美國(guó)財(cái)產(chǎn)法Chapter 12 Eminent Domain.docx

PKU-STL HuChapter 12 Eminent DomainA. Introduction1. Definition: The power allowing federal, state, and local governments to take property from a private owner who refuses to voluntarily sell. The process of exercising this power to take property is called condemnation.2. Constitutional Limitations: The 5th Amendment: Nor shall private property be taken for public use, without just compensation”(1) Private property = includes all estates and future interests in real property, and tangible and intangible personal property(2) taken = usually easily satisfied in most eminent domain cases b/c the government is obtaining some form of title + physical permanent possession of the property ( but note material on regulatory takings , which has a more complex definition)(3) For public use = discuss this in Kelo(4) Without just compensation = usually equivalent to FMV, but could be complex in certain cases3. Defining Public Use(1) Easy definitions/situations when public use is implicated: when private land is taken away to build a highway / to build a military base / to build a government installation / to build a public facility / to build a police station / etc.(2) Harder question: what if property is transferred from one private owner to another for economic development purposes? The Supreme Court - in the Kelo v. City of London case, upheld the traditional standard: the public use requirement is satisfied if the taking serves a legitimate public purpose, even if the government realizes this purposes by taking property from one owner for the purpose of conveying it to another ownerB. Scope of public use1. Kelo v. City of New London (2005)(1) Facts: Pfizer Inc wants to build a research facility on the City which would create 1000 jobs to the area. In 2000, the City approved the development plan, and proposed to use the power of eminent domain to acquire some residents property. There is no allegation that any of these properties is blighted or in poor condition. The properties were condemned only because they happen to be located in the development area.(2) Issue: whether a city may condemn an owner-occupied home and transfer it to a private developer in order to facilitate the citys economic redevelopment plan.(3) Rule: A citys proposed taking of private property for general economic development qualifies as a public use consistent with the Takings Clause of the Fifth Amendment to the United States Constitution.(4) Reasoning:a. For the majority, was Kelo a hard case or an easy case? easyb. They relied on Berman and Midkiff , which emphasized that it is the purpose of the taking which determines public use, not its mechanicsc. At the same time, the majority expressly noted that it continued to accept the proposition that government cannot take As property for the sole purpose of transferring to B, even with compensationd. Public use satisfied? Yes. Economic development - the majority held - is a traditional function of government and serves a public purpose: “Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose. (p. 903) - therefore, NLs economic redevelopment plan was rationally related to a legitimate government goal, and therefore Kelos home taken for a public use - the plan unquestionably serves a public purpose (p. 903)e. But wouldnt the taking harm Kelo and her neighbors?Yes, even though they would get compensated. The city council had to make a decision and balance the pros and cons.f. State can provide more protection to people: each state is free to place further restrictions on its exercise of the takings power, indeed, many states did adopt new legislation to limit the exercise of the eminent domain power as a general matter, and to restrict or prohibit its use for economic development purposes.(5) Kennedys concurrence ( practical)a. The concurrence worried that the majoritys opinion may make the eminent domain become too easy. b. Kennedy tried to be more cautious:“If the transfers are so suspicious or the procedures employed so prone to abuse , or the purported benefits are so trivial or implausible, courts should presume an impermissible private purpose.”c. Consider two things in eminent domain:1) Subjective intent: was the transfer intended to benefit a particular person? Primary motivation, incidental or not 2) Objective benefit: was the amount of the public benefit sufficiently high? Trivial or notd. Did the Kelo facts justify heightened scrutiny, in Kennedys view? No. The taking occurred in the context of a comprehensive plan that addressed a serious economic depression, and the projects projected economic benefits were not trivial.(6) OConnors dissenta. Concerned about an overly expansive interpretation of the public use requirement. b. distinguish Berman and this case:The Fort Trumbull neighborhood was not blighted and existing uses were reasonable, vs. the uses of the land in Berman and Midkiff were causing harm (blight in Berman and the oligopoly in Midkiff.c. Concerns that the beneficiaries of the majoritys ruling will be those citizens with disproportionate influence and power in the political process.d. Justice Thomas wrote a separate dissent, arguing for a return to the narrow definition of the public use clause (government may take property only if it actually uses or gives the public a legal right to use the property), and concerns with victimizing the weak and poor.(7) Points for discussiona. Important facts in Kelo supporting a public use:1) Economic depress background2) Comprehensive development plan3) Clear public purpose4) How many homes are affectedb. When talk about eminent domain, do not forget Kennedys opinion. C. Collection1. Which of the following is not correct?(a) Eminent domain is an inherent attribute of sovereignty.(b) The federal Constitution limits a governments eminent domain power.(c) Just compensation is generally defined to mean fair market value.(d) Courts, not the legislature, usually determine when an exercise of eminent domain is for a public use.1(d). Courts give great deference to the decision of a local legislature that a particular exercise of eminent domain is for a public use. Courts generally will not second-guess the legislative decision as long as the condemnation is rationally related to a conceivable public purpose.2. M purchased Grassyacre, a ten-acre parcel of undeveloped land on the outskirtsof City Z, intending to build a Brazilian restaurant on two of the acres and topreserve the rest for growing Brazilian sugar cane. City Z wants to buy nineacres of Grassyacre to preserve it as a natural grassy open space. City Z plans todesignate the land as “wilderness” and prohibit any entry by anyone. City Z willpay M for his nine acres. If City Z is able to condemn Ms parcel, the remainingacreage will not be enough to allow M to build a restaurant or to grow sugar cane.If M sues City Z claiming that the City cannot use its condemnation authority inthis manner, what is the likely result?(a) M will succeed because the City is not using the land for any type of development.(b) M will succeed because the City cannot use its power of eminent domainunless there is a recognized public purpose.(c) City will prevail because wilderness preservation can meet the public userequirement of the Fifth Amendment.(d) City will prevail because its intended use is more important than Ms intendeduse.2(c). The public use requirement of the Fifth Amendment has come to mean any use that serves a legitimate public purpose. Conservation is an important public purpose. Even though City will not affirmatively “use” the land, it may condemn the land in order to maintain it in its natural state. (d) is not correct, because courts will not weigh the interests of each of the parties. City may take Ms land for a recognized public use, regardless of how important the land is to M.4. Which of the following statements was made by Justice Kennedy in his concurrence in Kelo?(a) The majoritys holding would allow the state to replace any Motel 6 with a Ritz Carlton.(b) A taking would not meet the public use test if its purpose was to favor a particular private individual with only incidental or pretextual public benefits.(c) The beneficiaries of the decision will likely be those with disproportionate influence and power in the political process.(d) Society is inherently harmed if any single-family home might be razed to make way for a business.4(b). Justice Kennedy expressed a concern about potential abuse of the eminent domain power; however, he found that the facts of Kelo supported the Citys condemnation action: the taking occurred in the context of a comprehensive development plan meant to address a serious citywide depression, rather than serve the interests of any particular private party. The other three is from the dissent.5. Which of the following uses of eminent domain is most likely not to satisfy thepublic use test as defined in Kelo?(a) City A wants to build a new sports complex in order to keep a nationalfranchise basketball team from moving to another state. While there are manypotential viable sites, the owner of the team wants the complex to be located in aspecific downtown area and is unwilling to consider other venues. Ds house islocated in the targeted area. When D refuses to sell, City A begins condemnationproceedings.(b) F owns five acres of grape producing land. His vines produce a wonderfulwine-making grape; and his wines are noted for their complexity. Fs winery hasbrought international notoriety to the state and led to the employment of severalhundred individuals. Town T has determined that Fs land would be perfect fora small soccer field and dog park. Town T wants to acquire Fs land by using itspower of eminent domain. F refuses to sell.(c) City C is filled with unsightly buildings and slums. City C adopts a plan thatcalls for the condemnation of a particular area of downtown in order to develop amore balanced, more attractive community. N has just built a new building in thedesignated area that serves as a commercial business. His building is not blighted.N is seeking to enjoin the condemnation of his property.(d) M is the owner of a national beer company whose headquarters is located inCity X. Ms business brings hundreds of jobs and millions in tax revenues to CityX and the state. M decides she wants to buy Ps house, a lovely historic structureuniquely located on the river flowing through City X. P refuses, thinking he canhold out and get millions more. M tells City X that if it does not condemn Psproperty so M can buy it at fair market value, M will move to another town. CityX begins condemnation proceedings.5(d). City Xs actions have the sole purpose of taking from citizen P and giving to citizen M. Its decision to condemn Ps land is not part of a comprehensive plan, nor is it intended to address an economic decline. There is also no indication from the facts that Ms individual choice to live somewhere else will have any impact on the economic development of City X. (a) is for the purpose of preserving the communitys economic base; (b) has the objectives of advancing physical fitness and pet