Replies

04-108 KELO, ET AL. V. NEW LONDON, CT, ET AL.

Decision Below: 843 A.2d 500 (Conn. 2004)

QUESTION PRESENTED

What protection does the Fifth Amendment's public use requirement provide
for individuals whose property is being condemned, not to eliminate slums
or blight, but for the sole purpose of "economic development" that will
perhaps increase tax revenues and improve the local economy?

Cert. Granted 9/28/04

*****************************************

(Slip Opinion) OCTOBER TERM, 2004

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is
issued. The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the convenience
of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S.
321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

KELO ET AL. v. CITY OF NEW LONDON ET AL.

CERTIORARI TO THE SUPREME COURT OF CONNECTICUT

No. 04–108. Argued February 22, 2005—Decided June 23, 2005

After approving an integrated development plan designed to revitalize its
ailing economy, respondent city, through its development agent, purchased
most of the property earmarked for the project from will- ing sellers, but
initiated condemnation proceedings when petitioners, the owners of the rest
of the property, refused to sell. Petitioners brought this state-court
action claiming, inter alia, that the taking of their properties would
violate the “public use” restriction in the Fifth Amendment’s Takings
Clause. The trial court granted a permanent restraining order prohibiting
the taking of the some of the properties, but denying relief as to others.
Relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U. S.
229, and Berman v. Parker,
348 U. S. 26, the Connecticut Supreme Court affirmed in part and reversed
in part, upholding all of the proposed takings.
Held: The city’s proposed disposition of petitioners’ property qualifies as
a “public use” within the meaning of the Takings Clause. Pp. 6–20.
(a) Though the city could not take petitioners’ land simply to confer a
private benefit on a particular private party, see, e.g., Midkiff, 467
U. S., at 245, the takings at issue here would be executed pursuant to a
carefully considered development plan, which was not adopted “to benefit a
particular class of identifiable individuals,” ibid.   Moreover, while the
city is not planning to open the condemned land—at least not in its
entirety—to use by the general public, this “Court long ago rejected any
literal requirement that condemned property be put into use for the . . .
public.”    Id., at 244.    Rather, it has embraced the broader and more
natural interpretation of public use as “public pur- pose.”   See, e.g.,
Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112,
158–164.    Without exception, the Court has defined that concept
broadly, reflecting its longstanding policy of deference to legislative
judgments as to what public needs justify the use of the takings

KELO v. NEW LONDON

Syllabus

power.   Berman, 348 U. S. 26; Midkiff, 467 U. S. 229; Ruckelshaus v.
Monsanto Co., 467 U. S. 986. Pp. 6–13.
(b) The city’s determination that the area at issue was sufficiently
distressed to justify a program of economic rejuvenation is entitled to
deference. The city has carefully formulated a development plan that it
believes will provide appreciable benefits to the community, includ- ing,
but not limited to, new jobs and increased tax revenue. As with other
exercises in urban planning and development, the city is trying to
coordinate a variety of commercial, residential, and recreational land
uses, with the hope that they will form a whole greater than the sum of its
parts. To effectuate this plan, the city has invoked a state statute that
specifically authorizes the use of eminent domain to promote
economic development. Given the plan’s comprehensive char- acter, the
thorough deliberation that preceded its adoption, and the lim- ited scope
of this Court’s review in such cases, it is appropriate here, as it was in
Berman, to resolve the challenges of the individual owners, not on a
piecemeal basis, but rather in light of the entire plan. Because that
plan unquestionably serves a public purpose, the takings chal- lenged
here satisfy the Fifth Amendment. P. 13.
(c) Petitioners’ proposal that the Court adopt a new bright-line rule that
economic development does not qualify as a public use is sup- ported by
neither precedent nor logic. Promoting economic develop- ment is a
traditional and long accepted governmental function, and there is no
principled way of distinguishing it from the other public purposes the
Court has recognized. See, e.g., Berman, 348 U. S., at
24.    Also rejected is petitioners’ argument that for takings of this kind
the Court should require a “reasonable certainty” that the ex- pected
public benefits will actually accrue. Such a rule would repre- sent an
even greater departure from the Court’s precedent. E.g., Midkiff, 467 U.
S., at 242. The disadvantages of a heightened form of review are
especially pronounced in this type of case, where orderly implementation
of a comprehensive plan requires all interested par- ties’ legal rights to
be established before new construction can com- mence. The Court declines
to second-guess the wisdom of the means the city has selected to effectuate
its plan.   Berman, 348 U. S., at 26. Pp. 13–20.
268 Conn. 1, 843 A. 2d 500, affirmed.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY,
SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed a con-
curring opinion. O’CONNOR, J., filed a dissenting opinion, in
which REHNQUIST, C. J., and SCALIA and THOMAS, JJ., joined. THOMAS, J.,
filed a dissenting opinion. (emphasis added)

Article [V.]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (emphasis added)

Clearly, the U.S. Supreme Court re wrote the taking clause of the Fifth Amendment, to now mean "public purpose

" instead of "public use." Or to better put, commingle meaning. IMO, the five judges of the high court usurped the U.S. Constitution, whereas, there should have been a loud outcry from the other two branches of government. There wasn't. Oh there was a small wimper out of a few congressmen, but both remained silent?

IMO, the tip off was: The U.S. government, namely USDOJ, and/or U.S. Solicitor General argue about thirty cases a year or more before the U.S. Supreme court. When our government is concerned, Constitutional questions, has an interest thereof, or if not already in a case, will enter by filing an amicus brief, and request court time to argue. The Court record show, the U.S. Solicitor General did neither, in fact remained absent and silent. Therefore to protect the public's interest, our paid government lawyers avoided any input to save the eminent domain clause of the Fifth Amendment. If ever there was an opportunity for two branches of government to voice their disapproval of an unpopular U.S. Supreme Court ruling, since the Court's power grab in Marbury v. Madison, (1803), now was the time. Wouldn't have wonderful, if the congress and executive branch shouted NO, this ruling is unconstitutional, we don't like it, revisit, and redo it...NOW!

Hollywood can't use eminent domain to seize family's building for high-rise, judge rules

By John Holland
South Florida Sun-Sentinel
Posted June 23 2006, 10:06 AM EDT

HOLLYWOOD -- The city cannot take a family's downtown property and give it to a private developer, a judge ruled Thursday, ending a two-year legal battle and potentially jeopardizing a $100 million condominium complex.

Broward Circuit Court Judge Ronald J. Rothschild's ruling in favor of the Mach family, which has owned the 2,900-square-foot building on Harrison Street for decades, came as a blow to Mayor Mara Giulianti and city commissioners.

They wanted to use eminent domain to replace the Mach structure with a 19-story condo and retail tower as part of downtown revitalization plans.

The ruling also means developer Charles "Chip" Abele will have to either renegotiate with the Machs or come up with a new design plan for his condos. He said he has already offered the Mach family $1.2 million for the property, which is valued at $800,000.

"This just shows that a lot of people unified can stand up to a bully, to a government that they don't think is doing the right thing," said David Mach, whose late father bought the building after immigrating from Hungary and died during the negotiation process with the city.

Mach said he and his mother have no intention of selling their building, which houses a beauty salon and other business at the corner of Harrison Street and 19th Avenue.

"I just got off the phone with my mother and she was crying," Mach said. "She was too emotional to be here, but she is very happy."

The Mach case has dragged on for two years and become a cause for property-rights advocates, particularly in light of the 2005 U.S. Supreme Court ruling, Kelo vs. New London, that said cities can take property from individuals and sell it to private entities.

Citing those two cases, the Florida Legislature earlier this year changed Florida law to ensure that private property can be taken only for public use, such as to build highways, schools, railroads or other public projects.

Judge Rothschild's ruling was very narrow and followed a three-day trial in April and May. He said testimony showed the city and Abele didn't need the building to complete the project, a must for eminent domain. And he said the city's argument that taking the property would help save some portions of the historic Great Southern Hotel had no legal basis or precedent.

As part of an agreement Abele reached with the city two years ago, commissioners agreed to use eminent domain powers on his behalf if he preserved part of the hotel. The final plans would have saved some of the facade but gutted the hotel's interior.

Rothschild also found that neither Abele nor the city did anything improper during the eminent domain process, but said they did not have legally sufficient grounds to win in court.

There was one consolation for the city: Rothschild rejected arguments by Mach's lawyers that the entire Community Redevelopment Agency, which authorized the taking, was illegal and improperly structured.

"We are extremely pleased that the judge ruled that the CRA was proper and that the city dealt with everyone fairly," Giulianti said. "I just don't want to see Chip [Abele] up his offer to the Machs, because it sends a message to property owners that they can demand whatever they want from developers."

Abele, who has already spent millions on building plans and assembling the surrounding parcels, said he's not sure what happens next. He'll likely ask the city to appeal the ruling, which they must under terms of the development agreement he reached with commissioners two years ago.

Abele will pay the costs.

"It's a little bit complicated, and I know the judge was very careful in his ruling, but I'm not sure he was right," Abele said. "If the question is, do we need that property to physically build our project, then the answer is no.

"But if you're looking at the whole needs of a community, to make sure that it's safe for pedestrians and foot traffic all around, and that you keep redeveloping the area, then there's no question that we need that property," said Abele, who is also building a $325 million condo and retail complex on the northeast side of Young Circle.

With this year's legislative changes, Mach is one of the last cases in Florida pitting private owners against developers backed by elected city officials. Now, without eminent domain powers, developers will have to deal directly with landowners.

Abele said he hopes to resume negotiations with the Machs. "I do know that if we build around his place, that 2,900-square-foot building isn't going to be worth anything near what we're offering."

John Holland can be reached at jholland@sun-sentinel.com or 954-385-7909.