Agenda - Planning Commission - 10/06/2005

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230 proposed takings were valid and that eco- nomic development qualified as a valid public use. ARGUED BY APA Suzette Keto and the organizations that sup- ported her position asked the Supreme Court to either declare that economic development is never, under any circumstance, a "public use" for the purposes of condemnation or, alternatively, to create a higher standard of judicial review for these types of questions so that courts wouid look with greater scrutiny at economic development projects. The American Planning Association, its Connecticut chapter, and the National Con§ross for Community Economic Develop- merit joined together to urge the Supreme Court to retain its ion~ history of iurispru- dence applyin§ a deferential standard of review to public use determinations. The APA amicus brief was written by Professor Thomas W. Merriil of Columbia University and John D. Echeverria of the Georgetown Environmental Law & Policy Institute. APA wrote: "Emineat domain is concedediy an unsettlin§ power, and is subject to misuse of eminent domain by providin§ a forum in which the reasons for opposition can be considered, offerin~ explanations for the proposed course of action and possible alternatives, and perhaps instillin§ a §rearer degree of understanding on the part of both the proponents and opponents of the pro- posed project..." or overuse if not properly constrained. But eminent domain is disruptive for ail who experience it, not iust those who might be abte to persuade a reviewin§ court that a particular condemnation is not 'p~blic' enou§h. The dangers of eminent domain should be addressed by assurin§ that it remains a second-best alternative to mar- ket exchan§e as a means of acquirin§ resources, by encoura§in§ careful piannin§ and public participation in decisions to invoke eminent domain, and by buildin§ on current legislative requirements that mandate additional compensation beyond the constitutional minimum for persons who experience uncompensated subjective losses and consequential dama§es .... " "Another source of protection for all propert~ owners is to assure, [o the extent possible, that eminent domain is exercised only in coniunction with a process of land- use plannin§ that includes broad public participation and a careful consideration of alternatives to eminent domain. Integratin§ the decision to use emi- nent domain into a sound planning process has a number of desirable consequences. Such a process can help minimize the use of eminent domain, by identifying alterna- tives to proposed development projects, such as reloca[in§ or re-sizing proie~ts, or perhaps for§oin§ them atto§ether. It can also reduce ;~ubtic concerns about the use THE COURT'S DECISION The Court's majority opinion mentioned "plan- nin§," "plan," and "planner" 39 times. Justice Stevens, along with Justices Stephen G. Breyer, Oavid H. Sourer, Ruth Bader Ginsburg~ and Anthony Mt Kennedy, concluded that "The city has carefully formulated an economic develop- ment plan that it believes will piovide apprecia- 5lo benefits to th~ community .... Given the comprehensive character of the plan, and the thorough deliberation, that preceded its adop- tion... [the] plan unquestionably serves a pub- lic purpose." For more than a century, the Court has "wisely eschewed rigid formulas and intru- sive scrutiny in favor of affording le§islatures broad ladtude in determining what public needs justify the use of the takings power." The Court was unwitlin§ to "second-§uess the city's considered iudEments about the efficacy of its development plan" or to "second-guess the city's determinations as to what.lands it needs to acquire in order to effectuate the project." The court's ruling, justice Kennedy said in his concurring opinion, does not "alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause." Those types of condemnations have always been unconsti.tutional, ~nd they remain unconstitu- tionaL The Kelo v. City of New London decision might be the Supreme Court's strongest valida- lion of the important role of plannin§ since Eurlid [Village of Euclid, Ohio v. Ambler Realty Co., ~7:z U,S. 365 (~.9:z6)] nearly 80 years a§o. What shoutd ~lanners take away from this opinion? First', plans are important because if they are comprehensive and preceded by thor- ough de{iberation-includin§ public participa- tion and public input-then they serve a public purpose and the public interest. The Supreme Court is tetling lower courts that they should look to the community's plan to discern what is in the public interest. Second, the courts will refrain from second-guessing the decision of the ~oca( and state e~ected officials about such matters. But the Supreme Court also cautions us that if a condemnation occurs that transfers ZONiNGPRACTICE s.05 AMERICAN PLANNING ASSOCIATION I poge 4