Eminent Domain Post-Kelo - Amazon S3 · Eminent Domain Post-Kelo Andrew W. Schwartz Sarah H. Sigman...
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Eminent Domain Post-Kelo
Andrew W. Schwartz
Sarah H. Sigman
Shute Mihaly & Weinberger LLP
San Francisco
September 2016
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The International Municipal Lawyers Association
Friday, September, 30th, 2016
Land Use Section Meeting
Redevelopment in California
• 2006-07 -- generated $40.79 billion in total economic activity
• 2006-07 -- created 303,946 full and part time jobs
• Since 1995 -- built or rehabilitated 78,750 affordable housing units
• Built or refurbished thousands of low and moderate income housing units
• 2nd largest funder of affordable housing in California after federal government
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Redevelopment in California
• 2006-07 -- increased State income by $22.74 billion (wages and salaries, proprietor income, corporate profits, property income, and indirect business taxes)
• 2006-07 -- construction activity resulted in increase of $2 billion in tax revenues for state and local governments
• 2006-07 -- created 170,600 construction sector jobs -- 23.4% of all construction industry jobs in California
• 2006 -- increased state construction sector output by $18.97 billion
• 2006 -- 24.1% of all construction industry income3
Redevelopment in California
• Every dollar of redevelopment agency
spending generates nearly $13 in instate sales
of goods and services
• On average, every dollar of RDA spending
increases state income by more than $7
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Benefits of Infill Development
• Reduce greenhouse gas emissions and energy use
• Reduce traffic congestion
• Increase productivity
• Increased mobility
• Improve health and safety
• Positive social effects
• Increase household income and economic development
• Land conservation
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Berman v. Parker
• Redevelopment of blighted areas
• “The role of the judiciary in
determining whether that power is
being exercised for a public purpose
is an extremely narrow one.”
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Poletown Neighborhood Council
v. Detroit
• Last integrated neighborhood
• Not blighted
• General Motors auto plant
• Public purposes: jobs, taxes
• Michigan Supreme Court approved
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City of Oakland v. Oakland
Raiders
• Public purpose is “broad”
• Agency decision re public purpose
reviewed for gross abuse of discretion
• Condemnation of sports franchise -
intangible property - may be a public
use
• Public purposes: recreation, jobs, local
economy
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99 Cents Stores v. Lancaster
• Federal Court
injunction
State procedures
for challenging
right to take
Future discretion
• Public purpose
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Kelo -- Question Presented
Is Fifth Amendment’s public use
requirement met if condemnation
is not to eliminate slums or blight,
but for the sole purpose of
“economic development”?
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Kelo v. City of New London, 545
U.S. 469 (2005)
The taking before us would be
executed pursuant to a “carefully
considered” development plan.
“public use” = “public purpose”
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Kelo
Without exception, our cases have defined [public use] broadly, reflecting our long standing deference to legislative judgments in this field.
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Kelo
Our earliest cases . . . embodied a strong theme of federalism, emphasizing the “great respect” that we owe state legislatures and state courts in discerning local public needs.
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Kelo
We decline to second guess the City’s determinations as to which lands it needs to acquire in order to effectuate the project.
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Kelo
[N]othing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.
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California Proposition 90 (2006)
• No eminent domain for redevelopment
o Regulation diminishing property value requires compensation
o Ballot initiative defeated
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• California Proposition 98 (2008) –initiative defeated
oNo eminent domain for private use
oRegulation diminishing value requires compensation
• California Proposition 99 (2008) –initiative passed
oNo eminent domain of single family owner-occupied housing for private entity
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Arizona Public Protection Act-
Proposition 207 (2006)
oNo eminent domain on behalf of a private party
oRegulations decreasing property value require compensation
oInitiative passed
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• Oregon: Measure 49 (2007) – approved
oReducing impact of 2004 regulation-Measure 37
oCompensation for land use regulations required only for limits on residential, farming, or forest practices
• Florida: Eminent Domain Amendment 8 (2006) – approved
o No eminent domain on behalf of private party, with exceptions permitted by super-majority of Legislature
• Georgia: Eminent Domain Reform Amendment 1 (2006) – approved
oNo eminent domain by nonelected authorities; no eminent domain except for elimination of public harm
• Idaho: Restrict Eminent Domain Initiative 2, (2006) – defeated
oLimit use of eminent domain; judicial review required for eminent domain
o “Public use” excludes transfer of property between private parties
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• Michigan: Eminent Domain Restriction Amendment, Proposal 4 (2006) –approved
o Eminent domain prohibited for certain private purposes
• Nevada: Property Owners Bill of Rights, Question 2 (2006) – approved
o “Public use” excludes transfer of property between private parties
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• New Hampshire: Eminent Domain Amendment (2006) – approved
oNo eminent domain for private use or development
• North Dakota: Taking of Private Property Measure 2 (2006) – approved
o “Public use” excludes public economic development benefits; no eminent domain for private benefit
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• South Carolina: Amendment 7, Eminent Domain Act (2006) –approved
o No eminent domain except for public use; economic development not a public use
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• H.R. 4128: Private Property Rights Protection Act (2005) –passed by House; failed in SenateoWould prevent government entities
receiving federal funds from using eminent domain for economic development
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• H.R. 3405: Strengthening the Ownership of Private Property Act (2005) – failed in CommitteeoProhibits federal financial assistance
to governments using eminent domain to transfer property to private entity
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• H.R. 4772: Private Property Rights Implementation Act (2006) – passed by House; failed in SenateoWould allow property rights cases to
be filed in federal court
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• H.R. 4128: Private Property Rights Protection Act (2005) –passed by House; failed in SenateoWould prevent government entities
receiving federal funds from using eminent domain for economic development
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• H.R. 3405: Strengthening the Ownership of Private Property Act (2005) – failed in CommitteeoProhibits federal financial assistance
to governments using eminent domain to transfer property to private entity
• S. 1313: Protection of Homes, Small Businesses, and Private Property Act (2005) – failed in Senate oWould limit eminent domain to
public use, excluding economic development
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• H.R. 3058: Amendment to 2006
Transportation/HUD Spending
Bill – became law
oNo covered funds allowed for
projects using eminent domain
primarily benefiting private entities
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• H.R. 926: Strengthening the
Ownership of Private Property
Act (2007) – failed in
Committee
oNo federal assistance to governments
that use eminent domain for private
entities; creates a private right of
action for owner of property taken in
violation of the Act36
• S. 48: Private Property Rights
Protection Act (2007) – failed
in Committee
oNo federal funds for condemning
authority that takes real property for
private use
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• H.R. 1433: Private Property
Rights Protection Act (2011) –
passed by House; failed in
Senate
oProhibits governments receiving
federal economic development
funding from using eminent domain
for economic development
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• H.R. 1914: Private Property
Rights Protection Act (2014) –
passed by House; failed in
Senate
oProhibits economic development
takings; government must show
taking is not for economic
development
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• H.R. 3013: Private Property
Rights Protection Act (2015) –
stalled in House Committee
oProhibits economic development
takings; government must show
taking is not for economic
development
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• S.B. 1206 (2006) – passed
oNarrowed definition of blight and
urbanized (prerequisites for
redevelopment)
• S.B. 1210 (2006) – passed
oChanged prejudgment possession
process- extended time to take
possession, and required notice to
property owners
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• S.B. 53 (2006) – passed
oRequires redevelopment agencies to
describe eminent domain procedures;
boosts awareness of policies.
• S.B. 1650 (2006) – passed
oLimits uses of condemned property;
requires offer of resale back to
original owner
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• S.B. 1809 (2006) – passed
oRequires redevelopment plan to
record a statement of eminent
domain provisions
• S.B. 437 (2007) – passed
oRedevelopment agencies must report
project areas’ time limits
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• A.C.A. 8 (2007) – failed
oWould have placed constitutional
amendment on the ballot to prohibit
eminent domain for private use
except in blighted areas
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• S.B. 698 (2008) – passed
oOpposition to motion for an order of
possession must be signed under
penalty of perjury; public entities
must create informational pamphlets
on eminent domain for property
owners
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• A.B. 1080 (2013) – held in
Committee
oAuthorized establishment of
Community Revitalization and
Investment Authority to address
blight; collect tax increment
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• S.B. 628 (2014) – passed
oAuthorizes local governments to
create Enhanced Infrastructure
Financing Districts to finance
infrastructure projects; can issue
bonds with 55% voter approval
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• A.B. 229 (2014) – passed
oAuthorizes local governments to
create Infrastructure and
Revitalization Financing Districts to
finance community projects; can
issue bonds with 2/3 voter approval
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• A.B. 2280 (2014) – vetoed by
Gov. Brown
oWould authorize creation of
Community Revitalization and
Investment Authority and use of tax
increment revenues
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• A.B. 1138 (2015) – failed in
Committee
o Prevents High Speed Rail Authority from
using eminent domain
• A.B. 2 (2015) – passed
o Authorizes creation of Community
Revitalization and Investment Authority
in disadvantaged areas (replacement for
redevelopment authorities abolished in
2011)51
• S.B. 107 (2015) – passed
o Streamlines redevelopment agency
dissolution process
• A.B. 2492 (2016) – pending in
Committee
o Clarify Community Revitalization and
Investment Authority law, including by
changing conditions for eligible locations
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Columbia University Expansion
• $6.3 billion, 17 acre satellite campus in
Harlem
• Owners of 4 warehouses and 2 gas
stations refused to sell; sued Empire
State Development Corp.
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Atlantic Yards/Pacific Park
• $4.9 billion, 22 acre plan for sports
arena for N.Y. Nets, high rise
residential and commercial buildings in
Brooklyn
• N.Y. Court of Appeals upheld use of
eminent domain
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Atlantic City- Trump’s Proposed
Development
• Proposed mixed-use project
• Three property-owners, including
elderly widow Vera Coking, refused to
sell to Trump
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Alternate Methods to Reform
Eminent Domain
• Narrowing definitions of key terms, e.g.
“blight”
oBlight revoking judicial deference of
determinations of “blight;” applying
heightened judicial review
• Increasing community participation;
granting communities veto power
• Limiting duration of redevelopment plans
oRequiring voter renewal of plans57