (i.e., the Village’s right

to sue G&S for failing to develop alt of the District) .

As the District Court found beiow (Pet. App. at 14), state

law does not require the condemnor to negotiate with a private

property owner in good faith prior to seeking to acquire title to

the property. Thus, the Village did not have any obligation to

negotiate with Petitioners and G&S and Wasser, non-parties to

the condemnation proceeding, also had no obligation to negotiate

with Petitioners. That the Village, G&S and Wasser did meet

with Petitioners and conveyed a proposal that Petitioners found

unacceptable does not give them any substantive claims.

24

A failure to acquire the Petitioners’ properties would have

had ramifications on the Village as well. The redevelopment of

Port Chester had been contemplated for over twenty years, and

the Village wanted to complete the project. Prior to the issuance

of the Determination and Findings, Petitioners were unable to

convince CVS to develop their properties. (Pet. App. at 24-25).

That being said, taking Petitioners’ properties out of the MUR

would not fulfill the Village’s goal of eliminating a blighted

area. Finally, since Petitioners allege that they rejected the offer

(Am. Compl. At 948), Petitioners have not articulated any basis

for damages. Printers II, Inc. v. Prof ’ls Pub'g, Inc., 784 F.2d

141, 148 (2d Cir. 1986).

Petitioners’ claim is in reality a collateral attack against the

pubiic use determination. The Village issued its Determination

and Findings, which included its public use determination, in

July 1999. Petitioners did not challenge the Determination and

Findings. The fact that G&S had both the right and the

responsibility to acquire (and pay for) title to all of the property

in the MUR District does not convert the use from public to

private. Moreover, once the public use determination was made,

the fact that condemned properties were turned over to a

developer to effectuate the public use, does not convert that use

to a private one. See Berman, 348 U.S. at 35-36 (“Once the

question of the public purpose has been decided, the amount

and character of land to be taken for the project and the need for

a particular tract to complete the integrated plan rests in the

discretion of the legislative branch.”’).

[V. Petitioners’ Ceastitutional Exactions Argument

Presents No Compelling Reason To Grant The Petition

In any event, Petitioners’ theory that Respondents’ conduct

is actionable under Nollan v. Cal. Coastal Comm’n, 483 U.S.

825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1974)

does not present any compelling reason for granting the writ.

25

While Petitioners maintain that since Do/an this Court has only \

discussed the exactions doctrine in dicta (Pet. at 22), any

discussion of the exactions doctrine in the context of this case

would likewise be dicta: first, because the case has been

dismissed as untimely, and second, because the exactions

doctrine is not implicated in this matter.

The law permits governmental e’. ties to impose conditions

upon land use applications provided 1ere is an essential nexus

between the harm to be avoided ar 1 the condition. in No/lan,

supra, the applicant sought a permit to demolish a seaside home

and rebuild and the government conditioned the permit on the

granting of an easement for public beach access. In Dolan, supra,

the muuicspality required the land owner to dedicate a portion

of his property sought to be developed to a storm drainage system

and for a pedestrian/bicycle pathway as a condition for a building

permit.

As the District Court properly recognized, Petitioners did

not have any conditions placed upon the use of their property

while they were in ownership. (Pet. App. at 11). Further, unlike

the situations in No//an and Dolan, here is no allegation that

the duly authorized governmental officials imposed any

conditions through an officially sanctioned communication or

resolution.

Based on the facts set forth in the Amended Complaint,

there was a pre-existing 1999 finding of public purpose for

condemnation that went unchallenged by Petitioners, (Am.

Compl. 431), even though they received notice of the hearings

(/d.) and knew that some of their property was located within

the zone. (Pet. App. at 24-27). All that Petitioners claim is that

the Village refused to process their application to re-zone their

property so as to remove it from the project area. (Am. Compl.

453-54). However, since there was a valid, unchallenged public

- purpose finding, Petitioners had no substantive nght to demand

a cenciuiammgpmniansimiiseimannesinnmanesiin

26

that their property be excluded from the urban renewal area,

particularly where Petitioners have never claimed that the

inclusion of some of their properties within the urban renewal

area was irrational.

CONCLUSION

Petitioners have not established any compelling reasons for

this Court to grant the Petition. Therefore, Respondents

respectfully request that the Petition be denied.

Respectfully submitted,

ALAN D. SCHEINKMAN

Counsel of Record

DELBELLO DONNELLAN

WEINGARTEN TARTAGLIA

Wise & WieDERKEHR, LLP

MattHew S. CLIFFORD

One North Lexington Avenue

White Plains, NY 10601

(914) 681-0200

Mark S. TUuLIs

OXMAN, TULIS, KIRKPATRICK,

Wuyatt & GEIGER, LLP

120 Bloomingdale Road

White Piains, NY 10605

(914) 422-3900

JOHN E. WATKINS, JR.

WarkINs & Warkins, L.L.?

175 Main Street

White Plains, NY 10601

(914) 428-1292

Counsel for Respondents

-Vititiibin—~ithiine;w-~ueee.