Kelo v. New London: Bad law, bad policy, and bad judgment

Urban Lawyer

Volumn 38, Issue 2, 2006, Pages 201-235

  Kanner, Gideon ^a  

^a Loyola Law School Los Angeles   (United States)

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LAW ENFORCEMENT;

EID: 33746267215     PISSN: 00420905     EISSN: None     Source Type: Journal    
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References (207)

1. Kelo v. City of New London, 125 S. Ct. 2655 (2005).
2. For a concise review of Kelo in its historical context, see Carla T. Main, How Eminent Domain Ran Amok, 133 Pol'y Rev. 1, 3 (2005).
3. See, e.g., Paul Shigley, Backlash Threatens Redevelopment: Eminent Domain Ruling Sparks Legislation, Calls for Reform; State Legislation, 20 Cal. Plan. & Dev. Rep. 1 (2005) (stating that many "public opinion polls showed widespread opposition" to Kelo).
4. Sibley Fleming & Parke Chapman, Eminent Outrage, Nat'l Real Est. Investor, Feb. 1, 2006, at 20 (stating that thirty-eight states have introduced legislation to curb the Kelo decision, while seven states and thirty-six local governments have passed anti-Kelo legislation).
5. Billy Rose's Jumbo (MGM 1962).
6. S. Ct. at 2662.
7. Bryan A. Garner, A Dictionary of Modern Legal Usage 720 (2d ed. 1995).
8. Berman v. Parker, 348 U.S. 26 (1954).
9. See 125 S. Ct. at 2665.
10. See, e.g., Capron v. State, 247 Cal. App. 2d 212 (1964)
11. see infra note 134.
12. For an example, see Government of Guam v. Moylan, 407 F.2d 567 (9th Cir. 1969), which approved condemnation of a war-ravaged area of the City of Agana to allow replatting preparatory to its reconstruction. Even given its unique facts, I find the Moylan reasoning to be a stretch because it was decided a quarter-century after the end of the war, and I find it hard to believe that Agana remained unreconstructed that long.
13. See generally Gideon Kanner, Condemnation Blight: Just How Just Is Just Compensation?, 48 Notre Dame L. Rev. 765, 767-68, 769, n.18 and accompanying text (1973)
14. Richmond Elks Hall Ass'n v. Richmond Redev. Agency, 561 F.2d 1327 (9th Cir. 1977)
15. Amen v. City of Dearborn, 363 F. Supp. 1267 (E.D. Mich. 1973)
16. Foster v. Detroit, 254 F. Supp. 655 (E.D. Mich. 1966).
17. For an astute judicial critique of the pitfalls of this theory, see Regus v. City of Baldwin Park, 70 Cal. App. 3d 968, 982-83 (Cal. 1977). As Justice Macklin Fleming put it in Regus, The promoters of such projects promise that in time everyone will benefit, taxpayers, government entities, other property owners, bondholders; all will profit from [the]... increased future assessments on the tax rolls, for with the baking of a bigger pie bigger shares will come to all. But the landscape is littered with speculative real estate developments whose profits turned into pie in the sky; particularly where a number of communities have competed with one another to attract the same regional businesses.
18. Id.
19. When such failures occur, the taxpayers are left holding the bag. See Pasadena Redev. Agency v. Pooled Money Inv. Bd., 186 Cal. Rptr. 264 (Cal. Ct. App. 1982)
20. infra, note 13.
21. For example, in Burbank, California, the city invested $120.7 million in a redevelopment shopping center, planning to receive in the next twenty-five years some $229 million in taxes and $52.7 million as its 50-50 share of the developer's profits. But as it turned out, five years later it became clear the mall "won't produce a dime in profits for the foreseeable future." The redeveloper promised a $10 million payment in the future but to get even that the city had to give up its share of any future profits. Vivien Lou Chen, The Deal Is Off for Burbank, Mall Developer, L.A. Times, Nov. 13, 1994, at A1.
22. In fact, redevelopers' usual rosy prognostications notwithstanding, the operation of shopping malls is a business fraught with pitfalls and failures. (This is a favorite land re-use of redevelopers. See Bernard J. Frieden & Lynn E. Sagalyn, Downtown, Inc. - How America Rebuilds Cities (1989)). Justice Fleming discusses such problems in Regus.
23. See Moran, infra note 15
24. Peter T. Kilborn, An Enormous Landmark Joins Graveyard of Malls, N.Y. Times, Dec. 24, 2003, at A12
25. Timothy Egan, Retail Darwinism Puts Old Malls in Jeopardy, N.Y. Times, Jan. 1, 2000, at A20
26. Morris Newman, In Rise and Fall of Malls, Weaker Ones Get "Demalled:" Real Estate: Changes in Shopping Patterns Are Facing a Transformation Among Southland's Struggling Retail Centers, L.A. Times, Dec. 14, 1999.
27. Compare Yonkers Cmty. Dev. Agency v. Morris, 335 N.E.2d 327 (N.Y. 1975)
28. with Yonkers v. Otis Elevator Co., 844 F.2d 42 (2d Cir. 1988) (a few years after condemnation of Morris's land for Otis's manufacturing plant expansion, Otis shut down the plant and left Yonkers, leaving the city holding the bag).
29. Thus, the plan involved in the Kelo case called for the construction of a five-star hotel, but that aspect of the plan was abandoned even before Kelo was decided by the Supreme Court. Kate Moran, Developer Says Fort Trumbull Hotel Plan Not Viable Since 2002: Project Became Unrealistic Without Pfizer Commitment, The Day, June 12, 2004, at C4.
30. 348 U.S. 26 (1954).
31. Id. at 30-31.
32. I use quotation marks because in today's redevelopment law the terms "blight" or "blighted" are at best terms of art and at worst an outright fraud that the courts, to their everlasting shame, accept as fact. "[B]light removal - an eminent domain category that traditionally has been as slippery as an eel - can always surface ... as a convenient loophole." Main, supra, note 1, at 23
33. see also George Lefcoe, Finding the Blight That's Right for California Redevelopment Law, 52 Hastings L.J. 991 (2001) (explaining that what the redevelopment community is after is not slums or genuinely blighted parts of town to be rebuilt and rehabilitated, but rather "blight that's right," meaning parts of town that are sufficiently downscale to justify a colorable claim that they are sufficiently blighted to justify their taking, but sufficiently upscale so that after they are condemned, the new commercial improvements built on them will be appealing to the affluent population that lives nearby and whose dollars are essential to support the shopping malls and other private businesses established on the taken and razed land).
34. Kelo, 125 S. Ct. at 2677 (O'Connor, J., dissenting).
35. See, e.g., Jacques B. Gelin & David W. Miller, The Federal Law of Eminent Domain, 47-99 (1982) (canvassing the various individual losses that are not compensable in eminent domain). Even as big a fan of economic redevelopment as Prof. Thomas W. Merrill, is of the view that "[t]he most striking feature of American compensation law - even in the context of formal condemnations... is that just compensation means incomplete compensation.")
36. Thomas W. Merrill, Incomplete Compensation for Takings, 11 N.Y.U. Envt1. L.J. 110, 111 (2002) (acutely conscious of that problem, some of the defenders of the Kelo decision have made half-hearted concessions that improvement in the law of compensation may indeed be warranted. But that has been all talk, and not much of it. There have been no visible moves by the redevelopment community toward reform of the prevailing unjust "just compensation").
37. For me, it's a case of I'll-believe-it-when-I-see-it, but in my forty-year long career as an eminent domain lawyer and my thirty-year long service as consultant on eminent domain to the California Law Revision Commission, I have never seen it. I would be pleased if I were to be proven wrong, but it seems like an entirely safe bet that any future legislation of this type will be vigorously opposed by various government entities as it always has been. Thus, for example, the Uniform Eminent Domain Code proposed by the Uniform Law Commissioners was successfully opposed by government entities, and in spite of its modest proposals for (mostly procedural) reform, has been a resounding failure, adopted only by a couple of states, and eventually downgraded to the status of a Model Code. Uniform Eminent Domain Code (West 1974).
38. See John Gibeaut, The Money Chase, 85 A.B.A. J. 58 (1999)
39. Dean Starkman, Take and Give: Condemnation Is Used to Hand One Business Property of Another, Wall St. J., Dec. 2, 1998, at A1.
40. See a collection of instances of multi-hundred-million-dollar waste in redevelopment projects and the creation of public works in Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill Rts. J. 653, 687 n.142, 762-63, nn. 449-50, 764-65, n.455 [hereinafter Kanner, Making Laws and Sausages].
41. This is no hyperbole. See e.g., People v. Symons, 357 P.2d 451, 455 (Cal. 1960) (asserting without any evidentiary support whatever that payment of compensation for diminution of value concededly suffered but deemed by the court to be noncompensable, would bring about an "embargo" on the creation of desirable public works).
42. Note that under California law, trial lawyers' similar arguments to the trier of fact that it bring in a low verdict because of the defendant's limited resources constitute prejudicial misconduct that gives rise to reversible error. Hoffman v. Brandt, 421 P.2d 425 (Cal. 1966).
43. See, e.g., City of Los Angeles v. Retlaw Enters., 546 P.2d 1380 (Cal. 1976)
44. Stone v. City of Los Angeles, 51 Cal. App. 3d 987 (Cal. Ct. App. 1975) (illustrating the colossal boondoggle whereby in the 1970s the City of Los Angeles condemned over 17,000 acres of land for what it grandly called a new "Intercontinental" airport that was never built). The taken land is largely leased to sheepherders and pistachio nut growers. Only one short-hop airline has been using this "Intercontinental" airport, and to get it to do so, the city had to offer it free rent.
45. T.W. McGarTy, An Airport Waiting to Happen: Desert "Superport" to Ease LAX Traffic Is Two-Decade Dream, L.A. Times, May 2, 1988, pt. 2, at 8. As of this writing, that airline has ceased using that airport which is now completely unused.
46. See Heather Lende, Alaska's Road to Nowhere, N.Y. Times, Aug. 20, 2005, at A27 (relating congressional expenditures of hundreds of millions of dollars for useless projects, including a $230 million bridge nearly the size of the Golden Gate Bridge "between Anchorage and a swampy, undeveloped port," and a major road from Juneau that ends in the middle of a wilderness because the federal government, which appropriated $15 million for it, won't finance the completion of its part going "through Skagway's Gold Rush-era park, a national landmark").
47. Id.
48. Faced with a public uproar when these facts became known, Congress eliminated the specific funding for the Gravina Island Bridge, but let Alaska keep the appropriated money anyway, authorizing it to spend those millions on transportation projects any way it wants, not excluding the bridge. See Associated Press, Alaskan Bridge Projects That Drew Ridicule May Be on Ice, But State Will Still Get the Cash, L.A. Times, Nov. 17, 2005, at A26
49. Carl Hulse, Two "Bridges to Nowhere" Tumble Down in Congress, N.Y. Times, Nov. 17, 2005, at A19.
50. 348 U.S. 26 (1954).
51. 571 F. Supp. 117 (S.D.N.Y. 1983).
52. 503 U.S. 407 (1992).
53. See 348 U.S. at 26.
54. Id. at 32.
55. Id. at 36-37.
56. Id. at 36.
57. Berman, 348 U.S. 26 (1954). Probably the most remarkable (and unfortunate) aspect of the Berman opinion is that though it is said to be the leading modern case construing the constitutional phrase "public use," it barely mentions that phrase, much less construes it. The phrase "public use" is mentioned only once in the Court's entire legal analysis, though it is also included in two quotations, respectively, one from the Fifth Amendment and the other from the pertinent statute.
58. Id.
59. Id.
60. See Kelo, 125 S. Ct. at 2665.
61. See also Kelo, 125 S. Ct. at 2666 n.16 (purporting to reject Justice O'Connor's dissenting argument that takings for transfer to private individuals for their private uses are permissible only when "the initial taking eliminates some 'harmful property use"').
62. John Paul Stevens, Supreme Court Justice, Judicial Predilections, Address at the Clark County Bar Association Meeting (Las Vegas, Nev., Aug. 18, 2005), in 6 Nev. L.J. 1 (2005).
63. Stanley v. Elinois, 405 U.S. 645, 656 (1972).
64. 348 U.S. at 34-35.
65. Bruce Allen Murphy, Wild Bill: The Legend and life of William O. Douglas (2003).
66. Ernst Freund, The Police Power: Public Policy and constitutional rights 546-47 (1904). It may be useful to recall that the British call eminent domain "compulsory purchase," which leaves no one in doubt that it is categorically different from the regulatory police power under which inherently nothing is purchased.
67. Ellen Frankel Paul, Property rights and eminent domain 93 (1987) (emphasis added).
68. See id. at 91, aptly characterizing Justice Douglas' opinion in Berman as a "mighty obfuscation" that "confused the law almost beyond redemption [and] dealt a devastating blow to the public use limitation upon what government can constitutionally take."
69. See, e.g., City of Des Moines v. Gray Businesses, LLC, 124 P.3d 324, 328-29 (Wash. Ct. App. 2005).
70. 467 U.S. 229 (1984).
71. Id.
72. Id. at 233.
73. Horatory Fluff, 33 Pepp. L. Rev. 335, 355 (2006).
74. Id.
75. Id.
76. 467 U.S. at 233.
77. Id. Such transfers have been traditionally deemed illegitimate and unconstitutional. See, e.g., Calder v. Bull, 3 U.S. 386, 388 (1798).
78. Note that in Kelo the majority paid lip service to Calder. 125 S. Ct. at 2661 n.5.
79. 467 U.S. at 241-42.
80. Id.
81. On Oahu, 47% of privately owned land was held by 72 private owners. 467 U.S. at 232. But query whether the Hawaii legislature was merely wrong or irrational in supposing that fee simple title would be cheaper than leaseholds.
82. See David L. Callies, Regulating Paradise: Land Use Controls in Hawaii 173-74 (1984) (quoting the then dean of the nation's land use bar, the late Richard Babcock, voicing alarm over the fact that Hawaii's land use restrictions "have contributed to one of the nation's most appalling shortages of housing and a substantial increase in the cost of what housing there is"); Opinion, Housing Supply Needs to Be Increased, Pac. Bus. News, Oct. 7, 2005, available at http://the.honoluluadvertiser.com/article/2003/Oct/05/op/op10a.html/ (last visited Feb. 20, 2006)
83. John B. Ray, 1961 Land-Use Law Prohibitive, Honolulu Advertiser, Oct. 5, 2003, at B1.
84. 467 U.S. at 242-43.
85. For commentary on the Midkiff case, see PAUL, supra note 42, at 99-102.
86. See, e.g., John Duchemin, Rediscovering Hawaii, Honolulu Advertiser, Nov. 5, 2000, at 1G.
87. Charlotte Low Allen, The Golden Land Rush, Insight on the News, Oct. 29, 1990, at 15
88. see also John Duchemin, Rediscovering Hawaii, Honolulu Advertiser, Nov. 5, 2000, at 1G (noting that the Japanese preferred long-term investments and were therefore not interested in leaseholds of limited duration, but their motivation changed abruptly when fee simple titles to choice Oahu homes became available).
89. 467 U.S. at 241. In a stroke of poetic justice, Justice O'Connor had to eat those words in Kelo where she vainly protested in her dissent that she did not intend to go as far as the Kelo majority.
90. 125 S. Ct. at 2674-75 (O'Connor, J., dissenting)
91. see also William D. Araiza et al., The Jurisprudence of Yogi Berra, 46 Emory L.J. 697, 709 (1997) (adding a witty perspective on the matter).
92. Id. at 245. Justices Blackmun and O'Connor provided us with an unintended bit of amusement. On May 9, 1984, Justice Blackmun (who planned to be in Honolulu at the time scheduled for the filing of the Midkiff opinion) wrote to Justice O'Connor, asking her to delay its filing until his return, offering the following justification: "I run into enough flak as it is these days, and I think it would be better if I were out of the state by the time the decision came down." Letter from Justice Blackmun to Justice O'Connor (May 9, 1984) (on file with the Library of Congress, Madison Building, Manuscript Room). Justice O'Connor obliged: "I will be more than happy to get you safely back on the Mainland before lowering the boom by announcement of this decision." Letter from Justice O'Connor's to Justice Blackmun (May 9, 1984) (on file with the Library of Congress, Madison Building, Manuscript Room). However, I don't recall any popular Hawaiian upheaval following the Midkiff decision. This may only be an illustration of the Biblical admonition that "[t]he wicked flee when no man pursueth; but the righteous are bold as a lion." Proverbs 28:1 (King James).
93. 467 U.S. 986 (1984).
94. 467 U.S. at 1015-16.
95. 503 U.S. 407.
96. Id.
97. 503 U.S. at 422.
98. U.S. Const. art. VI, § 2
99. see U.S. CONST. amend. XIV, § 5.
100. See United States v. Lopez, 514 U.S. 549, 561 n.3 (1995).
101. In other words, the doctrine of federalism is implicated when federal adjudication would be "an intrusion into the state's right to enforce its own laws in its own courts." Black's Law Dictionary, at 1128 (B. Garner, ed. 7th ed. 1999) (emphasis added). Obviously, the interpretation and enforcement of federal constitutional law cannot be rationally deemed to be a matter of state law.
102. 5 U.S. 137 (1803).
103. Roger Traynor, No Magic Words Could Do It Justice, 49 Cal. L. Rev. 615, 621 (1961).
104. 2 Lewis Orgel, Valuation Under the Law of Eminent Domain § 248 (2d. ed. 1953).
105. See contradictory case juxtapositions collected in Kanner, Making Laws and Sausages, supra note 22, at 683.
106. United States v. Gen. Motors Corp., 323 U.S. 373, 382 (1945).
107. See data collected in Gideon Kanner, Condemnation Blight: Just How Just Is Just Compensation?, 48 Notre Dame L. Rev. 765, 803-04 n.196 and associated text (1973).
108. Space limitations preclude even a cursory review of the vast legal literature on this subject. Some of the better works are: Richard A. Epstein, Takings: Private Property and the Power Of Eminent Domain 182 (1985)
109. Ann E. Gergen, Why Fair Market Value Fails as Just Compensation, 14 Hamline J. Pub. L. & Pol'Y 181 (1993)
110. James Geoffrey Durham, Efficient Just Compensation as a Limit on Eminent Domain, 69 Minn. L. Rev. 1277 (1985)
111. D. Michael Risinger, Direct Damages: The Lost Key to Constitutional Just Compensation When Business Premises Are Condemned, 15 Seton Hall L. Rev. 483 (1985)
112. Michael R. Klein, Eminent Domain: Judicial Response to the Human Disruption, 1 Urb. Law. 2 (1968)
113. Curtis J. Berger & Patrick J. Rohan, The Nassau County Study: An Empirical Look into the Practices of Condemnation, 67 Colum. L. Rev. 430 (1967) (demonstrating a pervasive pattern of undercompensation of condemnees)
114. Allison Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 Sup. Ct. Rev. 63, 106 (1962) (concluding after an extensive study of the preceding thirty years of Supreme Court case law, that the Court's effort had been a failure)
115. and see particularly, Comment, Eminent Domain Valuations in an Age of Redevelopment, 67 Yale L.J. 61 (1957).
116. See, e.g., William C. Bryant, Eminent Domain - Its Use and Misuse, 39 U. Cin. L. Rev. 259 (1970) (describing how the State of Ohio incurred a crushing debt as a result of its railroad subsidies).
117. Wendell E. Pritchett, The "Public Menace" of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol'y Rev. 1, 9-10 (2003).
118. William G. Ross, The Senate's Constitutional Role in Confirming Cabinet Nominees and Other Executive Officers, 48 Syracuse L. Rev. 1123, 1140 (1998).
119. Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981) (allowing condemnation of an entire working-class neighborhood for the site of a General Motors Cadillac plant),
120. overruled by County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004).
121. Kelo,125 S. Ct. at 2659. Among other things, the head of the city agency that pursued the Kelo case, and is widely credited with securing Pfizer's commitment to construction of its new research center next to the Fort Trumbull redevelopment project, was married at the time to Pfizer's director of research.
122. David Herszenhorn, Residents of New London Go to Court, Saying Project Puts Profits Before Homes, N.Y. Times, Dec. 21, 2000, at B5.
123. See Linda Greenhouse, Justice Weighs Desire v. Duty (Duty Prevails), N.Y. Times, Aug. 25, 2005, at A1. This article discusses Justice Stevens's July 18, 2005, speech to the Clark County, Las Vegas Bar Association, in which he explained that although in his personal view New London was pursuing the wrong policy, because "the free play of market forces" was more likely to "produce acceptable results than the best-intentioned plans of public officials," he had to uphold the redevelopment plan in the Kelo case under the compulsion of precedent.
124. Id.
125. See Benjamin Cardozo, The Growth of the Law 66 (1924).
126. Fred Rodell, Goodbye to Law Reviews - Revisited, 48 Va. L. Rev. 279, 280 (1962).
127. See, e.g., Mathew O. Tobriner, Can Young Lawyers Reform Society Through the Courts? 47 Cal. St. B. J. 294, 298 (1972) (in this article the late Tobriner, a well-regarded associate justice of the California Supreme Court, calls for a "social revolution," no less, to be worked through the courts at the behest of young lawyers).
128. A perfect example of such judicial inconsistency is provided by the California Supreme Court. In County of Los Angeles v. Ortiz, 490 P.2d 1142 (Cal. 1971) the court expressed sympathy for the plight of a condemnee of modest means whose home was taken but his small equity was largely consumed by litigation expenses.
129. Id. at 1147 n.8, and accompanying text. The court insisted that in spite of the constitutional "just compensation" mandate (which was being denied to these condemnees by forcing them to accept net compensation that was concededly substantially less than the fair market value of their modest homes), it was precluded from awarding attorneys' or appraisers' fees to make the owners whole, because that power being entirely legislative in nature, could not be exercised by the court.
130. But in Serrano v. Priest, 569 P.2d 1303 (Cal.1977), the judicial power to award attorney's fees held to be nonexistent in Ortiz, materialized out of thin air and enabled the same court to award them to a more politically correct plaintiff who challenged the constitutionality of school financing through property taxation.
131. Lino A. Graglia, in Symposium: Has the Supreme Court Gone Too Far?, 11 Widener L. Rev. 59 (Oct. 2003).
132. 164 U.S. 112 (1896). Note that Fallbrook was not an eminent domain case as erroneously asserted in the Supreme Court's subsequent decisional law.
133. I offer the wit and wisdom of P. J. O'Rourke who observed: "The whole idea of our government is this: If enough people get together and act in concert, they can take something and not pay for it." P.J. O'Rourke, A Parliament of Whores, 232 (1991).
134. Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112 (1896).
135. For a more complete discussion of the Fallbrook decision, see Hortatory Fluff, supra, note 48.
136. 198 U.S. 361 (1905).
137. Id. at 369.
138. 164 U.S. at 151. The lower court somehow concluded that the effect of the imposition of the District's monetary assessment on Bradley's land amounted to a deprivation of her property without due process of law.
139. See id. at 114, 116.
140. 164 U.S. at 161.
141. 198 U.S. 361 (1905).
142. [I]n the Fallbrook case the question was whether the use of the water was a public use when a corporation sought to take land by condemnation under a state statute, for the purpose of making reservoirs and digging ditches to supply land owners with the water the company proposed to obtain and save for such purposes.
143. Clark, 198 U.S. 361, 369 (emphasis added).
144. 200 U.S. 527 (1906).
145. Clark, 198 U.S. at 369.
146. 125 S. Ct. at 2677-78 (Thomas, J., dissenting) (pointing out the imprecision of the majority's terminology equating "public use" with "public purpose," and perhaps even a "'Diverse and Always Evolving Needs of Society' Clause" made up by the majority).
147. Strickley, 200 U.S. at 532 (emphasis added).
148. 198 U.S. at 369-70 (emphasis added).
149. Id.
150. See, e.g., Bettina Boxall, Many Have Failed to Rescue the Boulevard, But a Man Who Helped Save Times Square Is ... Hoping for a Hollywood Revival, L.A. Times, May 11, 1998, at B8 (stating that "[m]any view proposed $385 million retail entertainment complex as key to success").
151. See, e.g., Jesus Sanchez, Hollywood's Star yet to Shine; Mega Complex at the Highlands Fails to Turn Around District as Lot Sits Empty and Office Vacancies Rise, L.A. Times, May 7, 2002, at C1 (stating that a "[m]ega complex at Highland fails to turn around district as lots sit empty and office vacancies rise").
152. See, e.g., Joseph Berger, Latino Merchants Warily Eye a New Mall, N.Y. Times, Feb. 12, 2006, at 30 (reporting that in Port Chester, New York, a new redevelopment-created mall is menacing the economic future of small businesses)
153. Gideon Kanner, Downtown LA. Is an Urban Myth: City Needs Vital Middle Class to Succeed, Daily News of L.A., Nov. 21, 1999, at Viewpoint Section (Noting that in Los Angeles, the long-delayed downtown Bunker Hill redevelopment project produced a number of new office buildings, but its partial success (some of the land condemned for it in the 1960s is still vacant) sucked the life out of Spring Street, known as "the Wall Street of the West" before the subsidized Bunker Hill project enticed its tenants to move away. Thus, the elimination of blight on Bunker Hill, created blight on Spring Street, suggesting again that there is no such thing as a free lunch.).
154. See generally Bernard I. Frieden & Lynn B. Sagalyn, Downtown, Inc. How America Rebuilds Cities (1989) (discussing the displacement caused by urban renewal from 1949 to 1963).
155. Hector Tobar, Suburban Rush Puts the Brakes on Motor City's Census Drive; Population: Detroit Loses Fight to Stay Above One Million Mark, One More Blow After Decades of Strife and Decay, L.A. Times, Mar. 29, 2001, at A1.
156. Linda Tucci, In the Arch's Shadow, Signs of Revival, N.Y. Times, Mar. 30, 2005, at C7.
157. Lisa Chamberlain, Cleveland Pulls Back from Edge, N.Y. Times, Sept. 28, 2005, at C9.
158. See Andrew Jacobs, A City Revived, But With Buildings Falling Right and Left, N.Y. Times, Aug. 30, 2000, at A14.
159. See Rosenthal & Rosenthal v. N.Y. State Urb. Dev. Corp., 605 F. Supp. 612, 618 (S.D.N.Y. 1985),
160. aff'd, 771 F.2d 44 (2d Cir. 1986) (court refused to address the condemnees' charges that the redevelopment project boundaries had been corruptly drawn to include the subject property and enrich the mayor's political allies).
161. In re Fisher, 730 N.Y.S.2d 516 (App. Div. 2001). Actually, the NYSE-city deal came unraveled after 9/11, with the city having to pay some $109 million in its effort to undo the arrangement it had entered into with NYSE and the owners of the proposed new NYSE building site.
162. Charles V. Bagli, 45 Wall St. Is Renting Again Where Tower Deal Failed, N.Y. Times, Feb. 8, 2003, at B3.
163. Charles V. Bagli, Bank Is Close to a Deal for a Tower off Times Square, N.Y. Times, May 27, 2003, at A24
164. see Charles V. Bagli, Big Projects Are Slowed by Disputes with Labor, N.Y. Times, Jul. 12, 2005, at B4.
165. W. 41st St. Realty LLC v. N.Y. State Urb. Dev. Corp. 744 N.Y.S.2d 121 (App. Div. 2002).
166. See Steven Ohlemacher, Inner Cities Continue to Hemorrhage Jobs, Yahoo! News, Nov. 28, 2005, http://news.yahoo.com/s/ap/20051128/ ap_on_go_city_jobs&printer=1;_y1t=Ai5H (last visited Feb. 20, 2006).
167. See Charles W. Hartman, Relocation: Illusory Promises and No Relief, 57 VA. L. Rev. 745, 745-46 (1971), noting that between 1950 and 1968, 2.38 million housing units were destroyed by redevelopment. By the mid-1960s, some 111,000 families and 17,800 businesses were being displaced annually.
168. Advisory Committee on Intergovernmental Relations, Relocation: Unequal Treatment of People and Business Displaced by Government, (1965).
169. See Municipal Officials [California] for Redevelopment Reform, Redevelopment: The Unknown Government (2004), at 6-9, http://missionviejoca.org/rug-2004.pdf [hereinafter MORR] (last visited Feb. 20, 2006) (recounting the massive diversion of municipal funds to redevelopers, and noting a skyrocketing increase in California's bonded redevelopment indebtedness - from $5 billion to $65 billion between 1995 and 2003; id. at 12). Tax revenue diversion is only a part of the story. In Kelo, the redeveloper was granted a ninety-nine-year lease on a ninety-acre waterfront parcel for a rent of $1 per year. Sweetheart deals like that are common. id. at 12). Tax revenue diversion is only a part of the story. In Kelo, the redeveloper was granted a ninety-nine-year lease on a ninety-acre waterfront parcel for a rent of $1 per year. Sweetheart deals like that are common
170. See David Brooks, A Nation of Villages, N.Y. Times, Jan. 19, 2006, at A27
171. Motoko Rich & David Leonhardt, Shaking off the Rust/New Suburbs Are Born, N.Y. Times, Dec. 22, 2005, at F1 (reporting that under the relentless pressure of rising desirable urban housing cost, city dwellers are moving beyond the exurban fringe in search of affordable housing)
172. Julia Vitullo-Martin, Landmark This?, N.Y. Post, Oct. 2, 2005, available at http://www.manhattan-institute.org/html/_nypost-landmark_this.htm (commenting on the practice of stretching landmark designation laws beyond the bounds of reason in order to prevent construction of new, badly needed housing) (last visited Feb. 20, 2006).
173. 431 U.S. 1 (1977).
174. Id. at 25-26.
175. See City of Boeme v. Flores, 521 U.S. 507, 529 (1997).
176. Id. at 519.
177. Id. at 529.
178. For an egregious example of this unfortunate judicial attitude, see Yonkers Cmty. Dev. Agency v. Morris, 335 N.E.2d 327, 334 (N.Y. 1975) (chastising Mr. Morris for his insistence that his conceded rights be observed).
179. Morris is commented on in Sonya Bekoff Molho & Gideon Kanner, Urban Renewal: Laissez-Faire for the Poor, Welfare for the Rich, 8 Pac. L.J. 627, 636-39 (1977). Though Mr. Morris' procedural rights were concededly violated, out of twelve judges who reviewed his case, only one intermediate appellate judge thought that he should get so much as a hearing on his objections to the taking of his property for the benefit of Otis Elevator Co.
180. See Yonkers Cmty. Dev. v. Morris, 357 N.Y.S.2d 887, 890-91 (App. Div. 1974). As it turned out, Mr. Morris was right and the court was wrong; the taking turned out to be of no "public benefit" to the city because a few years later Otis shut down its Yonkers plant and moved elsewhere.
181. See Kelo, 125 S. Ct. at 2668.
182. For the extent to which state legislatures have responded to Kelo, see Donald E. Sanders & Patricia Pattison, The Aftermath of Kelo, 34 Real Est. L.J. 157, 171-75 (canvassing all states for post-Kelo legislation being introduced to rectify its holding). For continuous update on the state of local and state legislation, see http://castlecoalition.org/ legislation/index.asp (last visited Feb. 20, 2006).
183. People v. Chevalier, 340 P.2d 598 (Cal. 1959)
184. see also Albers v. County of Los Angeles, 398 P.2d 129, 136 (Cal. 1965)
185. (quoting Bacich v. Bd. of Control, 144 P.2d 818, 823 (Cal. 1943), which states that "fears have been expressed that compensation allowed too liberally will seriously impede, if not stop, beneficial public improvements because of the greatly increased cost." The court gave no indication as to who was expressing those "fears," on the basis of what evidence, and whether the "fears" had any substance). Note that outside of eminent domain, courts take the position that imposing liability on the government is a good thing because it provides disincentives to government officials' unlawful acts.
186. Johnson v. State, 447 P.2d 352, 358 (Cal. 1968)
187. see also, Owen v. City of Independence, 445 U.S. 622, 652 (1980) (stating that government liability may encourage greater protection of constitutional rights). No judicial fears of an "embargo" in those cases.
188. See generally Connor v. Great Western Savings & Loan Ass'n, 447 P.2d 609, 618 (Cal. 1968) (dismissing concerns that imposition of novel liability on lenders for defective construction of homes financed by them would be overly expensive, with a single brief sentence: Τhese are conjectural claims." The dreaded "embargo" only appears to rear its menacing head when condemnees ask for the constitutionally promised just compensation that in theory is supposed to put them in the same position pecuniarily they would have been in absent the condemnation)
189. Olson v. United States, 292 U.S. 246, 255 (1934) (discussing the value of property at the time of a taking and constitutional safeguards of compensation). But when the shoe is on the other foot, and condemnees correctly point out that condemnors are wasting large sums of money taking land on projects that cannot be built, courts voice no concerns about any adverse impact on the fisc, and approve such wasteful takings.
190. But when the shoe is on the other foot, and condemnees correctly point out that condemnors are wasting large sums of money taking land on projects that cannot be built, courts voice no concerns about any adverse impact on the fisc, and approve such wasteful takings. 189 For an example, see Thomas J. Posey, Note, This Land Is My Land: The Need for a Feasibility Test in Evaluation of Takings for Public Necessity, 78 Chi. Kent L. Rev. 1403 (2003). condemnors are wasting large sums of money taking land on projects that cannot be built, courts voice no concerns about any adverse impact on the fisc, and approve such wasteful takings. For example
191. See City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (the legislature determines "in the first instance ... whether and what legislation is needed ... and its conclusions are entitled too much deference." But the legislative discretion is subject to judicial review under Marbury v. Madison that grants the courts the power to determine whether the legislature has exceeded its authority under the Constitution). It seems plain to say, if only in the context of eminent domain law, that the legislative determination is "well nigh conclusive" on the meaning of the constitutional term "public use," contradicts this basic principle.
192. See James Geoffrey Durham, Efficient Just Compensation as a Limit on Eminent Domain, 69 Minn. L. Rev. 1277 (1985).
193. Joel Kotkin, The New Suburbanism: A Realist's Guide to the American Future, The Planning Center, 9-20 (2005), available at http://joelkotkin. com/urban_affairs/the%20Suburbanism.pdf (last visited Feb. 20, 2006)
194. see David Brooks, A Nation of Villages, N.Y. Times, Jan. 19, 2006, at A23 ("The flow of people moving into the cities is but a trickle compared with the torrent moving to exurbia.").
195. As National Journal's Stuart Taylor, Jr., put it: "The Supreme Court's greatest failure is not ideological bias. It's the Justices' increasingly tenuous grasp of how the real world works." Stuart Taylor, Jr., Remote Control: The Supreme Court's Greatest Failure Is Not Ideological Bias - It's the Justices' Increasingly Tenuous Grasp of How the Real World Works, Atlantic Monthly, Sept. 2005, at 37.
196. William Yardley, After Eminent Domain Victory, Disputed Project Goes Nowhere, N.Y. Times, Nov. 21, 2005, at A1.
197. Id.
198. Id.
199. see, e.g., Ted Mann, Fort Trumbull: City Still Unsure Where Governor Rell Stands on Plan, the day (New London), Dec. 30,2005
200. Ted Mann, Fort Trumbull Deal Gives Museum New Site, The day, Dec. 30, 2005.
201. It would take us beyond the scope of this article to explore the subject in detail, but one should mention the familiar rule of eminent domain law that once title to the condemned land is transferred to the condemning agency, the latter may do as it pleases with the acquired land, the same as any other land owner, irrespective of its plans and promises at the time of acquisition. See, e.g., Capron v. State, 247 Cal. App. 2d 212 (Cal. Ct. App. 1964) (land taken for a mental hospital that was never built)
202. County of Los Angeles v. Anthony, 224 Cal. App. 2d 103 (Cal. Ct. App. 1964) (land across the street from the Hollywood Bowl taken for a county motion picture museum that was never built)
203. Arechiga v. Housing Auth., 324 P.2d 973 (Cal. Ct. App. 1958) (land of poor Mexican homeowners was taken ostensibly for public housing, but later turned over to the Brooklyn Dodgers for a baseball stadium to induce them to move to Los Angeles)
204. Levine v. Jessup, 326 P.2d 238 (Cal. Ct. App. 1958) (land taken for construction of a new domestic relations courthouse that was never built)
205. see also Beistline v. San Diego, 256 F.2d 421 (9th Cir. 1958) (land taken for redevelopment not used for the project but sold to a private party instead).
206. In short, the Supreme Court relied on the city's representations as to its plans for the Fort Trumbull area, bowing to "predictive judgments" of "expert agencies," but it failed to realize that those "judgments" have all the substance of cotton candy. The Court was simply demonstrating its lack of understanding of the reality that redevelopment plans are not enforceable and not worth the proverbial paper they are written on when it comes to their implementation after the condemnation process is complete. Whatever they may tell the courts, redevelopment agencies are free to disregard their vaunted "plans," and do with the acquired land whatever they please. Kelo, 125 S. Ct. at 2665, 2667
207. see Jonathan V. Last, Razing New Jersey, in Which Developers in League with City Hall Have Come up with a Curious Definition of Blight, Weekly Standard, Feb. 13, 2006, vol. 11, issue 21, at Features Section.