property a slides 2-19-15. thursday feb 19 music: michael bublé, it’s time (2005) lunch today:...

PROPERTY A SLIDES2-19-15

Thursday Feb 19 Music: Michael Bublé, It’s Time (2005)

Lunch Today: Meet on Brix @ 11:55Ayoub; Duke; Esmaili; Garcia; Kaleel

Pecorella; Rodriguez; Usman

Arches Reminder: Arches Reminder: Critique of Rev. Prob. 2B Due Today @ 10amCritique of Rev. Prob. 2B Due Today @ 10am

Chapter 2: The Eminent Domain Power Chapter 2: The Eminent Domain Power & the Public Use Requirement& the Public Use Requirement

• Federal Constitutional Background• State Public Use Standards

• Kelo & BeyondKelo & Beyond• Kelo Majority & Kennedy Concurrence• Facts of Kelo & Application of Earlier Tests• Legal Analysis

• Application to Poletown

• Review Problem2D

• Kelo Dissents & Merrill• Review Problem 2G

Facts of KeloResponse to Run-Down Area/Econ. Difficulties in

New London

•Project = Multi-Use Integrated Economic Development

1. Incorporates Office Space, Residences, Retail, Parking, Park, Museum, Marina, Hotel/Conference Center

2. Next to Pfizer Site, but Pfizer not Part of Project (cf. Poletown)

Facts of KeloResponse to Run-Down Area/Econ. Difficulties in

New London

•Plaintiffs = Homeowners Whose Lots are not Blighted

1. Under plan, becoming retail, office or parking

2. Primary claim is that shouldn’t be able to transfer from 1 private party to another if only purpose is to achieve economic development

BISCAYNE: DQ2.12

SUNRISE AT ADAMS KEY

DQ2.12(a) (Biscayne)Legal Treatment of New London Project under

Midkiff

•Purpose?• Legitimate (Tie to HSWM)•Project Rationally Related to Purpose?

DQ2.12(a) (Biscayne)Legal Treatment of New London Project under

Midkiff

•Purpose?• Legitimate (Tie to HSWM)•Project Rationally Related to Purpose?

Easy case under Easy case under Midkiff (Midkiff (as are virtually all conceivable as are virtually all conceivable economic development cases).economic development cases).

DQ2.12(b) (Biscayne)Legal Treatment of New London Project under

Poletown TestsI’ll leave specifics for you, BUT•New London probably a strong case to satisfy the tests b/c: • Great size & scope of project• Serious economic problems• Comprehensive planning

•Kennedy references “Primary Beneficiary” test, so he presumably thinks Kelo facts meet test

DQ2.12(c) (Biscayne)Legal Treatment of New London Project under

Hatchcock1.Public Necessity: Project is important & only

way to do project is through Eminent Domain?

2. Accountability: Private entity remains responsible to public for its use

3. Selection: Particular parcel(s) chosen based on facts of independent public significance.


Hatchcock1. Public Necessity: Project is important & only way

to do project is through Eminent Domain• Importance of Project easy to defend• Only Way to Do?• Hard to assemble Project this big w/o EmDom unless it could

work with gaps. • P172: Case says most of land already purchased directly so

EmDom is being used only for “unwilling owners.”• BUT: Hatchcock itself addressed a 1300-acre site and court

said didn’t meet test. [Maybe OK to have gaps in industrial park?]


Hatchcock1. Public Necessity: Project is important & only way to do project

is through Eminent Domain

2. Accountability: Private entity remains responsible to public for its use. No evidence of this in case; seems unlikely.

3. Selection: Particular parcel(s) chosen based on facts of independent public significance?


Hatchcock1. Public Necessity: Project is important & only way to do

project is through Eminent Domain2. Accountability: Private entity remains responsible to

public for its use.

3. Selection: Particular parcel(s) chosen based on facts of independent public significance?• OCR says not.

• A lot of land in Q wasn’t blighted and was chosen simply to put to a better economic use.


• Federal Constitutional Background• State Public Use Standards

• Kelo & BeyondKelo & Beyond• Kelo Majority & Kennedy Concurrence

• Facts of Kelo & Application of Earlier Tests

• Legal Analysis• Application to Poletown



Federal “Public Use” Standards: Kelo Recap: MIDKIFF KELO

•Midkiff decided in 1984• Rational Basis = Test for “Public Use” in 5th Amdt

•Means “Public Use” Provides Almost no Limit on Eminent Domain

•However, not very controversial at time

•Kelo decided in 2005:• As noted, US more conservative & more concerned w Property Rts

•USSCt very different than in 1984

US SCt 1984 2005& Introduction to US SCt Abbreviations

• Burger, CJ (1969) (BGR)* Rehnquist CJ (1986) (RNQ)* • Rehnquist (1972) (RNQ)* Scalia (1986) (SCA)*• Powell (1972) (PWL)* Kennedy (1988) (KND)*• Brennan (1956) (BNN)* Souter (1990) (SOU)*• Marshall (1965) (MSH) Thomas (1991) (THS)*• White (1962) (WHT) Ginsberg (1993) (GIN)• Blackmun (1970) (BMN)* Breyer (1994) (BRY)• Stevens (1975) (STV)*• O’Connor (1981) (OCR)*

* = Appointed by Republican President

Federal “Public Use” Standards: Kelo Recap: MIDKIFF KELO

•Kelo essentially brought by Conservative NGOs [Non-Governmental Organizations] Focused on Property Rights

•NGOs represented homeowners (who can’t otherwise afford to take case to US SCt)

•Hoped that change in Justices & American politics would lead USSCt to overrule or limit Midkiff

Federal “Public Use” Standards:Kelo Majority Opinion

NARROW HOLDING•Upholds Specific New London Development Plan

•Rejects Plaintiffs’ Claim that There Should Be Blanket Exception to Public Use Deference when EmDom Used for Economic Development

•Rest is Dicta (Dicta, Schmicta)

Federal “Public Use” Standards:Kelo Majority Opinion

Largely Reiterates Points from Earlier Cases•Reaffirms Berman and Midkiff

•“Public Use” just means Public Purpose (P175)

• Assess plan as a whole; don’t look at individual parcels

• Ending up in private hands not bar to “Public Use”

• Private Ownership may be good way to accomplish public goals (P178)

• Actual use by public (e.g., RR) constitutes Public Use, but not required

Federal “Public Use” Standards: Kelo Majority Opinion

DQ2.13 & DeferenceKelo Kelo majority gives legislatures “broad latitude in determining majority gives legislatures “broad latitude in determining

what public needs justify the use of the takings power.”what public needs justify the use of the takings power.”•Arguments we’ve seen supporting deference Arguments we’ve seen supporting deference include:include:• Democratic Theory• Institutional Competence (See OCR P181-82: courts ill-equipped to evaluate efficiency of programs or necessity of using EmDom)• Federalism/Local Control: States can choose to have stricter rules if they want/need to better control their own municipalities (P178; see also Federalism Discussion on P176-77)


DQ2.13 & DeferenceKelo Kelo majority gives legislatures “broad latitude in determining majority gives legislatures “broad latitude in determining

what public needs justify the use of the takings power.”what public needs justify the use of the takings power.”

•Dangers/concerns re broad deference include:Dangers/concerns re broad deference include:• Corruption• Power of $$$/Lobbyists/Special Interests/Politically Connected• Arguably Renders Public Use Clause Meaningless• OCR Dissent: “Hortatory Fluff”; Redundant w Due Process

Clause

• THS Dissent: “Nullity”

Federal “Public Use” Standards: KeloDQ2.14: Limits on Deference

Kelo Kelo majority gives legislatures “broad latitude in determining majority gives legislatures “broad latitude in determining what public needs justify the use of the takings power.”what public needs justify the use of the takings power.”

•Today:Today: I’ll go through limits suggested by Majority and by Justice Kennedy, then show how they might apply to facts of Poletown.

•Tomorrow: Analysis for Rev. Prob. 2D (BISCAYNE):Tomorrow: Analysis for Rev. Prob. 2D (BISCAYNE):• Identify Facts that Majority or Kennedy Might Say Suggest

Rational Basis Inappropriate• Discuss Whether, Overall, Enough Reasons for Concern to Forego

Deference/Rational Basis

Federal “Public Use” Standards: Kelo Majority OpinionDQ2.14: Limits on Deference

• If If solesole purpose is private benefit, not OK (P174) purpose is private benefit, not OK (P174)• BUT OCR: Complicated determination; hard to tell (P182)

• Transfer from one citizen to another of one parcel b/c Transfer from one citizen to another of one parcel b/c latter will put to more productive use: suspicious if latter will put to more productive use: suspicious if outside of integrated development planoutside of integrated development plan (Middle para. P178)

• List of Helpful Facts List of Helpful Facts (P177) (maybe problematic if not there?):• State Statute authorizing Local Gov’ts to Use EmDom for Economic Development• Comprehensive Plan• Thorough Deliberation


DQ2.14: Limits on Deference

QUESTIONS ON MAJORITY OPINION?

Federal “Public Use” Standards: Kennedy Concurrence


Overview of Concurrence

•KND seems to suggest more serious examination than ordinary deference: “meaningful rational basis review.” (P179)

•Long discussion on P179-80 of possible considerations.

•BUT refuses to articulate a specific set of rules or procedures, and OCR chides him for lack of guidance for future cases (P182).


DQ2.14: Limits on Deference (Biscayne)

Why is Kennedy Concurrence Especially

Important?


DQ2.14: Limits on DeferenceKND’s Articulated Concerns/Limits

(1)(1)No deference if clear showing that EmDom intended to No deference if clear showing that EmDom intended to favor a particular private party w only incidental or pretextual favor a particular private party w only incidental or pretextual public benefit. (P179)public benefit. (P179)• Really arguing purpose is illegitimate b/c benefit to public is either:

• Incidental = Trivial OR

• Pretextual = False or Implausible

• Like primary beneficiary test looking at bothboth effects and purpose

• OCR argues that this test is not helpful because public and private benefits so intertwined in economic development cases (P183)



KND’s Articulated Concerns/Limits

(2) If plausible accusation of impermissible (2) If plausible accusation of impermissible favoritism:favoritism:• Close review of record required• Although presumption that govt acted reasonably remains

•Triggers O’Connor’s “stupid staffer” comment; she means savvy officials can manage/manipulate record to hide problems.



•(3) Might be Might be private transfers where risk of favoritism so high, need presumption of invalidity

• As opposed to (2), where he says even plausible accusation of favoritism doesn’t create this presumption.

• No specific examples given!!No specific examples given!!

• He follows this statement with list of facts on P180 that are protections ag. “favoritism”; if some or all of these are missing, could argue “presumption of invalidity” should apply.



•(4) Facts constituting protections against (4) Facts constituting protections against favoritism (P180)favoritism (P180)

a. Comprehensive plan

b. Serious city-wide economic crisis

c. Real economic benefit

d. Identity of beneficiaries mostly unknown (like Midkiff)

e. Elaborate procedures to produce reviewable record



•No deference if clear showing that ED intended to benefit particular private party w only incidental or pretextual public benefit.•Close review of record if plausible assertion of favoritism•Private transfers where risk of favoritism so high, presume invalidity •Facts from Kelo constituting protections

a. Comprehensive planb. Serious city-wide economic crisisc. Real economic benefitd. Identity of beneficiaries mostly unknown (like Midkiff)e. Elaborate procedures to produce reviewable record

Qs on Concurrence?


• Federal Constitutional Background• State Public Use Standards• Kelo & BeyondKelo & Beyond• Kelo Majority & Kennedy Concurrence

• Facts of Kelo & Application of Earlier Tests

• Legal Analysis

• Application to Poletown (Setting Up Rev Prob 2D for Tomorrow)



Federal “Public Use” Standards:Limits on Deference Applied to Facts of Poletown

Majority’s Articulated Concerns/Limits

•If sole purpose is private benefit, not OK: PP•Transfer from one citizen to another of one parcel b/c latter will put to more productive use: suspicious if

outside of integrated development plan: PP •List of Helpful Facts (maybe problematic if not there):

• State Statute authorizing EmDom for econ. development: PP• Comprehensive Plan & Thorough Deliberation: PP



•No deference if clear showing that ED intended to benefit particular private party w only incidental or pretextual public benefit. PP •Close review of record if plausible assertion of

favoritism PP •Risk of favoritism so high, presume invalidity:

PP??? ???



•Facts from Facts from Kelo Kelo constituting protections (P180)constituting protections (P180)a. Comprehensive plan: Not PNot P

b. Serious city-wide economic crisis: P P

c. Real economic benefit: P P

d. Identity of beneficiaries mostly unknown (like Midkiff): Not PNot P

e. Elaborate procedures to produce reviewable record: UnclearUnclear

Federal “Public Use” Standards:Limits on Deference Applied to Facts of Poletownm

Hard Q re Poletown: Is acceding to GM’s specific demands

“favoritism” or sensible way to achieve big economic benefit?

Chapter 3 Materials Posted on Course Page• Supplemental Material (Whole Chapter)• Updated Syllabus• Updated Assignment Sheet •Updated List of Available Sample Exam Qs for Me to Review

•I’ll Lecture Through Chapter I’ll Lecture Through Chapter Intro Tomorrow; You Can Skim Intro Tomorrow; You Can Skim Assigned Readings for NowAssigned Readings for Now


•Federal Constitutional Background

•State Public Use StandardsState Public Use Standards• Poletown

•Hatchcock

•Review Problems 2B & 2C

•Kelo & Beyond

Review Problem 2CReview Problem 2CRedwood (Landowners) Redwood (Landowners) v. Arches (City) v. Arches (City)

• VH is a run-down neighborhood in city of Kirkland. • Almost all the buildings in VH contain functioning businesses and residences• BUT highest rate of prostitution and drug-related crime in the city. • City would like to open a drug rehab center in VH, but cannot afford to do so.

• Between DF Sessions, David runs chain of pvt drug rehab centers. • D tried unsuccessfully for several years to buy land in VH to open a center.


• D proposed that city use EmDom to buy an appropriate lot in VH:• Then resell lot to D (at fair market value) • D would use lot to open one of his rehab centers. • He suggested six possible sites (twelve square city blocks each).

• The city agreed to the proposal; chose the suggested site …• furthest from any school • and that had the highest crime rate.

Discuss Application of Discuss Application of HatchcockHatchcock Criteria to These Facts Criteria to These Facts

Critique of Review Problem 2C Critique of Review Problem 2C (Shenandoah) (Shenandoah)

• See General Instructions @ Bottom of Assignment Sheet• Paragraphs 1 & 2: Address Arguments Favoring the Landowners

(involving any of the three “Situations”)• Paragraphs 3 & 4: Address Arguments Favoring the City (involving

any of the three “Situations”)• Paragraph 5: Your Choice

•Written Submission Due by E-Mail Saturday 2/21 @ 10 a.m. • E-Mail me if Qs


Public NecessityPublic Necessity: : Project is important &

only way to do project is through EmDom?


AccountabilityAccountability: : Private entity remains responsible

to public for its use?


SelectionSelection: :

Particular parcel(s) chosen based on

facts of independent public significance?


1. Public Necessity: Project is important & only way to do project is through Eminent Domain?

2. Accountability: Private entity remains responsible to public for its use

3. Selection: Particular parcel(s) chosen based on facts of independent public significance.

Strongest “Situation” for City?

[I’ll Leave for You]

property a slides 2-19-15. thursday feb 19 music: michael bublé, it’s time (2005) lunch today:...

Documents

new londonproject

new londonplaintiffs

butnew london

hatchcockpublic necessity

eminent domainaccountability

eminent domain power

private entity

easy case