Eminent Domain

Question 1

Government Forbearance

Answer 1

• government flexibility vs. precommitment (would mean the gov lets people do their own thing with their property)

Question 2

Basic Concept of Eminent Domain

Answer 2

• government can appropriate property for public use upon payment of just compensation
  CORE REQUIREMENTS:
• Public use
• Just compensation

Question 3

Holdouts

Answer 3

• the problem eminent domain is designed to solve
• notion that eminent domain is cumbersome + govs typically purchase property when they can, but eminent domain allows them to assemble property where it would otherwise be difficult

Question 4

Fifth Amendment

Answer 4

• nor shall private property be taken for public use without just compensation
• applies directly to the federal government, and applies to the states via the Fourteenth Amendment

Question 5

Public Use - General

Answer 5

• promotes security of property rights by limiting the use of compulsory acquisitions to circumstances of public need
• by limiting scope of compulsory acquisitions, promotes stability of ownership + allows people to make long-range plans for development + use of property

Question 6

Public Use - SCOTUS

Answer 6

• SCOTUS has traditionally given public use requirement a weak interpretation
• generally says public use = public interest ->gov can take property as long as it can cite some public-regarding rationale for the taking (doesn’t matter if property ends up in hands of gov or whether the public can actually use it)
• has also given great deference to legislative + administrative determinations of when property should be taken

Question 7

Kelo v. City of New London - Background

Answer 7

• New London designated as distressed municipality by state agency in 1990
• Pfizer purchased abandoned property on the waterfront + was using the site to build a new research facility

Question 8

Kelo v. New London - Facts

Answer 8

• New London wanted to acquire large tract next to Pfizer facility -> plan was to level virtually all buildings in the area + transfer to private developer for mixed-use project
• project would include some traditional public uses (marina, walkway, + Coast Guard Museum) but most would be used for hotel, commercial office buildings, + 80 new residences (built and marketed by developer)
• projected more than 1000 jobs, increased tax revenue, + revitalized economy
• ten owners of fifteen properties refused to sell -> city instituted eminent domain

Question 9

Kelo v. New London - Procedural Posture

Answer 9

• the holdouts argued the taking wasn’t for public use b/c primary beneficiary would be as yet-to-be-determined real estate developer + there was uncertainty about whether the project would ever achieve its stated goal of revitalizing the New London economy

Question 10

Kelo v. New London - Majority Opinion

Answer 10

• use by the public not required -
• Takings Clause prohibits use for purely private purpose, BUT no categorical constitutional rule against using eminent domain to promote economic development
• economic development = legitimate government purpose, + decision whether to use eminent domain to achieve any legitimate government purpose largely left to elected representatives
• record showed bona fide effort to promote economic development, not merely pretext for private gain
• economic regulation gets deferential review

Question 11

Kelo v. New London - Kennedy Concurrence

Answer 11

• emphasis on non-targeting and procedure
• looking at who the policy benefits + to what extent - not okay if intended to confer benefits on particular, favored private parties + only incidentally on public
• reads prior precedents as calling for heightened rational basis scrutiny into whether the taking just pretext to benefit private party -> says record shows that even though Pfizer most likely beneficiary, record shows this isn’t just a pretext to pay off Pfizer for locating in the city

Question 12

Kelo v. New London - O’Connor Dissent

Answer 12

• harm prevention
• distinguishes Berman + Midkiff (says these were situations in which previous use was problematic)
• if all that is needed is economic development rationale, properties are at risk of condemnation - would just need plausible argument that someone other than the present owner could put the property to more valuable use

Question 13

Kelo v. New London - O’Connor Categories for Takings

Answer 13

Dissent says three categories of takings that pass public use req:

• transfer to public ownership
• transfer to private parties who will make the property available for public use
• in certain circumstances + under certain exigencies, transfer to eventual private use, in which pre-taking use inflicted harm on society (Berman and Midkiff)

Question 14

Kelo v. City of New London - Thomas Dissent

Answer 14

• historical argument for use-by-the-public standard
• policy concern about impact on minorities + those lacking in power - points out that use of eminent domain has targeted poor + racial minorities, especially in urban renewal era of 1950s

Question 15

Just Compensation - General Standard

Answer 15

• owners usually get estimated market value

- does not compensate for subjective value or value created by the prospective public use

Question 16

Mechanisms That May Ensure More Generous Compensation

Answer 16

• bad publicity + political power
• statutory duties to bargain
• relocation assistance

Question 17

Factors Not Accounted for in “Just” Compensation

Answer 17

• psychological attachment
• personalized/idiosyncratic modification
• loss of community ties or business good will
• moving and relocation costs
• condemning authority captures assembly gain + shares none of it w/ owner

Question 18

United States v. Miller

Answer 18

• deals w/ just compensation
• landowners don’t get any value added to the property because of the government project - just get the value in the pre-development phase