PROPERTY A SLIDES

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PROPERTY A SLIDES

• 2-19-15

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Thursday Feb 19 Music Michael Bublé, Its Time
(2005)

• Lunch Today Meet on Brix _at_ 1155
• Ayoub Duke Esmaili Garcia Kaleel
• Pecorella Rodriguez Usman
• Arches Reminder
• Critique of Rev. Prob. 2B Due Today _at_ 10am

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Chapter 2 The Eminent Domain Power the Public
Use Requirement

• Federal Constitutional Background
• State Public Use Standards
• Kelo 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

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Facts of Kelo

• Response 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)

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Facts of Kelo

• Response 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 shouldnt be able to
  transfer from 1 private party to another if only
  purpose is to achieve economic development

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BISCAYNE DQ2.12
SUNRISE AT ADAMS KEY
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DQ2.12(a) (Biscayne)Legal Treatment of New
London Project under Midkiff

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

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

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

• Ill 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

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

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.

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

• 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 didnt meet test. Maybe OK to
  have gaps in industrial park?

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

• Public Necessity Project is important only way
  to do project is through Eminent Domain
• Accountability Private entity remains
  responsible to public for its use. No evidence
  of this in case seems unlikely.
• Selection Particular parcel(s) chosen based on
  facts of independent public significance?

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

• Public Necessity Project is important only way
  to do project is through Eminent Domain
• Accountability Private entity remains
  responsible to public for its use.
• Selection Particular parcel(s) chosen based on
  facts of independent public significance?
• OCR says not.
• A lot of land in Q wasnt blighted and was chosen
  simply to put to a better economic use.

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Chapter 2 The Eminent Domain Power the Public
Use Requirement

• Federal Constitutional Background
• State Public Use Standards
• Kelo 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

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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

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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)
• OConnor (1981) (OCR)
• Appointed by Republican President

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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 cant otherwise
  afford to take case to US SCt)
• Hoped that change in Justices American politics
  would lead USSCt to overrule or limit Midkiff

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Federal Public Use StandardsKelo 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)

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Federal Public Use StandardsKelo Majority
Opinion

• Largely Reiterates Points from Earlier Cases
• Reaffirms Berman and Midkiff
• Public Use just means Public Purpose (P175)
• Assess plan as a whole dont 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

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Federal Public Use Standards Kelo Majority
OpinionDQ2.13 Deference

• Kelo majority gives legislatures broad latitude
  in determining what public needs justify the use
  of the takings power.
• Arguments weve seen supporting deference
  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)

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Federal Public Use Standards Kelo Majority
OpinionDQ2.13 Deference

• Kelo majority gives legislatures broad latitude
  in determining what public needs justify the use
  of the takings power.
• Dangers/concerns re broad deference include
• Corruption
• Power of /Lobbyists/Special Interests/Political
  ly Connected
• Arguably Renders Public Use Clause Meaningless
• OCR Dissent Hortatory Fluff Redundant w Due
  Process Clause
• THS Dissent Nullity

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Federal Public Use Standards KeloDQ2.14
Limits on Deference

• Kelo majority gives legislatures broad latitude
  in determining what public needs justify the use
  of the takings power.
• Today Ill 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)
• Identify Facts that Majority or Kennedy Might Say
  Suggest Rational Basis Inappropriate
• Discuss Whether, Overall, Enough Reasons for
  Concern to Forego Deference/Rational Basis

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

• If sole 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 latter will put to more productive
  use suspicious if outside of integrated
  development plan (Middle para. P178)
• List of Helpful Facts (P177) (maybe problematic
  if not there?)
• State Statute authorizing Local Govts to Use
  EmDom for Economic Development
• Comprehensive Plan
• Thorough Deliberation

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Federal Public Use Standards Kelo Majority
OpinionDQ2.14 Limits on Deference
QUESTIONS ON MAJORITY OPINION?
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Federal Public Use Standards Kennedy
ConcurrenceDQ2.14 Limits on Deference

• 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).

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Federal Public Use Standards Kennedy
ConcurrenceDQ2.14 Limits on Deference (Biscayne)

• Why is Kennedy Concurrence Especially Important?

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Federal Public Use Standards Kennedy
ConcurrenceDQ2.14 Limits on Deference

• KNDs Articulated Concerns/Limits
• No deference if clear showing that EmDom
  intended to favor a particular private party w
  only incidental or pretextual 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 both
  effects and purpose
• OCR argues that this test is not helpful because
  public and private benefits so intertwined in
  economic development cases (P183)

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Federal Public Use Standards Kennedy
ConcurrenceDQ2.14 Limits on Deference

• KNDs Articulated Concerns/Limits
• (2) If plausible accusation of impermissible
  favoritism
• Close review of record required
• Although presumption that govt acted reasonably
  remains
• Triggers OConnors stupid staffer comment she
  means savvy officials can manage/manipulate
  record to hide problems.

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Federal Public Use Standards Kennedy
ConcurrenceDQ2.14 Limits on Deference

• KNDs Articulated Concerns/Limits
• (3) 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 doesnt create this
  presumption.
• 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.

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Federal Public Use Standards Kennedy
ConcurrenceDQ2.14 Limits on Deference

• KNDs Articulated Concerns/Limits
• (4) Facts constituting protections against
  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

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Federal Public Use Standards Kennedy
ConcurrenceDQ2.14 Limits on Deference

• KNDs Articulated Concerns/Limits
• 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 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
• Qs on Concurrence?

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Chapter 2 The Eminent Domain Power the Public
Use Requirement

• Federal Constitutional Background
• State Public Use Standards
• Kelo Beyond
• Kelo Majority Kennedy Concurrence
• Facts of Kelo Application of Earlier Tests
• Legal Analysis
• Application to Poletown (Setting Up Rev Prob 2D
  for Tomorrow)
• Review Problem2D
• Kelo Dissents Merrill
• Review Problem 2G

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Federal Public Use StandardsLimits on
Deference Applied to Facts of Poletown

• Majoritys Articulated Concerns/Limits
• If sole purpose is private benefit, not OK P?
• 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 P?
• List of Helpful Facts (maybe problematic if not
  there)
• State Statute authorizing EmDom for econ.
  development P?
• Comprehensive Plan Thorough Deliberation P?

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Federal Public Use StandardsLimits on
Deference Applied to Facts of Poletown

• KNDs Articulated Concerns/Limits
• No deference if clear showing that ED intended to
  benefit particular private party w only
  incidental or pretextual public benefit. P?
• Close review of record if plausible assertion of
  favoritism P?
• Risk of favoritism so high, presume invalidity
  P????

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Federal Public Use StandardsLimits on
Deference Applied to Facts of Poletown

• KNDs Articulated Concerns/Limits
• Facts from Kelo constituting protections (P180)
• a. Comprehensive plan Not P
• b. Serious city-wide economic crisis P
• c. Real economic benefit P
• d. Identity of beneficiaries mostly unknown (like
  Midkiff) Not P
• e. Elaborate procedures to produce reviewable
  record Unclear

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Federal Public Use StandardsLimits on
Deference Applied to Facts of Poletownm

• Hard Q re Poletown
• Is acceding to GMs specific demands favoritism
  or sensible way to achieve big economic benefit?

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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
• Ill Lecture Through Chapter Intro Tomorrow You
  Can Skim Assigned Readings for Now

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Chapter 2 The Eminent Domain Power the Public
Use Requirement

• Federal Constitutional Background
• State Public Use Standards
• Poletown
• Hatchcock
• Review Problems 2B 2C
• Kelo Beyond

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Review Problem 2CRedwood (Landowners)
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.

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

• 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 Hatchcock Criteria to
  These Facts

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Critique of Review Problem 2C (Shenandoah)

• See General Instructions _at_ 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 _at_
  10 a.m.
• E-Mail me if Qs

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

• Public Necessity
• Project is important
• only way to do project is through EmDom?

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

• Accountability
• Private entity remains responsible
• to public for its use?

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

• Selection
• Particular parcel(s) chosen based on
• facts of independent public significance?

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

• Public Necessity Project is important only way
  to do project is through Eminent Domain?
• Accountability Private entity remains
  responsible to public for its use
• Selection Particular parcel(s) chosen based on
  facts of independent public significance.
• Strongest Situation for City?
• Ill Leave for You