Planning as public use?

Ecology Law Quarterly

Volumn 34, Issue 2, 2007, Pages 443-469

  Garnett, Nicole Stelle ^a,b  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b NOTRE DAME LAW SCHOOL   (United States)

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EID: 36248932547     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (152)

1. 545 U.S. 469 (2005).
2. 348 U.S. 26 (1954).
3. 467 U.S. 229 (1984).
4. See, e.g., Castle Coalition, Legislative Center, http://www.castlecoalition.org/legislation/ (last visited Mar. 6,2007) (describing state and federal legislative efforts).
5. See Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 MICH. L. REV. 101 (2006).
6. See Brief of Respondent at 1, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108), 2005 U.S. S. Ct. Briefs LEXIS 273 (noting that in 1990, the Connecticut Office of Planning and Management designated New London a "distressed municipality").
7. Kelo v. City of New London, 545 U.S. 469, 473 (2005).
8. See Brief of Petitioners at 4-5, Kelo, 545 U.S. 469 (No. 04-108), available at http://supreme.lp.findlaw.com/supreme_court/briefs/ 04-108/04-108.mer.pet.pdf (characterizing Pfizer as the "10,000 pound gorilla" and noting that the plan incorporated all of Pfizer's "conditions" were incorporated into the plan); see also infra notes 1188-124 and accompanying text.
9. See Brief of Respondent, supra note 6, at 5-6, 9.
10. See Kelo, 545 U.S. at 474.
11. See id. at 473-75.
12. See Brief of Respondent, supra note 6, at 7.
13. See id. at 9.
14. See Brief of Petitioners, supra note 8, at 7.
15. See id. at 9.
16. Kelo v. City of New London, 545 U.S. 469, 484 (2005).
17. Haw. Hous. Auth. v. Midkiff, 467 U.S. 229 (1984).
18. Berman v. Parker, 438 U.S. 26 (1954).
19. Kelo, 545 U.S. at 477; see also Midkiff, 467 U.S. at 245 ("A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose and would thus be void.").
20. See, e.g., Kelo, 545 U.S. at 483 ("The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community.").
21. See id. at 478.
22. Id. at 486-87.
23. Id. at 493 (Kennedy, J., concurring).
24. Id.
25. Id.
26. Armstrong v. United States, 364 U.S. 40, 49 (1960); accord Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) (quoting Armstrong, 364 U.S. at 49); Pennell v. City of San Jose, 485 U.S. 1, 9 (1988); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 836 (1987); Bowen v. Gilliard, 483 U.S. 587, 608 (1987); First Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304, 318-19 (1987); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 123 (1978); see also William Michael Treanor, The Armstrong Principle, the Narratives of Takings, and Compensation Statutes, 38 WM. & MARY L. REV. 1151 (1997).
27. See generally Glynn S. Lunney, Jr., Compensation for Takings: How Much Is Just?, 42 CATH. U. L. REV. 721, 747 (1993) (noting that the Armstrong principle has become part of the "ritual litany" employed in takings cases);
28. Thomas W. Merrill, Dolan v. City of Tigard: Constitutional Rights as Public Goods. 72 DENV. U. L. REV. 859, 880 n.100 (1995) (observing that the statement in Armstrong "has taken on the quality of a canonical recitation").
29. See Penn Central, 438 U.S. at 147 (Rehnquist, J., dissenting). On the "singling out" problem in takings law, see Saul Levmore, Takings, Torts, and Special Interests, 77 VA. L. REV. 1333, 1344 (1991).
30. Penn Central, 438 U.S. at 132.
31. See Tahoe Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002).
32. See id. at 329-32 (refusing to apply categorical takings analysis adopted in Lucas v. South Carolina Coastal Commission to temporary moratoria); see also id. at 336-40 (stressing the importance of comprehensive land use planning devices, including moratoria).
33. Berman v. Parker, 348 U.S. 26, 30 (1954).
34. Id. at 34-35.
35. Id. at 32 ("We deal, in other words, with what has traditionally been known as the police power."); see also id. at 33 ("Once the object is within the authority Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end."); Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 240 (1984) ("The 'public use' requirement is thus coterminous with the scope of a sovereign's police powers.").
36. See, e.g., David A. Dana, Land Use Regulations in an Age of Heightened Scrutiny, 75 N.C. L. REV. 1243, 1253-54 (1997) (describing the "bottom-line dynamics" of rational basis review in land use context: "Local governments won, aggrieved property owners lost.").
37. See Midkiff, 467 U.S. at 241 ("[W]here the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.").
38. Id.
39. Id. (quoting United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668, 680 (1896).
40. Berman v. Parker, 348 U.S. 26, 32 (1954); see also Midkiff, 467 U.S. at 239 (quoting Berman, 348 U.S. at 32).
41. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 134 (1978) (articulating factors relevant for determining whether a regulatory taking has occurred, including "the economic impact of the regulation on the claimant" and "the character of the governmental action"); Dolan v. City of Tigard, 512 U.S. 374, 391 (1994) (requiring government to demonstrate "rough proportionality" in regulatory exactions, i.e., that they are "related both in nature and extent to the impact of the proposed development").
42. RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 162 (1985).
43. See Kelo v. City of New London, 545 U.S. 469, 488 (2005) ("[W]e decline to second guess the City's considered judgments about the efficacy of its development plan.").
44. See 6 JULIUS L. SACKMAN, NICHOLS ON EMINENT DOMAIN ¶ 24.05[1] (2006) (noting prevalence of judicial model in states); see also FED. R. CIV. P. 71A (2002) (setting forth procedure for condemnations in federal courts). In a few states, takings may be effected administratively, by the passage of an ordinance or resolution to take certain designated land and award compensation to the owners. See SACKMAN, supra, ¶ 24.04.
45. Such prerequisites include, for example, the requirement in most states that the condemnor attempt to purchase the property before instituting a condemnation. See id. ¶ 26A.02[1].
46. See id.
47. See id. ¶ 26A.02[1], nn.5 & 24.
48. See Allegheny Pittsburgh Coal v. County Comm'n, 488 U.S. 336 (1989).
49. Id. at 341.
50. 505 U.S. 1 (1992).
51. Id. at 15 (internal quotations and citations omitted).
52. 337 U.S. 562 (1949).
53. Nordlinger, 505 U.S. at 16 n.7 (quoting Allied Stores of Ohio v. Bowers, 358 U.S. 522, 530 (1959)).
54. See, e.g., Kelo v. City of New London, 545 U.S. 469, 477 (2005) ("[T]he City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party."); Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984) ("To be sure, the Court's cases have repeatedly stated that 'one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid.'") (quoting Thompson v. Consol. Gas Corp., 300 U.S. 55, 80 (1937)); id. at 245 ("A purely private taking could not withstand the scrutiny of the public use clause; it would serve no legitimate purpose of government and would thus be void.").
55. 544 U.S. 528, 531 (2005) (quoting Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)).
56. See id. at 543.
57. See Kelo, 545 U.S. at 488.
58. McCulloch v. Maryland, 17 U.S. 316, 423 (1819).
59. See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 650-56 (1966) (applying McCulloch's reasoning); City of Boerne v. Flores, 521 U.S. 507, 532 (1997) ("RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior."); ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 414-18 (2d ed. 2002) (discussing review of facially neutral laws in dormant commerce clause cases).
60. Kelo v. City of New London, 545 U.S. 469, 478 (2005); see also id. at 491 (Kennedy, J., concurring) ("A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular party, with only incidental or pretextual public justifications.").
61. Id. at 478 (majority opinion); see also id. at 493 (Kennedy, J., concurring) (arguing that a presumption of invalidity was inappropriate because "[t]his taking occurred in the context of a comprehensive development plan").
62. Id. at 500 (Kennedy, J., concurring) (quoting Berman v. Parker, 348 U.S. 26, 32 (1954)); see also Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 240 (1984) (quoting Berman).
63. See Castle Coalition, supra note 4 (tracking eminent domain reform in state and federal legislatures).
64. See County of Wayne v. Hathcock, 684 N.W.2d 765, 770 (Mich. 2004) (invalidating economic development takings on state constitutional grounds); City of Norwood v. Horney, 853 N.E.2d 1115, 1123 (Ohio 2006) (holding that Ohio Constitution prohibits use of eminent domain solely to promote economic development).
65. 237 F. Supp. 2d 1123, 1129 (C.D. Cal. 2001).
66. Id. at 1126-27.
67. Id. at 1126.
68. Id. at 1129 (emphasis added).
69. Id.
70. Id. at 1130.
71. 768 N.E.2d 1 (Ill. 2002). The opinion reversed an earlier decision upholding the condemnation. No. 87809, 2001 Ill. LEXIS 478 (Ill. Apr. 19, 2001), vacated and reh'g granted, 748 N.E.2d 194 (Ill. 2001).
72. See SWIDA, 768 N.E.2d at 4.
73. Id. at 10.
74. Id. at 4-6.
75. Id. at 10.
76. 892 A.2d 87 (R.I. 2006).
77. Id. at 91-95.
78. Id. at 106.
79. Id.
80. See AM General: Corporate History, http://www.amgeneral.com/ corporate_history.php (last visited Mar. 6, 2007).
81. Interview with Craig MacNab, Dir. of Pub. Relations, AM General, in South Bend, Ind. (July 8, 2005) [hereinafter McNab Interview]; see also Anita Munson, Concrete Poured for Plant, SOUTH BEND TRIB., Aug. 16, 2000, at B8.
82. McNab Interview, supra note 799; see also Munson, supra note 79.
83. Interview with Patrick McMahon, Exec. Dir., ProjectFuture, in South Bend, Ind. (July 29,2005) [hereinafter McMahon Interview].
84. Id.
85. See Deanna McCool, 2 Owners Find AM General Deal Fair, SOUTH BEND TRIB., Mar. 29, 2000, at D1 (noting that "17 homeowners . . . file[d] a remonstrance opposing a blight designation for the area").
86. See Rick Thackery, Proposed Hummer Plant Raises Eminent Domain Questions, IND. LAW., Mar. 29, 2000, at 6.
87. See id.
88. Before condemning the properties, the County also would have had to declare them "blighted," which undoubtedly would strengthen the constitutional case. McMahon Interview, supra note 81.
89. See Jack Colwell, Homeowners Near Plant Get More Time: Company Says Project Will Proceed, SOUTH BEND TRIB., Feb. 23,2000, at A1.
90. See Kelo v. City of New London, 545 U.S. 469, 491-92 (2005) (Kennedy, J., concurring) (discussing factors that may raise suspicion of pretext). On economic development in St. Joseph County, Indiana, see Project Future, http://www.projectfuture.org/ (last visited Mar. 6, 2007).
91. See, e.g., W. Seafood Co. v. United States, 202 F. App'x 670 (5th Cir. 2006) (rejecting property owner's claim that asserted public purpose was pretextual because the extensive pretakings planning paralleled New London's efforts in Kelo).
92. See Declarations of Taking Act, 40 U.S.C. §§ 3114-3115 (2006); SACKMAN, supra note 42, ¶ 24.10. The standard quick-take procedure requires the condemner to file a "declaration of taking" as well as deposit of the appraised fair market value of the property with the court. See SACKMAN, supra note 42, ¶ 24.10.
93. SACKMAN, supra note 42, ¶ 24.10[2].
94. 135 U.S. 641 (1890).
95. Id. at 658-59 ("The Constitution declares that private property shall not be taken 'for public use without just compensation.' It does not provide or require that compensation be actually paid in advance of the occupancy of the land to be taken.").
96. See, e.g., Bragg v. Weaver, 251 U.S. 57, 58-59 (1919); Sweet v. Rechel, 159 U.S. 380, 400-03 (1894).
97. See, e.g., United States v. Salerno, 481 U.S. 739 (1987). The Selamo Court held: A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.
98. Id. at 745.
99. Zinermon v. Burch, 494 U.S. 113,132 (1990); accord Parratt v. Taylor, 451 U.S. 527, 541 (1981) (rejecting demand for pre-deprivation hearing because it is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place). Furthermore, in a situation analogous to the taking of property by eminent domain, the Supreme Court invalidated on due process grounds state laws permitting the replevin of personal property prior to a pre-confiscation hearing, Fuentes v. Shevin, 407 U.S. 67 (1972), although lower courts have rejected efforts to extend this rule to invalidate quick-take eminent domain procedures. See Wash. Metro. Area Transit Auth. v. One Parcel of Land, 706 F.2d 1312 (4th Cir. 1983); Vazza v. Campbell, 520 F.2d 848 (1st Cir. 1975); Joiner v. City of Dallas, 380 F. Supp. 754 (N.D. Tex.), aff'd, 419 U.S. 1042 (1974).
100. See Garnett, supra note 5.
101. See, e.g., James G. Durham, Efficient Just Compensation as a Limit on Eminent Domain, 69 MINN. L. REV. 1277, 1305-06 (1985) (arguing that eminent domain results in high demoralization costs because it pits individuals against the state); see also Levmore, supra note 27, at 1344 (articulating "singling out" as basis for compensation);
102. Glynn S. Lunney, Jr., A Critical Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892 (1992) (greater scrutiny needed when concentrated groups impose costs on individuals); Merrill, supra note 26, at 880 (arguing that "fair share" justification for regulatory takings reflects principle that the Takings Clause prohibits "spot" redistribution).
103. On expressivism, see, e.g., Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1528 (2000) ("A person suffers expressive harm when she is treated according to principles that express negative or inappropriate attitudes toward her.").
104. See Eleanor Charles, Eminent Domain Challenged in New London Project, N.Y. TIMES, Apr. 1, 2001, at 9 (describing residents' reactions to New London, Connecticut eminent domain and commercial development);
105. Sylvian Metz, Family Awarded for Nissan Land Battle, CLARION-LEDGER (Jackson, Miss.), Mar. 31, 2003, at 1B (describing residents' reactions to Canton, Mississippi eminent domain and commercial development).
106. James E. Krier & Christopher Serkin, Public Ruses, 2004 MICH. ST. L. REV. 859, 867-69.
107. See Olson v. United States, 292 U.S. 246, 256 (1934) ("[V]alue to be ascertained does not include, and the owner is not entitled to compensation for any element resulting subsequently to or because of the taking."); EPSTEIN, supra note 40, at 163-64 (questioning division on fairness grounds); Thomas W. Merrill, The Economics of Public Use, 72 CORNELL L. REV. 61, 85 (1986) (noting that "eminent domain almost always generates a surplus" which is awarded solely to the condemnor); cf. United States v. Miller, 317 U.S. 369, 377 (1943) ("The owners ought not to gain by speculating on probable increase in value due to the Government's activities.").
108. Abraham Bell & Gideon Parchamovsky, Givings, 111 YALE L. J. 547, 579 (2002).
109. See Jody Freeman & Laura I. Langbein, Regulatory Negotiation and the Legitimacy Benefit, 9 N.Y.U. ENVTL. L. J. 60, 62, 67, 80, 109-10 (2000) (discussing comprehensive study of EPA's negotiated rulemaking process, which found that negotiations reduce conflict and increase participant satisfaction and commitment to results).
110. But see Cary Coglianese, Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, 46 DUKE L.J. 1255 (1997) (providing empirical account that regulatory negotiations neither reduces rulemaking time nor post-rulemaking litigation);
111. cf. Philip J. Harter, Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9 N.Y.U. ENVTL. L.J. 32 (2000) (disputing Coglianese's methodology and findings).
112. See generally Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 89 (1995) (arguing for reforms "enhancing public involvement in the regulatory process, largely in order to build trust").
113. See GERALD E. FRUG, CITY MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS 162 (1999).
114. See, e.g., Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1554 (1988) (discussing literature).
115. See, e.g., William J. Brennan, Reason, Passion and the "Progress of the Law," 10 CARDOZO L. REV. 3, 19-20 (1988) (arguing that post-termination hearing may not adequately protect dignitary interests);
116. Frank Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One's Rights, 1973 DUKE L.J. 1153 (identifying, among purposes of hearing requirement, "dignity values," including "concern for the humiliation or loss of self-respect which a person might suffer if denied an opportunity to litigate," and "participation values," such as "an appreciation of litigation as one of the modes in which persons exert influence or have their wills 'counted'").
117. See generally JERRY MASHAW, DUE PROCESS IN THE ADMINISTRATIVE STATE 222-53 (1985).
118. Saul Levmore, Just Compensation and Just Politics, 22 CONN. L. REV. 285, 309 (1990).
119. Carol M. Rose, Takings, Federalism, Norms, 105 YALE L.J. 1121, 1143 (1996) (reviewing WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS (1995)).
120. See, e.g., Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 345 (1996) (describing the "independence argument" for property).
121. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982) ("[T]he landowner's right to exclude [is] 'one of the most essential sticks in the bundle of rights characterized as property.'") (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)); see also Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) (quoting Kaiser Aetna, 444 U.S. at 176); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831 (1987) (quoting Loretto, 458 U.S. at 433).
122. 545 U.S. 469, 503. (O'Connor, J., dissenting); see also William A. Fischel, The Political Economy of Public Use in Poletown: How Federal Grants Encourage Excessive Use of Eminent Domain, 2004 MICH. ST. L. REV. 929, 949 ("Expansion of eminent domain's scope raises the anxiety that even more uses will soon be found, and no one's property will be safe.").
123. See Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455, 467 (Mich. 1981) (Ryan, J., dissenting), overruled by County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004).
124. See, e.g., Peter D. Enrich, Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business, 110 HARV. L. REV. 377, 382-89 (describing common incentives);
125. Clayton P. Gillette, The Law and Economics of Federalism: Business Incentives, Interstate Competition, and the Commerce Clause, 82 MINN. L. REV. 447, 479 (1997) (describing common incentives);
126. Michael H. Schill, Deconcentrating the Inner City Poor, 67 CHI.-KENT L. REV. 795, 809-10 & n.73 (1991) (discussing enterprise zones, tax abatements and exemptions, subsidized loans and industrial revenue bonds).
127. Government incentives for development are hardly a new phenomenon, see OSCAR HANDLIN & MARY FLUG HANDLIN, COMMONWEALTH (rev. ed. 1969) (describing early state development policies),
128. but the diversity of the subsidy methods and the amount of money offered appear to have crested during the past two decades, see KENNETH THOMAS, COMPETING FOR CAPITAL: EUROPE AND NORTH AMERICA IN A GLOBAL ERA 159 (2000) (estimating that total subsidies from state and local governments now exceed $50 billion annually); Enrich, supra, at 386-87.
129. See. e.g., EPSTEIN, supra note 40, at 161-81; Merrill, supra note 102, at 85-87.
130. See ROBERT G. DREHER & JOHN D. ECHEVERRIA, KELO'S UNANSWERED QUESTIONS: THE POLICY DEBATE OVER THE USE OF EMINENT DOMAIN FOR ECONOMIC DEVELOPMENT 20-21, 24-25 (2006) (suggesting that careful planning will forestall capture by the would-be recipients of property seized by eminent domain);
131. AM. PLANNING ASS'N, POLICY GUIDE ON PUBLIC REDEVELOPMENT 13 (2004) (arguing that "an open and inclusive public participation process will prevent the frequent accusations of secret government maneuverings and developer favoritism that often plague redevelopment programs");
132. John D. Echeverria, The Triumph of Justice Stevens and the Principle of Generality, 7 VT. J. ENVTL. L. 22 (2005-2006), available at http://www.vjel.org/articles/pdf/ sorryforthepdf5.pdf (arguing that the "generality" of New London's development plan safeguards against "faction" and "singling out").
133. Daniel A. Farber, Public Choice and Just Compensation, 9 CONST. COMMENT. 279, 289 (1992).
134. See, e.g., Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385, 408-10 (1977) (describing model).
135. See generally WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS 72-97 (2001); NEIL K. KOMESAR, LAW'S LIMITS: THE RULE OF LAW AND THE SUPPLY AND DEMAND OF RIGHTS 60-70 (2001) (describing "two force model of politics" in the land use planning context, which is characterized by both "fear of the few" and "fear of the many").
136. Ellickson, supra note 118, at 409; see also FISCHEL, supra note 119, at 90-94.
137. See BERNARD J. FRIEDAN & LYNNE B. SAGALYN, DOWNTOWN, INC.: HOW AMERICA REBUILDS CITIES, ch. 7 (1989) (describing modern day redevelopment efforts as a "dealmaking" process).
138. Brief of Petitioners, supra note 8, at 4-5 (quoting Respondent's expert).
139. Id. at 5.
140. See Gideon Kanner, Kelo v. New London; Bad Law, Bad Policy, Bad Judgment, 38 URB. LAW. 201, 203 (2006) (arguing that "all the condemning municipality needs to do now is proffer self-manufactured plans for the proposed taking");
141. Douglas W. Kmiec, The Human Nature of Freedom and Identity - We Hold More than Random Thoughts, 29 HARV. J.L. & PUB. POL'Y 33, 45-46 (2005) (characterizing New London's development as "capture" by Pfizer and criticizing Court's reliance on "planning and town meetings" to prevent oppression by factional interests).
142. See, e.g., AM. PLANNING ASS'N, supra note 1166; DOWNTOWNS: REVITALIZING THE CENTERS OF SMALL URBAN COMMUNITIES (Michael A. Burayidi ed., 2001).
143. See, e.g., Freeman & Langbein, supra note 1044, at 88 (finding that regulatory negotiations generally improved quality of information available);
144. see also Alejandro Esteban Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community In volvement and A daptive Planning in Land Use Decisions, Installment 2, 24 STAN. ENVTL. L.J. 269, 309 (2005) (arguing that participatory planning has the "potential to generate land use agreements that are more legitimate and higher-quality - namely, fairer, better planned and more efficient.").
145. See Lyman Brownfield, The Disposition Problem in Urban Renewal, 25 LAW & CONTEMP. PROBS. 732 (1960). On the failure of urban renewal, see generally Schill, supra note 1144, at 808-09 ("The number of jobs created and amount of private sector investment generated by the program were below the hopes and expectations of its proponents. Furthermore, the human toll caused by displacement and the destabilization of nearby residential communities casts doubt on the efficacy of subsidized site assembly . . . .");
146. Nicole Stelle Garnett, The Public-Use Question as a Takings Problem, 71 G.W. L. REV. 934, 954-55 (2003) (discussing literature on urban renewal).
147. See Peter Hall, The Turbulent Eighth Decade: Challenges to American City Planning, 55 J. AM. PLANNING ASS'N 275 (1989).
148. See generally FRIEDAN & SAGALYN, supra note 1211, at 171-239 (discussing the debate over the "downtown mall" phenomenon). Cf. Kirk Johnson, A Plan Without a Master-Rebuilding by Committee? Robert Moses Would Cringe, N.Y. TIMES, Apr. 14, 2002, at 35 (discussing negatives of the "democratization" of urban planning in context of "Ground Zero" redevelopment).
149. See generally John P. Elwood, Rethinking Government Participation in Urban Renewal: Neighborhood Revitalization in New Haven, 12 YALE L. & POL'Y REV. 138 (1994) (describing the history of failed redevelopment efforts).
150. Id. at 177-78; see also, e.g., City of Buffalo v. George Irish Paper Co., 299 N.Y.S.2d 8, 14 (N.Y. App. Div. 1969), aff'd, 26 N.Y.2d 869 (1970) (holding that "cloud of condemnation" resulting from a redevelopment proposal effected a de facto taking of property; plaintiff's tenants refused to renew leases after learning of the plans).
151. This problem is pervasive enough that courts have developed the doctrine of "condemnation blight" to deal with it. See 4 JULIUS L. SACKMAN, NICHOLS ON EMINENT DOMAIN ¶ 12B.17[6] (2006) (defining condemnation blight as the "debilitating effect upon value of a threatened, imminent or potential condemnation").
152. See, e.g., Elwood, supra note 130, at 179 (discussing business failure); Peter W. Salsich, Jr., Displacement and Urban Reinvestment: A Mount Laurel Perspective, 53 U. CINN. L. REV. 333, 371 (1984): Perhaps the major moral issue is the basic question of whether it is morally acceptable for society to allow a poor person to be forced from his home in order to bring new investment and new people into a particular neighborhood. We have been doing that for at least forty years, but the question does not go away.