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PROPERTY E SLIDES

PROPERTY E SLIDES. 2-18-13. Today: Tests/Standards for “Public Use”. Application of Federal Public Use Standards To facts of Poletown (DQ42) = DENALI To Review Problem 2B (S23) = EVERGLADES Application of Tests from Poletown Majority To facts of Kelo (DQ43) = DENALI

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PROPERTY E SLIDES

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  1. PROPERTY E SLIDES 2-18-13

  2. Today: Tests/Standards for “Public Use” • Application of Federal Public Use Standards • To facts of Poletown(DQ42) = DENALI • To Review Problem 2B (S23) = EVERGLADES • Application of Tests from PoletownMajority • To facts of Kelo(DQ43) = DENALI • To review Problem 2C (S25) = GLACIER • Tests from Hatchcock/Merrill (DQ44-45) = OLYMPIC • Identify • Apply to facts of Kelo & Poletown

  3. DENALI: DQ42Poletown Facts& Kelo Standards Denali Caribou

  4. DENALI: DQ42 Apply Federal Cases to Facts of Poletown • Poletown = Easy Case Under Midkiff/Rational Basis • Arguments from Kelo Majority/Concurrence to Take It Out of Rational Basis? • Last Time Did from Majority

  5. DENALI: DQ42 Apply Federal Cases to Facts of Poletown KeloMajority: Partial Analysis • Majority: Not OK if purpose is purely private benefit. (Not true in Poletown) • Majority: Suspicious if transferring from one citizen to another b/c will put to better use. (Arguably true in Poletown) • Facts Different from Kelo b/c no comprehensive plan or thorough deliberation

  6. DENALI: DQ42 Apply Federal Cases to Facts of Poletown • Poletown = Easy Case Under Midkiff/Rational Basis • Arguments from Kelo Majority/Concurrence to Take It Out of Rational Basis? • Last Time Did from Majority • Arguments from Kennedy Concurrence?

  7. DENALI: DQ42 Apply Federal Cases to Facts of Poletown KND Concurrence: Partial Analysis • Pros: serious economic crisis; public benefit significant & arguably not incidental • Cons: known beneficiary; lack of comprehensive planning • OVERALL?

  8. DENALI: DQ42 Apply Federal Cases to Facts of Poletown KND Concurrence: Partial Analysis • Pros: serious economic crisis; public benefit significant & arguably not incidental • Cons: known beneficiary; lack of comprehensive planning • Hard Q: Is acceding to GM’s specific demands “favoritism” or sensible way to achieve big economic benefit?

  9. EVERGLADES: Review Problem 2B EGRET IN MANGROVE SWAMP

  10. Everglades: REVIEW PROBLEM 2B (S23)Apply Federal Cases • City developing Museum on own land next to OG • OG = Slightly rundown neighborhood w shabby but occupied apt complexes, warehouses, and a few small businesses (incl. pawnshop & xxx bookstore). • Developer D wants to develop 24-sq-block part of OG into mixed-use project containing residences, offices, stores and restaurants. • City uses EmDom to purchase area & resell to D contingent on her building proposed project.

  11. Everglades: REVIEW PROBLEM 2BApplyRational Basis Test • Purpose of Program? • Legitimate? (Connected to Health, Safety, Welfare, Morals) • Program Rationally Related to Purpose?

  12. Everglades: REVIEW PROBLEM 2BFacts Relevant to KeloMajority/Concurrence • Again Easy Case Under Midkiff/Rational Basis • Kelo MAJ/CCR Analysis to Take It Out of Rational Basis: Relevant Facts Suggesting Problems?

  13. Everglades: REVIEW PROBLEM 2BFacts Relevant to KeloMajority/Concurrence KeloMajority/Concurrence Analysis to Take It Out of Rational Basis: Problematic Facts Include: • MAJ: Transfer from 1 citizen to another of b/c parcel will put to better use = Suspicious • No evidence of • Long Term or Comprehensive Planning • Economic Crisis • State Statute Authorizing • Beneficiary known & driving project (Does it look unfair?) Helpful Facts?

  14. Everglades: REVIEW PROBLEM 2BApplication of KeloMajority/Concurrence KeloMajority/Concurrence Analysis to Take It Out of Rational Basis: Helpful Facts Include: • D pays FMV (no discount) & must complete project, so no private benefit unless project succeeds • Public benefits seem pretty likely • Primary City intent may be (public) benefit to museum Overall: Suspicious Enough to Do Serious Scrutiny?

  15. LOGISTICS • Class E-Mail List Sent Out Wed 2/6 • If you didn’t get, we probably have incorrect e-mail • Check w classmate or w Michelle & let us know if we need to fix your address • Lunches: Limited # of Slots Left • If you want in, check online list & e-mail preferences • If need be I’ll open up extra dates after break • Posted on Course Page • Chapter 3 Materials • Updated Syllabus & Assignment Sheet

  16. LOGISTICS • Lot of Intro Reading for Tomorrow: • For Now: Read for Plot • I’ll Talk About What You Need to Know as We Go • Will Need More Detailed Attention • Yosemite Review Problem 3A (We’ll Start Tomorrow): • Try to identify All Places There Are Qs re Formalities (Not Capacity or Undue Influence, but technical creation of will) • Need to look at pages indicated closely • ALL: Detailed DQs re Intestacy Statutes for Thurs: • Each of you assigned one state by last name • Technical and clear right/wrong answers; will take time

  17. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • Deference, Rational Basis, Heightened Scrutiny • The Fifth Amdt., Eminent Domain & Public Use • Federal Public Use Standards • Midkiff • Kelo • State Public Use Standards • Poletown • Hatchcock

  18. Poletown Tests Used if land ends up in private hands • Public must be “primary beneficiary” & private benefit merely “incidental” • Public benefit must be “clear and significant” Michigan SCtin Poletownrepeatedly says tests are met w/o much analysis

  19. Significance of Poletown Tests • Hatchcock overrules Poletown result & tests • We’ll go through resulting tests later w Olympic • Poletown tests still used by other states • Can still use Poletown facts as example of how tests from case could be applied

  20. DENALI: DQ43 Apply Poletown Tests to Kelo Facts Denali Caribou

  21. DENALI: DQ43 Apply Poletown Tests to Facts of Kelo Public must be “primary beneficiary” & private benefit merely “incidental” Possible readings of “primary beneficiary” test: • Quantitative weighing of public v. private benefit • Primary purpose • Who is driving the deal? (raised by Poletowndissent)

  22. DENALI: DQ43 Apply Poletown Tests to Facts of Kelo Public must be “primary beneficiary” & private benefit merely “incidental”: Possible Readings: • Quantitative weighing of public v. private benefit (need to identify each & then compare) • Primary purpose • Who is driving the deal? APPLY TO KELO FACTS

  23. DENALI: DQ43 Apply Poletown Tests to Facts of Kelo Public must be “primary beneficiary” & private benefit merely “incidental”: Possible Readings: • Quantitative weighing of public v. private benefit (need to identify each & then compare) • Primary purpose? • Who is driving the deal? APPLY TO KELO FACTS

  24. DENALI: DQ43 Apply Poletown Tests to Facts of Kelo Public must be “primary beneficiary” & private benefit merely “incidental”: Possible Readings: • Quantitative weighing of public v. private benefit (need to identify each & then compare) • Primary purpose? • Who’s driving the deal? (Check compulsion; unfairness) • Proposal by private party maybe OK if not dictating unfair terms • Might look for evidence of continued control by city APPLY TO KELO FACTS

  25. DENALI: DQ43 Apply Poletown Tests to Facts of Kelo Public must be “primary beneficiary” & private benefit merely “incidental” Note that Kennedy references this Test, so presumably he thinks Kelo Facts meet it.

  26. DENALI: DQ43 Apply Poletown Tests to Facts of Kelo Public benefit must be “clear and significant” Assume both words have meaning • “Clear” as opposed to “speculative” • “Significant” as opposed to “marginal” APPLY TO KELO FACTS

  27. GLACIER: Review Problem 2C Glacier Mountain Lion

  28. Glacier: REVIEW PROBLEM 2C (S25)Compare Poletown & Apply Tests • City losing $$$ b/c consumers prefer shopping at newer shopping centers outside city limits • City program allows developers to propose plans to replace older shopping w new shopping/residential • If approved, city buys site w EmDom, then leases site to developer • Under program, city approved plan to replace particular shopping center (OCSC)

  29. Glacier: REVIEW PROBLEM 2C (S25)Compare Poletown & Apply Tests Factual Differences from Poletown & Possible Legal Relevance?

  30. Glacier: REVIEW PROBLEM 2C (S25)Apply Poletown Tests Public must be “primary beneficiary” & private benefit merely “incidental”: Possible Readings: • Quantitative weighing of public v. private benefit (need to identify each & then compare) • Primary purpose? • Who’s driving the deal? (Check compulsion; unfairness) • Proposal by private party maybe OK if not dictating unfair terms • Might look for evidence of continued control by city

  31. Glacier: REVIEW PROBLEM 2C (S25)Apply Poletown Tests Public benefit must be “clear and significant” • “Clear” as opposed to “speculative” • “Significant” as opposed to “marginal”

  32. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • Deference, Rational Basis, Heightened Scrutiny • The Fifth Amdt., Eminent Domain & Public Use • Federal Public Use Standards • Midkiff • Kelo • State Public Use Standards • Poletown • Hatchcock

  33. OLYMPIC: DQ44-45Hatchcock/Merrill Tests SUNSET IN THE PARK

  34. OLYMPIC: DQ44-453 Hatchcock “Situations” Hatchcock: 3 “situations” where property acquired by EmDom legitimately ends up in private hands: • Public Necessity: Only way to do project is through Eminent Domain • Accountability: Private entity remains responsible to public for its use • Selection: Particular parcel(s) chosen based on public concern.

  35. OLYMPIC: DQ44-453 Hatchcock “Situations” • Public Necessity: Only way to do project is through Eminent Domain • Examples: RRs, highways, etc. • Justification: Overcome high transaction costs • OCR Dissent P189: Hard to determine if really necessary. • DQ45: Merrill would apply in ALL EmDomcases (not just private recipients)

  36. OLYMPIC: DQ44-453 Hatchcock “Situations” • Public Necessity: Only way to do project is through Eminent Domain • Examples: RRs, highways, etc. • Justification: Overcome high transaction costs DQ44-45: Apply to facts of Kelo

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