Community redevelopment, public use, and eminent domain

Urban Lawyer

Volumn 37, Issue 2, 2005, Pages 201-241

  Salkin, Patricia E ^a   Lucero, Lora A ^b  

^a ALBANY LAW SCHOOL   (United States)

^b AICP   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

COMMUNITY DEVELOPMENT; DEVELOPMENT PROJECT; PUBLIC SERVICE;

NORTH AMERICA; UNITED STATES; WESTERN HEMISPHERE; WORLD;

EID: 21644466445     PISSN: 00420905     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (391)

1. U.S. Const. art V (The Fifth Amendment provides "... Nor shall private property be taken for public use without just compensation.");
2. see, e.g., Edward J. Sullivan & Nicholas Cropp, Sources of "Public Use" Limitations - Taking or Due Process?, 27 Zoning & Plan. L. Rep. 1 (2004).
3. Kelo v. City of New London, 843 A.2d 500 (Conn. 2004), cert. granted, 125 S. Ct. 27 (U.S. Sept. 28, 2004) (No. 04-108).
4. See Associated Press, Supreme Court Will Determine When Cities May Seize Private Land, Detroit Free Press, Sept. 28, 2004, available at http://www.freep.com/news/statewire/ sw104821_20040928.htm (last visited Feb. 17, 2005) ("The Supreme Court agreed Tuesday to decide when governments may seize people's homes and businesses for economic development projects, a key question as cash-strapped cities seek ways to generate tax revenue.");
5. see also Lyle Denniston, A New Look at Property Rights, and Other Issues, SCOTUSblog, Sept. 28, 2004, at http:// www.goldsteinhowe.com/blog/archive/2004_09_26_SCOTUSblog.cfm (last visited Mar. 3, 2005) (noting that "[s]uch private-to-private transfers have become almost commonplace across the Nation, as hard-pressed communities look for ways to create jobs, increase tax revenue and revitalize their economies . . .").
6. See Dana Berliner, Public Power, Private Gain, Institute for Justice (2003). Berliner's report contains a state-by-state analysis of laws dealing with condemnation for private business development. Id. The report can be downloaded in sections at http:// www.castlecoalition.org/report (last visited Feb. 18, 2005). Berliner's report indicates that the following states allow for condemnation for private business development: Connecticut, Kansas, Maryland, Michigan, Minnesota, New York, and North Dakota. According to Berliner's report, there have been more than 10,000 filed or threatened condemnations involving transfers of property from one private owner to another in forty-one states between 1998 and 2002. Id. at 2.
7. Id. The report can be downloaded in sections at http:// www.castlecoalition.org/report (last visited Feb. 18, 2005). Berliner's report indicates that the following states allow for condemnation for private business development: Connecticut, Kansas, Maryland, Michigan, Minnesota, New York, and North Dakota. According to Berliner's report, there have been more than 10,000 filed or threatened condemnations involving transfers of property from one private owner to another in forty-one states between 1998 and 2002. Id. at 2.
8. Id. at 2.
9. See Berliner, supra note 4. Berliner's report indicates that the following eight states prohibit condemnation for private business development: Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina, and Washington. Id.
10. N.W.2d 765 (Mich. 2004).
11. See Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981).
12. Hathcock overruled this case. See Hathcock, 684 NW.2d at 787.
13. Hathcock, 684 N.W.2d at 484.
14. Stephen Gross, The Rise and Fall of the Shops at West End 2 (May 9, 2004), at http://lkwdpl.org/currentevents/westend/gross.pdf (last visited Mar. 3, 2005).
15. I b i d.
16. Kelo v. City of New London, 843 A.2d 500 (Conn. 2004), cert. granted, 125 S. Ct. 27 (U.S. Sept. 28, 2004) (No. 04-108).
17. See American Planning Association, Policy Guide on Public Redevelopment (2004), available at http://www.planning.org/ policyguides/pdf/Redevelopment.pdf (last visited Feb. 17, 2004) [hereinafter APA Policy Guide]. The American Planning Association's Policy Guide on Public Redevelopment explains, "Public agencies believe that these partnerships present the most legitimate, effective and successful practices of implementing public objectives, public purpose, and public benefits." Id. at 4.
18. See 2A Nichols on Eminement Domain § 7.02[1] (J. Sackman ed., 3d ed. 2003). In fact, scholars point to the fact that there is no precise or fixed definition within the context of eminent domain.
19. 348 U.S. 26 (1954). The Court in Berman noted, "The public end may be as well or better served through an agency of private enterprise than through a department of government - or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects." Id. at 33-34.
20. Id. at 33-34.
21. 304 N.W.2d 455 (1981).
22. 467 U.S. 229 (1984). In this case, the Court stated, "where the exercise of the eminent domain power is rationally related to a conceivable public purpose, [this] Court has never held a compensated taking to be proscribed by the Public Use Clause." Id. at 241.
23. Id. at 241.
24. See Berman, 348 U.S. 26 (holding that condemnation was permissible in order to revitalize a blighted area in Washington D.C.);
25. Midkiff, 467 U.S. at 246 (holding that condemnation was necessary in order to remedy the "evils of concentrated property ownership in Hawaii").
26. Edward J. Sullivan & Nicholas Cropp, Sources of "Public Use" Limitations - Takings or Due Process?, 27 Zoning & Plan. L. Rep. 8 (2004).
27. I b i d.
28. I b i d.
29. But see Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 162 (Harvard Univ. Press 1985) (stating that "[a]t a minimum the public use requirement is a strict limitation upon the power of government to take private property.")
30. Sullivan & Cropp, supra note 18;
31. See Nichols on Eminent Domain, supra note 13, at § 7.01[1], 7.02[3] (Many courts have broadly construed the "public use" clause to include actions that "further the public good or general welfare.").
32. Berman, 348 U.S. at 28;
33. see also D.C. Code Ann. § § 5-701 to 5-719 (1951).
34. Id. at 28.
35. Id. at 29.
36. I b i d.
37. Id. at 29.
38. Berman, 348 U.S. at 30.
39. Id. at 30.
40. I b i d.
41. I b i d.
42. Id. at 30.
43. Berman, 348 U.S. at 31.
44. I b i d.
45. I b i d.
46. Id. at 35-36.
47. Id. at 36.
48. Midkiff, 467 U.S. at 231-32.
49. Haw. Rev. Stat. § § 516-1 to 516-9 (2003).
50. Midkiff, 467 U.S. at 232.
51. I b i d.
52. Id. at 233.
53. I b i d.
54. I b i d.
55. Midkiff, 467 U.S. at 234.
56. Id. at 244.
57. Id. at 243-44.
58. Id. at 242;
59. See Kelo, 843 A.2d at 578 (stating in the dissent that "under this more expansive interpretation of the term, the United States Supreme Court has held that the scope of eminent domain is 'coterminous with the scope of the sovereign's police powers.'"). that the scope of eminent domain is 'coterminous with the scope of the sovereign's police powers.'").
60. 339 N.W.2d 403 (Mich. 2004).
61. Poletown, 304 N.W.2d at 457.
62. I b i d.
63. I b i d.
64. I b i d.
65. I b i d.
66. Poletown, 304 N.W.2d at 458.
67. Id. at 459.
68. I b i d.
69. The American Planning Association is a nonprofit public interest and research organization representing more than 37,000 professional planners nationwide.
70. APA Policy Guide, supra note 12, at 2. The policy was precipitated by, among other things, the increasing complexity of redevelopment that now requires a large and complex team of financing specialists, underwriters, fiscal analysts, and others; the opportunity to redress issues of environmental justice; to avoid abuse and the perception of abuse of process; and to promote effective planning for redevelopment. Id. at 6-7.
71. Id. at 6-7.
72. Id. Noting that: Many communities have observed through experience that the private sector is most often more nimble, more, capable of making appropriate risk/reward decision, and, in general, more effective at being develops or redevelopers than is the public sector. At the same time, the use of the authority and power of the public to act in the best interest of the community may be, in some circumstances, the only means by which development or redevelopment may overcome market forces in a way that best promotes the larger public interest. Noting that: Many communities have observed through experience that the private sector is most often more nimble, more, capable of making appropriate risk/reward decision, and, in general, more effective at being develops or redevelopers than is the public sector. At the same time, the use of the authority and power of the public to act in the best interest of the community may be, in some circumstances, the only means by which development or redevelopment may overcome market forces in a way that best promotes the larger public interest.
73. Id. at 3-4.
74. Id. at 4. The policy further comments that these "public/ private partnerships are typically not recognized as a 'partnership' as defined by state laws governing incorporation and liability" and that their form and function varies widely, at times consisting of formal "written agreements that articulate the roles, responsibilities, liabilities and commitments, " and at other times a one-time arrangement where the government takes "action to assemble or prepare property in advance of desired private redevelopment activity."
75. I b i d.
76. Id. "The unique nature of community growth and development in the United States is a product of the balance between public rights and responsibilities and private property rights and motivations."
77. I b i d.
78. Paul Kengor, Pennsylvania: The Privatization State; Ed Rendell is Uniquely Placed to Bring About the Most Important Reform, Pittsburgh Post-Gazette, Jan. 17, 2003, at A15.
79. I b i d.
80. I b i d.
81. But see Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 Harv. L. Rev. 1229 (2003) (cautioning that these agreements may lead to the diminution of public accountability for services).
82. See Dave Saltonstall, Park Ads Plan a Sign of Tough Times, N.Y. Daily News, Feb. 15, 2002, at 20 (discussing New York City Mayor Bloomberg's plan to allow private companies to sponsor city parks).
83. See City Municipal Services, Inc., City Management Corporation, at http://www.path-way.com/marino/fmunicpl.html (last visited Feb. 17, 2005) (describing some of the contracts they handle for maintaining and repairing sewers, water mains, roads, snow removal and salting, garbage collection, recycling, and building demolition).
84. E.S. Savas, Privatization and the New Public Management, 28 Fordham Urb. L.J. 1731, 1734 (2001).
85. O. Casey Corr, The Subsidy Court - Mariner's Stadium Deal Example of Permissiveness with Public Funds, Seattle Times, Aug. 30, 1998, at B5.
86. Nick Beermann, Legal Mechanisms of Public-Private Partnerships: Promoting Economic Development or Benefiting Corporate Welfare?, 23 Seattle U. L. Rev. 175, 176(1999).
87. Id. at 177.
88. See Citizens for More Important Things v. King County, 932 P.2d 135 (Wash. 1997);
89. CLEAN v. State, 928 P.2d 1054 (Wash. 1996);
90. City of Tacoma v. Taxpayers of Tacoma, 743 P.2d 793 (Wash. 1987).
91. David Cho, Falls Church Schools Giving Builder Control; Partnership a Test of New State Law, Wash Post, Feb. 12, 2003, at B5.
92. Public-Private Education Facilities and Infrastructure Act of 2002, Va. Code Ann. § 56-575.16 (Michie 2004).
93. APA Policy Guide, supra note 12, at 7. Policy One states that "[r]edevelopment should also be recognized as a tool that local government can use to implement its comprehensive plan."
94. I b i d.
95. Id. at 8. Policy Two states that "[f]urthermore, the Guide asserts that state legislation should provide a means of choosing private partners that is "fair, open, equitable and transparent" and provide assurances that the public-private partnerships adhere to the adopted plans of the jurisdiction." Id. should provide a means of choosing private partners that is "fair, open, equitable and transparent" and provide assurances that the public-private partnerships adhere to the adopted plans of the jurisdiction."
96. I b i d.
97. Id. at 10. The following justification is offered in Policy Five: Redevelopment is an appropriate use of public resources to promote public purposes.... The correction of blighted conditions or preventive measures to forestall blight should be the primary motivating factors for the use of redevelopment powers where there are conditions that make it impossible for market forces to act in the public interest.... To the extent possible, communities should choose incentives as their primary redevelopment tool and rely on their eminent domain powers as a tool of last resort when incentives are insufficient to implement redevelopment plans. Redevelopment is an appropriate use of public resources to promote public purposes.... The correction of blighted conditions or preventive measures to forestall blight should be the primary motivating factors for the use of redevelopment powers where there are conditions that make it impossible for market forces to act in the public interest.... To the extent possible, communities should choose incentives as their primary redevelopment tool and rely on their eminent domain powers as a tool of last resort when incentives are insufficient to implement redevelopment plans. The correction of blighted conditions or preventive measures to forestall blight should be the primary motivating factors for the use of redevelopment powers where there are conditions that make it impossible for market forces to act in the public interest.... To the extent possible, communities should choose incentives as their primary redevelopment tool and rely on their eminent domain powers as a tool of last resort when incentives are insufficient to implement redevelopment plans.
98. I b i d.
99. County of Wayne v. Hathcock, 684 N.W.2d 765, 770 (Mich. 2004).
100. I b i d.
101. Id. at 770.
102. I b i d.
103. Id. According to expert testimony at trial, it was asserted that the project would create 30,000 jobs and add $350 million in tax revenue for the county. Id. at 771. create 30,000 jobs and add $350 million in tax revenue for the county. Id. at 771.
104. Id. at 771.
105. Hathcock, 684 N.W.2d at 771.
106. I b i d.
107. I b i d.
108. I b i d.
109. Id. The county condemned the properties for the following purposes: (1) the creation of jobs for its citizens; (2) the stimulation of private investment and redevelopment in the county to insure a healthy and growing tax base so that the county can fund and deliver critical public services; (3) stemming the tide of disinvestment and population loss; and (4) supporting development opportunities which would otherwise remain unrealized. Id. at 775-76.
110. Id. at 775-76.
111. Hathcock, 684 N.W.2d at 771.
112. Id., at 454.
113. Id., at 772.
114. see Mich. Comp. Laws § § 213.25, 213.56(1)-(2) (2004) (To be constitutional, a condemnation must be authorized, necessary, and for public purpose.);
115. Mich. Comp. Laws § 213.23 (2004). The statute provides that: Any public corporation or state agency is authorized to take private property necessary for a public improvement or for the purposes of its incorporation or for public and to institute and prosecute proceedings for the purpose. When funds have been appropriated by the legislature to a state agency or division thereof or the office of the governor or a division thereof for the purpose of acquiring lands or property for a designated public purpose, such unit to which the appropriation has been made is authorized on behalf of the people of the state of Michigan to acquire the lands or property either by purchase, condemnation or otherwise. For the purpose of condemnation the unit may proceed under the provisions of this act.
116. Mich. Comp. Laws § 213.23.
117. Hathcock, 684 N.W.2d at 772.
118. See Mich. Const. art. X, § 2 ("Private property shall not be taken for public use without just compensation therefore being first made or secured in a manner prescribed by law.").
119. Hathcock, 684 N.W.2d at 772.
120. Id., at 773. (emphasis in original).
121. Id., at 772-73.
122. Id., at 773-74.
123. Id., at 776.
124. Hathcock, 684 N.W.2d at 776.
125. I b i d.
126. I b i d.
127. (citing Mich. Comp. Laws § 213.56(2) ("With respect to an acquisition by a public agency, the determination of public necessity by that agency is binding on the court in the absence of a showing of fraud, error of law, or abuse of discretion.")).
128. Hathcock, 684 N.W.2d at 776.
129. Id., at 777.
130. I b i d.
131. The defendants cited to the fact that the county needed a special exclusion from the FAA to use the land for the project, that environmental issues had to be reviewed, and that a local district financing authority, along with a tax increment finance plan, had to be put in place. Id.
132. I b i d.
133. Id. at 777-78
134. Hathcock, 684 N.W.2d at 778.
135. Furthermore, the court noted that the defendants failed to brief this issue, so the court could simply consider it abandoned. Id.
136. Id., at 778.
137. I b i d.
138. I b i d.
139. Id., at 778.
140. I b i d.
141. see Mich. Const. art. X, § 2 ("Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law.").
142. Hathcock, 684 N.W.2d at 779.
143. I b i d.
144. Id., at 781.
145. I b i d.
146. Id., at 782.
147. Hathcock, 684 N.W.2d at 781.
148. Id., at 782.
149. Id., at 782-83.
150. The court cited, as an example, a condemnation by the City of Detroit where the controlling purpose was "to remove unfit housing and thereby advance public health and safety, " noting that the "subsequent resale of the land cleared of blight" was "incidental" to the goal.
151. Id., at 783
152. Id., at 784.
153. Id., at 783.
154. As the court noted: [T]he landscape of our country is flecked with shopping centers, office parks, clusters of hotels, and centers of entertainment and commerce. We do not believe, and plaintiff does not contend, that these constellations required the exercise of eminent domain or any other form of collective public action for their formation. Id. at 783-84.
155. Hathcock, 684 N.W.2d at 784.
156. The court explained that: The public benefit arising from the Pinnacle Project is an epiphenomenon of the eventual property owners' collective attempts at profit maximization. No formal mechanisms exist to ensure that the businesses that would occupy what are now defendants' properties will continue to contribute to the health of the local economy. Id
157. The court explained that: The public benefit arising from the Pinnacle Project is an epiphenomenon of the eventual property owners' collective attempts at profit maximization. No formal mechanisms exist to ensure that the businesses that would occupy what are now defendants' properties will continue to contribute to the health of the local economy. Id.
158. The court found no facts of independent public significance to justify the condemnations, noting that the only public benefits cited by the county would arise only after the lands were put to public use. Id.
159. Id. at 785
160. I b i d.
161. I b i d.
162. In overturning this significant precedent, the court stated that: [B]ecause Poletown itself was such a radical departure from fundamental constitutional principles and over a century of this Court's eminent domain jurisprudence leading up to the 1963 Constitution, we must overrule Poletown in order to vindicate our Constitution, protect the people's property rights, and preserve the legitimacy of the judicial branch as the expositor - not creator - of fundamental law. Id.
163. Two of the judges in their concurring opinions indicated that they would apply the decision prospectively instead of retroactively. Id. at 788.
164. See John Gallagher, Poletown Seizures are Ruled Unlawful: State Supreme Court Restricts Government Rights to Take Land, Detroit Free Press (July 31, 2004), available at http://www.freep.com/news /mich/land31_20040731.htm (last visited Feb. 17, 2005). As Gallagher noted: What the decision does mean is that the cost of land just went up for municipalities trying to accomplish economic development. Now that governments can no longer use the threat of seizure, private owners and speculators could demand higher prices to get out of the way of projects that government leaders deem essential.
165. I b i d.
166. Id. (quoting Wayne County Executive Robert Ficano as saying "the Michigan Supreme Court's decision to change Michigan law and divest municipalities from their ability to create jobs for their citizens is a disappointment not only for Wayne County, but for all of the Michigan communities struggling to address these difficult economic times").
167. Dan Slife, Redeveloping Lakewood: The West End Project 2, at http://www.lkwdpl.org/currentevents/westend/slife.pdf (last visited Mar. 3, 2005).
168. Dan Slife, Redeveloping Lakewood: The West End Project 2, at http://www.lkwdpl.org/currentevents/westend/slife.pdf (last visited Mar. 3, 2005).
169. Don Iannone, Lakewood, Ohio: Struggle to Get Land for Development, Econ. Dev. Futures Web J., Oct. 20, 2003, at http:// www.don-iannone.com/edfutures/2003_10_19_ed-futures_archive.html (last visited Feb. 17, 2005).
170. Jen Melby, Eminent Domain Abuse in Lakewood, Buckeye Inst. (Sept. 30, 2003), at http://www.buckeyeinstitute.org/article.php?id=187 (stating that "City of Homes" is the city motto).
171. Slife, supra note 128, at 2
172. Gross, supra note 9, at 2.
173. I b i d.
174. I b i d.
175. I b i d.
176. I b i d.
177. Gross, supra note 9, at 10
178. V. David Sartin, West End Deal Going to Lakewood Council, The Plain Dealer, Apr. 21, 2003, at B1 (quoting former mayor Madeline Cain).
179. Institute for Justice, Ohio's "City of Homes" Faces Wrecking Ball of Eminent Domain Abuse, Litigation Backgrounder, http://www.ij.org/private_property/lakewood/backgrounder.html (last visited Feb. 17, 2004).
180. WCBS Newsradio 880, Eminent Domain: A 60 Minutes Special Report, Sept. 28, 2003, at http://wcbs880.com/rooney/ sixtyminutes_story_271210317.html (last visited Mar. 3, 2005) [hereinafter 60 Minutes Report].
181. I b i d.
182. Gross, supra note 9, at 2
183. Id. at 2-3.
184. Id. at 3. The Washington, D.C. based Institute for Justice is a nonprofit, public interest law firm that routinely engages in litigation opposing the perceived abuse of eminent domain for private parties. The institute has created The Castle Coalition to provide a central bank of information that helps activists connect with each other in fighting eminent domain.
185. Id. at 3.
186. Stephen Gross, The Rise and Fall of the Shops at West End 2 (May 9, 2004), at http://lkwdpl.org/currentevents/westend/gross.pdf (last visited Mar. 3, 2005). 160 3. On May 29, 2003, the Committee for Lakewood submitted a letter of intent to allow the citizens of Lakewood to vote for or against Ordinance 38-03. Then on June 27, the Committee submitted 2,025 signatures to the city. On July 3, the Committee received notification from the city that 1,543 of the 2,025 signatures submitted to the city were valid signatures. On July 11, the Committee submitted an additional forty-five signatures after reading a Sun Post article in which the law director for the City of Lakewood stated that there may be over twenty signatures that could be declared invalid. Committee for Lakewood, History, at http:// www.forlakewood.org/history.html (last visited Feb. 17, 2005).
187. Gross, supra note 9, at 3
188. I b i d.
189. See id.
190. Melby, supra note 131 (reporting Mayor Cain's remark that " [tax base] is the bottom line").
191. I b i d.
192. I b i d.
193. 60 Minutes Report, supra note 141.
194. I b i d.
195. Minutes of the Regular Meeting of Lakewood City Council (Apr. 21, 2003), at http://www.lkwdpl.org/city/cc/mt030421.htm (last visited Feb. 17, 2005).
196. Blaine Harden, In Ohio, a Test for Eminent Domain, Wash. Post, June 22, 2003, at A03.
197. Institute for Justice, Ohio's "City of Homes" Faces Wrecking Ball of Eminent Domain Abuse, LITIGATION BACKGROUNDER, http://www.ij.org/ private_property/lakewood/backgrounder.html (last visited Feb. 17, 2004
198. I b i d.
199. Minutes of the Regular Meeting of Lakewood City Council (May 5, 2003), at http://www.lkwdpl.org/city/cc/mt030505.htm (last visited Feb. 17, 2005).
200. Minutes of the Regular Meeting of Lakewood City Council (Mar. 17, 2003), at http://www.lkwdpl.org/city/cc/mt0303l7.htm (last visited Feb. 17, 2005).
201. See 60 Minutes Report, supra note 141;
202. see also CBSNEWS.com, Eminent Domain: Being Abused? (July 4, 2004), http://www.cbsnews.com/stories/2003/09/26/60minutes/ main575343.shtml (last visited Mar. 4, 2005).
203. Gross, supra note 9, at 10
204. I b i d.
205. Minutes of the Regular Meeting of Lakewood City Council (July 21, 2003), at http://www.lkwdpl.org/city/cc/mt030721.htm (last visited Feb. 17, 2005).
206. Gross, supra note 9, at 4
207. I b i d.
208. WKYC-TV, Unofficial Final Recount of Lakewood West End Vote: Issue Fails (Dec. 4, 2003), at http://www.wkyc.com/news/ news_fullstory.asp?id=13358 (last visited Feb. 17, 2005).
209. I b i d.
210. Committee for Lakewood, We Won, http://www.forlakewood.org/ index.html (last visited Feb. 17, 2005).
211. A.2d 500. (Conn 2004.). The significance of this case is underscored by the fact that it is the first eminent domain case in fifty years that the U.S. Supreme Court has decided to hear.
212. A.2d 500 (Conn. 2004). The significance of this case is underscored by the fact that it is the first eminent domain case in fifty years that the U.S. Supreme Court has decided to hear. at 507.
213. Id. The Court stated, "[w]e concluded that economic development projects created and implemented pursuant to chapter 132 that have the public economic benefits of creating new jobs, increasing tax and other revenues, and contributing to urban revitalization, satisfy the public use clauses of the state federal constitutions."
214. I b i d.
215. Petition for Writ of Certiorari at 5, Kelo v. City of New London, 843 A.2d 500 (Conn. 2004),
216. cert. granted, 125 S. Ct. 27 (U.S. Sept. 28, 2004) (No. 04-108), 2004 WL 1659558;
217. Greg Stohr, Property-Rights Disputes Gets U.S. High Court Review, Bloomberg.com, at http://quote.bloomberg.com/apps/ news?pid=10000103&sid=aEqqxjAT_dB4&refer=us (last visited Feb. 17, 2005). Stohr reported that: The Justices agreed to hear an appeal by a group of homeowners who say the city of New London illegally tried to raze a residential neighborhood to make room for a five-star hotel, luxury condominiums and office buildings near the Pfizer facility. The city says it is trying to reverse decades of economic decline.
218. I b i d.
219. Kelo, 843 A.2d at 508.
220. I b i d.
221. I b i d.
222. I b i d.
223. I b i d.
224. Kelo, 843 A.2d at 508-09.
225. Id. at 509.
226. I b i d.
227. I b i d.
228. Id. at 509-10.
229. Kelo, 843 A.2d at 510.
230. Id. (noting that there would be between "(1) 518 and 867 construction jobs; (2) 718 and 1362 direct jobs; and (3) 500 and 940 indirect jobs ..."). The court later stated that the plan would generate "hundreds of construction jobs, approximately 1000 direct jobs, and hundreds of indirect jobs[,]" noting how significant this was for a city whose unemployment rate is close to double that rate of the rest of the state, not counting the Pfizer facility, which employs about 2,000 people. direct jobs, and hundreds of indirect jobs[,]" noting how significant this was for a city whose unemployment rate is close to double that rate of the rest of the state, not counting the Pfizer facility, which employs about 2,000 people.
231. Id. at 544 direct jobs, and hundreds of indirect jobs[,]" noting how significant this was for a city whose unemployment rate is close to double that rate of the rest of the state, not counting the Pfizer facility, which employs about 2,000 people.
232. Id. at 542 (stating that property tax revenues were expected to fall between § 680,544 and § 1,249,843. This represents a significant increase for an area that currently produces about §325,000 in property taxes.) and § 1,249,843. This represents a significant increase for an area that currently produces about §325,000 in property taxes.)
233. Id.at 510. These jobs were lost when the U.S. Naval Undersea Warfare Center closed, and 1,000 jobs were transferred to Newport, Rhode Island.
234. I b i d.
235. Id. at 510.
236. Kelo, 843 A.2d at 510.
237. Id. at 511.
238. I b i d.
239. Id. at 520.
240. 132 Conn. Gen. Stat. § 8-186 (2004). Specifically, section 8-186 provides: [T]he economic welfare of the state depends upon continued growth of industry and business within the state; that the acquisition and improvement of unified land and water areas and vacated commercial plants to meet the needs of industry and business should be in accordance with local, regional and state planning objectives; that such acquisition and improvement often cannot be accomplished through the ordinary operations of private enterprise at competitive rates of progress and economies of cost; that permitting and assisting municipalities to acquire and improve unified land and water areas and to acquire and improve or demolish vacated commercial plants for industrial and business purposes ... are public uses and purposes for which public moneys may be expended; and that the necessity in the public interest for the provisions of this chapter is hereby declared as a matter of legislative determination. [T]he economic welfare of the state depends upon continued growth of industry and business within the state; that the acquisition and improvement of unified land and water areas and vacated commercial plants to meet the needs of industry and business should be in accordance with local, regional and state planning objectives; that such acquisition and improvement often cannot be accomplished through the ordinary operations of private enterprise at competitive rates of progress and economies of cost; that permitting and assisting municipalities to acquire and improve unified land and water areas and to acquire and improve or demolish vacated commercial plants for industrial and business purposes ... are public uses and purposes for which public moneys may be expended; and that the necessity in the public interest for the provisions of this chapter is hereby declared as a matter of legislative determination.
241. I b i d.
242. Kelo, 843 A.2d at 522.
243. Olmstead v. Camp, 33 Conn. 532 (1866).
244. Kelo, 843 A.2d at 522
245. (quoting Olmstead, 33 Conn. at 546).
246. Id. at 523.
247. (quoting Olmstead, 33 Conn. at 551).
248. I b i d.
249. (quoting Gohld Realty Co. v. Hartford, 104 A.2d 365 (1954)).
250. Kelo, 843 A.2d at 531.
251. Id. at 527.
252. The court then cited to a laundry list of holdings in other state courts that essentially support the outcome: Oakland v. Oakland Raiders, 646 P.2d 835 (Cal. 1982) (explaining a city can take a professional football franchise by eminent domain to keep it from moving to another city; the case was remanded for a determination of the public benefit involved); that essentially support the outcome: Cal.) (explaining a city can take a professional football franchise by eminent domain to keep it from moving to another city; the case was remanded for a determination of the public benefit involved);
253. Shreveport v. Chanse Gas Corp., 794 So. 2d 963 (La. Ct. App. 2001) (explaining economic development in the form of a convention center and headquarters hotel satisfies public purpose and public necessity requirements of the Louisiana Constitution);
254. Prince George's County v. Collington Crossroads, Inc., 339 A.2d 278 (Md. 1975) (stating condemnation for an industrial park is a public purpose where the plan is reasonably designed to benefit the general public by significantly enhancing economic growth);
255. Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981) (upholding the taking of private homes for the construction of a General Motors car manufacturing plant for the public purpose of alleviating unemployment and revitalizing the economic base of the community, noting that "the benefit to the private interest [was] merely incidental"); of a General Motors car manufacturing plant for the public purpose of alleviating unemployment and revitalizing the economic base of the community, noting that "the benefit to the private interest [was] merely incidental");
256. Duluth v. State, 390 N.W. 2d 757 (Minn. 1986) (explaining construction of a large privately operated paper mill that would alleviate unemployment and contribute to local economic revitalization was a valid public purpose);
257. Kansas City v. Hon, 972 SW.2d 407 (Mo. Ct. App. 1998) (stating airport expansion is a valid public use where the land is transferred to a private aviation corporation);
258. Vitucci v. N.Y. City School Constr. Auth., 289 A.D.2d 479 (N.Y. App. Div. 2001) (stating that when a municipality determines that a new business may create jobs, provide infrastructure, and stimulate the local economy, these are all legitimate public purposes that justify the use of eminent domain);
259. Jamestown v. Leevers, 552 N.W.2d 365 (N.D. 1996) (explaining acquisition on nonblighted property for the purpose of stimulating commercial growth and economic stagnation satisfies the public use and purpose requirement of the constitution).
260. Id. at 528-30.
261. The Court dismissed cases from Arkansas, Florida, Kentucky, Maine, New Hampshire, South Carolina, and Washington that maintain economic development alone may not be enough to demonstrate a public use for eminent domain purposes. Id.
262. Kelo, 843 A.2d at 536. The court noted that the academic literature is rich with articles on both sides of the debate, and further acknowledged that there have been some particularly egregious cases. But it concluded that these cases are the exception, not the norm, and are therefore "readily distinguishable from projects such as the carefully considered development plan at issue in the present case."
263. I b i d.
264. Id. at 536.
265. Id. at 538.
266. Id. at 539.
267. Id. at 541.
268. Kelo, 843 A.2d at 542.
269. Id. at 543.
270. Id. at 543.
271. I b i d.
272. Id. at 544-45
273. Id. at 546.
274. Kelo, 843 A.2d at 547.
275. Id. at 551.
276. Id. at 551-52.
277. Id. at 575.
278. Id. at 576.
279. Id. at 576. Further, the dissent agreed with the majority's observation that "[a] public use defies absolute definition, for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of the scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transfortaion." public use defies absolute definition, for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of the scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transfortaion."
280. Id. at 525. public use defies absolute definition, for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of the scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transfortaion."
281. Kelo, 843 A.2d at 587. The dissent acknowledged, relying on Berman, that "[i]t is well established that judicial deference to determinations of public use by state legislatures is appropriate." "[i]t is well established that judicial deference to determinations of public use by state legislatures is appropriate."
282. Id. at 581. Citing to Midkiff, the dissent continued, "judicial deference to legislative declarations of public use does not require complete abdication of judicial responsibility." deference to legislative declarations of public use does not require complete abdication of judicial responsibility."
283. Id. at 582. Although, the dissent did acknowledge that the review role by the courts is very narrow. review role by the courts is very narrow.
284. Id. review role by the courts is very narrow.
285. Id.. The dissent noted that "there is a gathering storm of public debate about whether the use of eminent domain power to acquire property for private economic development in nonblighted areas is justified.... The complementary roles of the legislature and the judiciary as interpreters and guardians, respectively, of the takings power thus require further examination."
286. Id. at 581.
287. Id. at 593.
288. Id. at 600.
289. Id. at 587. The dissent asserted: [J]ust as the taking of nonblighted property in a blighted area is subject to additional scrutiny to determine wheter the taking is "essential to the redevelopment plan; so too, should a heightened standard of judicial review be required to ensure that the constitutional rights of privated property owners are protected adequately when property is taken for the purpose of private economic development under chapter 132 of the General Statutes. Justice demands no less. [J]ust as the taking of nonblighted property in a blighted area is subject to additional scrutiny to determine wheter the taking is "essential to the redevelopment plan; so too, should a heightened standard of judicial review be required to ensure that the constitutional rights of privated property owners are protected adequately when property is taken for the purpose of private economic development under chapter 132 of the General Statutes. Justice demands no less.
290. Id. [J]ust as the taking of nonblighted property in a blighted area is subject to additional scrutiny to determine wheter the taking is "essential to the redevelopment plan; so too, should a heightened standard of judicial review be required to ensure that the constitutional rights of privated property owners are protected adequately when property is taken for the purpose of private economic development under chapter 132 of the General Statutes. Justice demands no less.
291. Kelo, 843 A.2d at 587.
292. I b i d.
293. Id. at 588
294. I b i d.
295. Id. The dissent justified this higher level of scrutiny by noting that it is the same standard used for civil cases where individual rights are in dispute, and it is the standard of proof required in adverse possession cases. The dissent offered, "I also believe that the clear and convincing standard is required in this context because of the tremendous social costs of the takings, costs that are difficult to quantify, but nonetheless real." same standard used for civil cases where individual rights are in dispute, and it is the standard of proof required in adverse possession cases. The dissent offered, "I also believe that the clear and convincing standard is required in this context because of the tremendous social costs of the takings, costs that are difficult to quantify, but nonetheless real."
296. Id. at 589.
297. Kelo, 843 A.2d at 591.
298. Id. at 602.
299. Petition for Writ of Certiorari at 1, Kelo v. City of New London, 843 A.2d 500, (Conn. 2004),
300. cert. granted, 125 S. Ct. 27 (U.S. Sept. 28, 2004) (No. 04-108), 2004 WL 1877787 (Aug. 18, 2004).
301. Id. at 6
302. Reply Brief for Petitioners at 1, Kelo (No. 04-108).
303. Petition for Writ of Certiorari at 6, Kelo (No. 04-108).
304. Id. at 29. The Petition for Writ of Certiorari sets forth the different tests that have been utilized by the many states that have addressed this issue. have been utilized by the many states that have addressed this issue.
305. Id. at 11-20. Some have held that economic benefits are dependent on private ones and therefore incidental. when the public benefit occurs only as an indirect or derivative effect of the private development, then a number of states find that the public benefit is "incidental" and insufficient to sustain a finding of public use.
306. Id. at 18. Petitioners stated that "according to Connecticut, as long as the city has come up with a chain of causation that could eventually lead to some public benefits in the form of tax revenues and jobs, then that is the primary purpose." that "according to Connecticut, as long as the city has come up with a chain of causation that could eventually lead to some public benefits in the form of tax revenues and jobs, then that is the primary purpose."
307. Id. at 19.
308. Petitioner's Brief on the Merits at 11, Kelo (No. 04-108).
309. Id. at 10.
310. Respondent's Reply to Petition for Certiorari at 1, Kelo (No. 04-108).
311. Id. at 13-14.
312. Respondent's Brief on the Merits at 11-12, Kelo (No. 04-108).
313. I b i d.
314. Id. at 12-13.
315. The co-authors of this article participated in this case on the side of the City of New London.
316. Brief of Amici Curiae America's Future, Inc. and Somerset Transmission & Repair Center, Kelo v. City of New London, 843 A.2d 500 (Conn. 2004),
317. cert. granted 125 S. Ct. 27 (U.S. Sept. 28, 2004) (No. 04-108), 2004 WL 2750340;
318. Brief of Amici Curiae American Farm Bureau Federation et al., available at 2004 WL 2787138;
319. Brief of Amici Curiae Becket Fund for Religious Liberty, available at 2004 WL 2787141;
320. Brief of Amici Curiae Better Government Association, Citizen Advocacy Center et al., available at 2004 WL 2787142;
321. Brief of Amici Curiae Professors David L. Callies, James T. Ely et al., available at 2004 WL 2803192;
322. Brief of Amici Curiae Cascade Policy Institute, American Association of Small Property Owners et al., available at 2004 WL 2802969;
323. Brief of Amici Curiae Cato Institut, available at 2004 WL 2802972;
324. Brief of Amici Curiae Claremont Institute Center for Constitutional Jurisprudence, available at 2004 WL 2802971;
325. Brief of Amici Curiae Develop Don't Destroy (Brooklyn), Inc. and the West Harlem Business Group, available at 2004 WL 2811058;
326. Brief of Amici Curiae Mary Bugryn Dudko et al., available at 2004 WL 2811056;
327. Brief of Amici Curiae Goldwater Institute et al., available at 2004 WL 2803193;
328. Brief of Amici Curiae Jane Jacobs, available at WL 2803191;
329. Brief of Amici Curiae King Ranch, Inc., available at 2004 WL 2803448;
330. Brief of Amici Curiae Laura B. Kohr and Leon P. Haller, Esq., Trustee, Owners of Lauxmont Farms, available at 2004 Wl 2802970;
331. Brief of Amici Curiae Mountain States Legal Foundation and Defenders of Property Rights, available at 2004 WL 2802968;
332. Brief of Amici Curiae NAACP, AARP et al., available at 2004 WL 2811057;
333. Brief of Amici Curiae National Association of Home Builders and the National Association of Realtors, available at 2004 WL 2787139;
334. Brief of Amici Curiae New London Landmarks, Inc., the Coalition to Save the Fort Trumbull Neighborhood et al., available at 2004 WL 2812099;
335. Brief of Amici Curiae New London R.R. Co., Inc., available at 2004 WL 2802973;
336. Brief of Amici Curiae John Norquist, President, Congress for New Urbanism, available at 2004 WL 2811055;
337. Brief of Amici Curiae Property Rights Foundation of America, Inc., available at 2004 WL 2787137;
338. Brief of Amici Curiae Reason Foundation, available at 2004 WL 2787140;
339. Brief of Amici Curiae Robert Nigel Richards et al., available at 2004 WL 2802967;
340. Brief of Amici Curiae Rutherford Institute, available at 2004 WL 2605096;
341. Brief of Amici Curiae Tidewater Libertarian Party, available at 2004 WL 2803190.
342. Brief of Amici Curiae American Planning Association et al., available at 2005 WL 166929;
343. Brief of Amici Curiae Brooklyn United for Innovative Local Development (BUILD) et al.;
344. Brief of Amici Curiae California Redevelopment Association, available at 2005 WL 166942;
345. Brief of Amici Curiae City of New York, available at 2005 WL 166943;
346. Brief of Amici Curiae Connecticut Conference of Municipalities et al., available at 2005 WL 176426;
347. Brief of Amici Curiae Law Professors Robert H. Freilich et al., available at 2005 WL 176672;
348. Brief of Amici Curiae K. Hovnanian Companies, LLC, available at 2004 WL 2811123;
349. Brief of Amici Curiae Massachusetts Chapter of the National Association of Industrial and Office Properties, available at 2004 U.S. Briefs 108;
350. Brief of Amici Curiae Mayor and City Council of Baltimore, available at 2005 WL 166931;
351. Brief of Amici Curiae the National League of Cities et al., available at 2005 WL 166931;
352. Brief of Amici Curiae New York State Urban Development Corporation;
353. Brief of Amici Curiae States of Vermont, Delaware, Hawaii, Illinois, Maryland, Montana, New York, Oklahoma, Oregon, Rhode Island, South Dakota, and Tennessee, and the District of Columbia, available at 2005 WL 166945.
354. Mr. Norquist was mayor of Milwaukee from 1988-2003, the author of The Wealth of Cities (1998), and taught courses in urban policy and urban planning.
355. Congress for New Urbanism is a nonprofit organization with members who are primarily architects, planners, engineers, and developers. More information about them is available on their website at http:// www.cnu.org (last visited Feb. 17, 2005).
356. Jane Jacobs is perhaps best known for her 1961 book, The Death and Life of Great American Cities. She has also written The Economy of Cities (1969), Cities and the Wealth of Nations (1984), Systems of Survival (1993), and The Nature of Economies (2000). Her most recent book, Dark Age Ahead (2004), describes the "monumental crossroads" we now find ourselves at as agrarianism gives way to a technology-based future.
357. National Association for the Advancement of Colored People.
358. A national association that provides information, advocacy, and benefits for people aged 50 and over.
359. New London R.R. Company, America's Future Inc. and Somerset Transmission & Repair Center, King Ranch Inc., Lauxmont Farms, and Develop Don't Destroy.
360. Brief of Amicus Curiae the Massachusetts Chapter of the National Association of Industrial and Office Properties at 2.
361. Brief of Amicus Curiae American Planning Association at 1. The American Planning Association is a nonprofit public interest and research organization representing practicing planners, officials, and citizens involved on a day-to-day basis in formulating and implementing planning policies and land-use regulations. Id. at 1.
362. Sup. Ct. R. 37. Brief for and Amicus Curiae - An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.
363. See, e.g., Brief of Amicus Curiae John Norquist, President, Congress for New Urbanism; Brief of Amici Curiae NAACP et al.; Brief of Amici Curiae American Farm Bureau Federation et al.; Brief of Amici Curiae Claremont Institute Center for Constitutional Jurisprudence; Brief of Amicus Curiae Propety Right Foundation; Brief of Amici Curiae Better Government Association et al.
364. Brief of Amici Curiae National Association of Home Builders et al. (urging the court to adopt an intermediate level of scrutiny); Brief of Amicus Curiae New London R.R. Co. (discussing eight different tests currently used in various state courts and urging the Court to fashion a stringent standar that applies, not only to economic development cases, but to all condemnation cases, particularly where the taking disproportionately benefits a private party); Brief of Amici Curiae Cascade Policy Institute et al. (believing that the Public Use Clause and the just compensation claims warrant the same heightened level scrutiny and should receive parallel interpretations); Brief of Amicus Curiae Claremont Institute at 4. The Claremont Institute believes the Court should enforce the original meaning of public use with this "simple test": Government takes property for a public use if it retains ownership of the property, or if it assigns the property to a private party subject to common carrier duties of public access. But if the government transfers property to a private party not subject to common carrier duties, the taking is for a private use and violates the Public Use Clause. Id.; Brief of Amici Curiae New London Landmarks, Inc. et al. (believing that heightened scrutiny should be applied to takings for a private benefit, or for general, underfined economic benefits, or when property is taken for an uncertain or unduly vague intended use); Brief of Amicus Curiae King Ranch, Inc. King Ranch believes the power of eminent domain should only be exercised for a public necessity. The government must show its present need for the property - not speculative, hypothetical, or uncertain uses. Absent a specific plan for the property to be taken, there can be no meaningful judicial review of the taking of property, Id.; Brief of Amicus Curiae Lauxmont Farms at 20: The test that should be applied in the takings context should be first for the court to determine whether the property to be taken is blighted. If the court determines the property is not blighted, then it ought to decide whether the proposed economic development or other justification for the taking amounts to a significant and legimate public purpose. Finally, if the court determines that there is a significant and legitimate public purpose, it should then decide whether the scope of the taking is appropriate (i.e., whether the taking is or ought to be an easement, fee, or some other interest in land). Id.; Brief of Amici Curiae Develop Don't Destroy et al. (wanting the Court to formulate a narrow definition of "public use" which excludes "economic benefit"); Brief of Amici Curiae Robert Nigel Richards et al. (wanting the Court to adopt heightened scrutiny for exercise of eminent domain justified by promises of a better economy, just as it has established for suspect regulatory takings, because a heightened review will be useful to "smoke out" illegitimate criteria when the condemning authority is using the "suspect tool" of eminent domain).
365. For example, Block 37 in Chicago cleared more than fifteen years ago and sold this year at a loss; a city block on Wisconsin Avenue cleared by the City of Milwaukee in 1985 for a hotel has remained a parking lot ever since; four elderly siblings in Bristol, Connecticut, were forced to leave their Christmas tree farm to make way for a new industrial park; several elderly African-American families in Canton, Mississippi, were forced to leave the homes they had lived in for over sixty years to make room for a new Nissan auto plant.
366. For example, Pine Street Associates implemented a private redevelopment plan for downtown Seattle, Washington; a mall in Providence, Rhode Island; twenty-six blocks in West Palm Beach, Florida; Disney World in Orlando, Florida; and the City of Columbia, Maryland.
367. Brief of Amici Curiae Becket Fund for Religious Liberty at 3.
368. Brief of Amici Curiae States of Vermont et al. at 4.
369. Brief of Amici Curiae Mayor and City Council of Baltimore at 4.
370. Brief of Amici Curiae Connecticut Conference of Municipalities at 2-3.
371. Brief of Amici Curiae K. Hovnanian Companies, LLC.
372. Brief of Amici Curiae National League of Cities et al. at 2.
373. Brief of Amici Curiae National League of Cities et al. at 2.
374. Brief of Amici Curiae New York State Urban Development Corporation at 18.
375. Brief of Amici Curiae New York State Urban Development Corporation at 18.
376. Brief of Amici Curiae Professors David L. Callies et al., Kelo v. City of New London, 843 A.2d 500 (Conn. 2004),
377. cert. granted, 125 S. Ct. 27 (U.S. Sept. 28, 2004) (No. 04-108), 2004 WL 2803192.
378. Brief of Amici Curiae Law Professors Robert H. Freilich et al.
379. Brief of Amici Curiae Professors David L. Callies et al. The Callies amicus Authority v. Midkiff, 467 U.S. 229 (1984), which provides that legislative assertions of public use should be subjected to rational basis review. The application of such broadly deferential review in public use cases is inappropriate. Application of rational basis review to the exercise of eminent domain in cases such as this effectively eviscerates the Fifth Amendment's public use limitation. Moreover, lower courts' responses to the exponential increase in the use of eminent domain for generalized "economic development" has resulted in a hodgepodge of decisions variously upholding and striking down such condemnations on similar facts. These cases make clear that many stake courts are uncomfortable with granting governmental entitles carte blanche authority to condemn property for speculative "economic development projects. This case offers the Court an important opportunity to revisit the application of rational basis review in public that will reinvigorate the protections guaranted by the Fifth Amendment's Takings Clause. An appropriate ends of government action (e.g., to decide that certain areas of New London, Connecticut should be redeveloped). It would merely require that a government justify a decision to resort to eminent domain as the means of achieving those goals." Id. at 3-4.
380. Brief of Amici Curiae Law Professors Robert H. Freilich et al. at 3-4. The Freilich amicus brief summarizes its argument for the respondent as follows: This Court for over 100 years has reviewed cases under the Fifth Amendment public use taking clause... using the rational basis test, and this test remains, in our view, the appropriate test, especially for state and local government legislative determinations to use condemnation to achieve the social and economic redevelopment and revitalization of a city. This Court has never use higher scrutiny for eminent domain or taking except in a limited range of cases involving unconstitutional conditions attached to development approval, and there is no reason to apply it to direct condemnation under the Fifth Amendment. In determining whether property may be acquired by condemnation for social and economic redevelopment and revitalization, the requisites of our Constitution are fully satisfied if a court evaluates whether the legislative determinaiton supporting the condemnation is rational, and the legislative decision must be upheld unless it is patently arbitrary or lacks valid statutory authority. Intermediate scrutinuy is highly inappropriate in our federalist form of government. This Amicus Brief urges this Court to reiterate its prior holdings, establishing that so long as: (1) there is state statutory or home rule authority establishing the goals and means of achieving social and economic redevelopment and revitalization; (2) the state or local government has utilized a comprehensive planning process and analysis assessing the goals and means; and (3) the state or local government retains regulatory or contractual or ownership control over the project and a private redeveloper, there is valid public use and purpose to meet the Fifth Amendment's rational basis review. id.
381. Brief of Amici Curiae American Planning Association at 3.
382. Id. at 3.
383. Oral argument was held on February 22, 2005, after the writing of this article.
384. Reply Brief of Petitioners at 1.
385. Id. at 8-9.
386. Id. at 4.
387. I b i d.
388. I b i d.
389. Reply Brief of Petitioners at 17.
390. Id. at 18.
391. See Matthew Vadum, An Eminent Concern?: Case Could Change Redevelopment Landscape, The Bond Buyer Online, Oct. 1, 2004, at http://www.bond buyer.com/article.html?id=20041001JO83FQOH &from=home (last visited Feb. 17, 2005) ("The case ... is of interest to cash-strapped localities that want to condemn land in order to clear the way for redevelopment projects that promise jobs and increased tax revenues. It is also of interest to the municipal bond market because municipal debt is often used in redevelopment financing packages, so any narrowing of the criteria used in eminent domain cases could have an impact on that market.").