Real Estate & Property Law

One More Amicus Brief In Columbia Eminent Domain Case: Court Should Clarify "Pretextual Taking"

By Robert Thomas (inversecondemnation.com)

The Institute for Justice, the Cato Institute, and the Beckett Fund for Religious Liberty have weighed in on Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia "blight" case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is "substandard or insanitary" is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not the actual reason, and the Appellate Division concluded that the taking was not valid.

In their amicus brief, the IJ and company argue:

This case presents an opportunity for this Court to clarify the definition of a "pretextual taking" under the Public Use Clause of the Fifth Amendment. In Kelo v. City of New London, 545 U.S. 469, 479-85 (2005), this Court ruled that "economic development" is a public purpose justifying the use of eminent domain. But the Court also emphasized that government may not "take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit." Id. at 478. In his concurrence, Justice Kennedy noted that a taking characterized by "impermissible favoritism" would be unconstitutional if the government cannot prove that it served a non-pretextual public purpose. Id. at 491 (Kennedy, J., concurring)....

Unfortunately, Kelo provided only limited guidance on what counts as a pretextual taking. See, e.g., Goldstein v. Pataki, 488 F. Supp. 2d 254, 288 (EDNY 2007), aff ?d, 516 F.3d 50 (2d Cir. 2008) (noting that "[a]lthough Kelo held that merely pretextual purposes do not satisfy the public use requirement, the Kelo majority did not define the term 'mere pretext'").

As a result, lower courts have applied different standards. Several state supreme courts look to the motives of the condemnor. Others focus on whether the new private owner captures most of the benefits of the condemnation. A third group focuses on the extent of the planning process preceding the taking. Finally, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit essentially ignore all these considerations. They define pretext so narrowly that even the most blatant favoritism will escape judicial scrutiny. This confusion calls out for resolution by this Court.

Brief at 3-4 (footnote omitted).

The brief summarizes the cases which have applied Kelo, asserting that there has been "widespread confusion" in the lower courts on how to define and determine pretext. The brief focuses on four elements as indicators of a pretextual taking: (1) evidence of pretextual motive; (2) that a private party will be the primary beneficiary of the taking; (3) the lack of objective planning; and (4) that the private beneficiary was identified prior to the taking. See Br. at 12-18. More on the brief here, from Cato's blog.

New York's notoriously loose "blight" definition also comes into play. As we noted in several posts criticizing the Court of Appeals' decision (see here and here) and in a post lauding the Appellate Division's decision, "in other words, 'blight' is whatever the agency says it is. Just drum up a 'study' or two, and you're insulated from judicial review." The IJ brief notes that the eminent domain power is particularly suceptible to abuse in those states where blight is a very elastic term. Br. at 21.

The property owners' cert petition is posted here.

Full post as published by inversecondemnation on October 28, 2010 (boomark / email).