PROPERTY A SLIDES

1. PROPERTY A SLIDES 2-17-15

2. Tuesday Feb 17 Music:Renee Olstead (Self-Titled 2004) Lunch Today (Meet on Bricks @ 11:55): Brautigam; Dominguez; Garcia; Gillum Maneri; McGee; Ortega

3. LOGISTICS • Introducing Brian Sattler • Writing Dean’s Fellow • Working with Our Class and With David

4. Previously in Property A Finished Work on Chapter 1 Right to Exclude & Parcels Open to Public JMB & First Amendment Access to Malls Finished DQs Review Problems 1I & 1K(i) Intro to XQ4: Issue-Spotter

5. Previously in Property A Introduction to Chapter 2 Federal Court Deference to State Legislation & the Rational Basis Test The Eminent Domain Power & Its Limits Takings Clause of 5thAmdt Just Compensation as a Limit Democracy as a Limit Possible Need for Additional Limits When Money Not at Issue & We Don’t Trust Democratic Process

6. Previously in Property A “Public Use” as a Limit on Eminent Domain Federal Deference to State Legislation Berman and Midkiff Operation of the Rational Basis Test (& Rev. Prob. 2A): “Rationally Related” as Term of Art Might Think of as “ASH”: Arguably Slightly Helpful State Tests for Public Use Poletown(Started)

7. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Poletown (cont’d) • Hatchcock • Review Problems 2B & 2C • Kelo & Beyond

8. DQ2.09(Biscayne): Apply Poletown Tests to Facts of Midkiff • 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)

9. BISCAYNE: DQ2.09 (cont’d) SUNRISE AT ADAMS KEY

10. DQ2.09(Biscayne): Apply Poletown Tests to Facts of Midkiff Public benefit must be “clear and significant” • “Clear” as opposed to “speculative” • “Significant” as opposed to “marginal”

11. State “Public Use” Standards: Compare: City of Seattle (Wash. 1981) City of Seattle Majority Test: • Eminent Domain OK under Washington Constitution if: 1) Use is really [open to] public (private uses only “incidental”); AND 2) Public interests requireit; AND 3) The property appropriated is necessaryfor the purpose. I Won’t Test Directly, BUT Useful to Contrast with Other Tests Can Use Ideas in a Lawyering Q or an Opinion/Dissent Q

12. State “Public Use” Standards: Transition • Roughly 20 Years between Midkiff (1984) and Hatchcock(2004)/Kelo (2005) • Country Grows More Conservative & Increases Protection of Property Rights • Increasing Controversy re Cases Like Rev Prob 2B & City of Seattle involving EmDom to create new private or public-private complexes • Condemnation of shabby but functional biz or residential district • Replace it with new shopping areas and/or upscale housing units. • Leads to claims in Hatchcock & Kelo

13. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Poletown • Hatchcock • Review Problems 2B & 2C • Kelo & Beyond

14. State “Public Use” Standards: The Three Hatchcock “Situations” Hatchcock: Public Benefit is insufficient; only 3 “situations” where property acquired by EmDom legitimately ends up in private hands: (1) Public Necessity: Project is important & only way to do project is through Eminent Domain; --OR-- (2) Accountability: Private entity remains responsible to public for its use; --OR-- (3) Selection: Particular parcel(s) chosen based on facts of independent public significance.

15. Lists of Relevant Factors: “AND” v. “OR” • Three factors in City of Seattle connected by “AND” so a project must satisfy all of them to be constitutional. • Three situations in Hatchcockconnected by “OR” so a project only needs to fit one of themto be constitutional.

16. Lists of Relevant Factors: “AND” v. “OR” • Cf. Ford Focus “AND is Better” Commercials • Sweet AND/OR Sour Chicken • Nuts AND/OR Bolts • Loud AND/OR Clear

17. Lists of Relevant Factors: “AND” v. “OR” • Cf. Ford Focus “AND is Better” Commercials • BUT Sometimes OR is Better!!! • 50 Page Paper AND/OR a Final Exam • Breaking AND/OR Entering • Vomiting AND/OR Diarrhea

18. State “Public Use” Standards: The Three Hatchcock “Situations” Hatchcock: Public Benefit is insufficient; only 3 “situations” where property acquired by EmDom legitimately ends up in private hands: (1) Public Necessity: Project is important & only way to do project is through Eminent Domain; OR (2) Accountability: Private entity remains responsible to public for its use; OR (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. Need to Really Know/Understand Legal Tests Rev Prob 2C (Short Problem on 2014 Exam) Revealed Weaknesses

19. REDWOOD: DQ 2.10-2.11 REDWOODS & FERNS

20. State “Public Use” Standards: The Hatchcock “Situations” DQ2.10-2.11 (Redwood) • Public Necessity: Project is important & only way to do project is through Eminent Domain • Examples: RRs, highways, etc. • Justification: Overcome high transaction costs for key activities • OCR Dissent P181-82: Hard to determine if really necessary. Application to facts of Midkiff?

21. State “Public Use” Standards: The Hatchcock “Situations” DQ2.10-2.11 (Redwood) Note Different Possible Meanings of “Necessity” • Project is Necessary for Public Interest (Arguably part of Hatchcock#1; maybe City of Seattle #2) • Use of EmDomis Necessary for Project (Hatchcock#1; maybe City of Seattle #2; Merrill) • Site is Necessary for Project (Maybe part of Hatchcock#3; Is City of Seattle #3)

22. State “Public Use” Standards: The Hatchcock “Situations” DQ2.10-2.11 (Redwood) (2) Accountability: Private entity remains responsible to public for its use • Examples: • Could make pvt. ownership contingent on particulars (contracts) • Gov’t could retain supervision or voice in management • Justification?

23. State “Public Use” Standards: The Hatchcock “Situations” DQ2.10-2.11 (Redwood) (2) Accountability: Private entity remains responsible to public for its use • Justification: • Arguably if still public control, not entirely private use. • I.e., if gov’t effectively employing K’or to do gov’t job, seems public enough. Application to facts of Midkiff? Consider Contract Provisions that Would Help

24. State “Public Use” Standards: The Hatchcock “Situations” DQ2.10-2.11 (Redwood) (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. • Test Means? Examples?

25. State “Public Use” Standards: The Hatchcock “Situations” DQ2.10-2.11 (Redwood) (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. • Test Means: Can justify choice of land w/o reference to desires/ultimate uses of private entity. • Examples: Urban Renewal (Berman) • Justification: “Public” part is taking of the land, not who ends up with it. Application to facts of Midkiff?

26. State “Public Use” Standards: The Hatchcock “Situations” DQ2.10-2.11 (Redwood) (3) Particular parcel(s) chosen based on facts of independent public significance. • Can justify choice w/o reference to desires/ultimate uses of private entity. • Application to facts of Midkiff? • Purpose seems to be to get it out of hands of land oligopoly • BUT selected by private tenants who want to reside there. • OCR in KeloDissent says Midkifffits this category.

27. State “Public Use” Standards: The Three Hatchcock “Situations” (1) Public Necessity: Project is important & only way to do project is through EmDom; (2) Accountability: Private entity remains responsible to public for its use; (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. NOTE: Hatchcockoverruled Poletown& struck down use of EmDom to create 1300-acre biz/technology park, so Mich. S.Ct. must have believed that bothprojectswould fail all three tests. Poletowntests survive in other states. Qs on Hatchcock “Situations”?

28. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Poletown • Hatchcock • Review Problems 2B & 2C • Kelo & Beyond

29. Review ProblemS 2B & 2C: Coverage This Week Review Problem 2B • In-Class Today: Apply PoletownTests • DF This Week: Apply Midkiff & Hatchcock Review Problem 2C • In-Class Thursday: Apply HatchcockSituations • DF This Week: Apply Midkiff & Poletown

30. Review Problem 2C (S29): Set-Up for Thursday • REDWOOD: Arguments for Plaintiffs/Landowners • ARCHES: Arguments for Defendant/City • Both Sides: Be Ready to Apply All Three HatchcockSituations • SHENANDOAH: Critique; See Instructions on Assignment Sheet • Submission Due Saturday 2/21 @ 10:00 a.m. • Do the Five Assigned Arguments Once Each • Can Address One, Two or Three Situations • Not Asked for Five Arguments for Each Situation

31. Review Problem 2BShenandoah (Landowners) v. Yellowstone (City) • City losing $$$ b/c consumers prefer shopping at newer shopping centers outside city limits • City program (TAFURI)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)

32. Critique of Review Problem 2B (Arches) • See General Instructions @ Bottom of Assignment Sheet • Paragraphs 1 & 2: Address Arguments Favoring the Landowners (either about the significance of a particular fact or about the application of the Poletown tests) • Paragraphs 3 & 4: Address Arguments Favoring the City (either about the significance of a particular fact or about the application of the Poletown tests) • Written Submission Due by E-Mail Thursday 2/17 @ 10 a.m. • E-Mail me if Qs

33. Review Problem 2BShenandoah (Landowners) v. Yellowstone (City) Identify facts in the problem that are different from those in Poletown and argue that they help your client’s position.

34. Review Problem 2BShenandoah (Landowners) v. Yellowstone (City) (ii)Apply the legal standards from Poletown • Public must be “primary beneficiary” & private benefit merely “incidental.” Possible readings: • Quantitative weighing of public v. private benefit • Primary purpose • Who is driving the deal? (raised by Poletowndissent)

35. Review Problem 2BShenandoah (Landowners) v. Yellowstone (City) (ii)Apply the legal standards from Poletown • Public benefit must be “clear and significant” • “Clear” as opposed to “speculative” • “Significant” as opposed to “marginal”

36. Review Problem 2B (ii) Apply the legal standards from Poletown NOTE: May depend on whether court looks at whole TAFURI program or just this project.