Eminent Domain Flashcards
1
Q
Government Forbearance
A
- government flexibility vs. precommitment (would mean the gov lets people do their own thing with their property)
2
Q
Basic Concept of Eminent Domain
A
- government can appropriate property for public use upon payment of just compensation
CORE REQUIREMENTS: - Public use
- Just compensation
3
Q
Holdouts
A
- 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
4
Q
Fifth Amendment
A
- 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
5
Q
Public Use - General
A
- 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
6
Q
Public Use - SCOTUS
A
- 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
7
Q
Kelo v. City of New London - Background
A
- 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
8
Q
Kelo v. New London - Facts
A
- 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
9
Q
Kelo v. New London - Procedural Posture
A
- 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
10
Q
Kelo v. New London - Majority Opinion
A
- 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
11
Q
Kelo v. New London - Kennedy Concurrence
A
- 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
12
Q
Kelo v. New London - O’Connor Dissent
A
- 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
13
Q
Kelo v. New London - O’Connor Categories for Takings
A
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)
14
Q
Kelo v. City of New London - Thomas Dissent
A
- 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
15
Q
Just Compensation - General Standard
A
- owners usually get estimated market value
- does not compensate for subjective value or value created by the prospective public use
