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Title: Donald Trump and Eminent Domain
Source: National Review Online
URL Source: http://www.nationalreview.com/artic ... inent-domain-robert-verbruggen
Published: Apr 19, 2011
Author: Robert VerBruggen
Post Date: 2015-10-07 09:21:48 by cranky
Keywords: None
Views: 400
Comments: 9

A brief history

In a free market, there’s a pretty simple process for dealing with the situation that arises when one person covets another’s belongings: The coveter makes an offer to purchase them. If the offer is rebuffed, the coveter can make a new proposal, but he cannot simply take what he wants. It’s an effective way of recognizing the impracticality of the Tenth Commandment while enforcing the Eighth.

Donald Trump’s covetous nature is not in dispute, but what many may forget is that he’s no great respecter of the admonition not to steal, either: The man has a track record of using the government as a hired thug to take other people’s property.

This is called, of course, “eminent domain.” The Constitution’s Fifth Amendment allows the government to take private property for “public use,” so long as “just compensation” is paid. In the infamous 2005 Kelo decision, the Supreme Court held that “public use” could include, well, private use, so long as the new property owner paid more in taxes than the previous one. In other words, it allowed developers and the government to gang up on homeowners. The developer gets more land, the government gets more tax money. The only losers are the original owner and his property rights.

A decade and a half ago, it was fresh on everyone’s mind that Donald Trump is one of the leading users of this form of state-sanctioned thievery. It was all over the news. In perhaps the most-remembered example, John Stossel got the toupéed one to sputter about how, if he wasn’t allowed to steal an elderly widow’s house to expand an Atlantic City casino, the government would get less tax money, and seniors like her would get less “this and that.” Today, however, it takes a push from the Club for Growth to remind us of Trump’s lack of respect for property rights.

The problem dates back to at least 1994. That year, Trump promised to turn Bridgeport, Conn., into“a national tourist destination by building a $350 million combined amusement park, shipping terminal and seaport village and office complex on the east side of the harbor,” reported the Hartford Courant. “At a press conference during which almost every statement contained the term ‘world class,’ Trump and Mayor Joseph Ganim lavished praise on one another and the development project and spoke of restoring Bridgeport to its glory days.”

The wrinkle? “Five businesses and the city-owned Pleasure Beach now occupy the land,” as the Courant put it. The solution? “The city would become a partner with Trump Connecticut Inc. and obtain the land through its powers of condemnation. Trump would in turn buy the land from the city.”

Here’s how the story concluded: “The entire development would cost the city nothing, Trump said, and no private homeowners would be affected because there are no dwellings on the land. Trump would own everything.”

That brings us to the story of the aforementioned elderly widow in Atlantic City, which starts at about the same time. The woman, Vera Coking, had owned property near the Trump Plaza Hotel for three decades, and didn’t want to move. Trump thought the land was better suited for use as a park, a parking lot, and a waiting area for limousines.

He tried to negotiate, at one point offering Coking $1 million for the land. But she wasn’t budging. So New Jersey’s Casino Reinvestment Development Authority filed a lawsuit, instructing Coking to leave within 90 days and offering compensation of only $251,000.

Perhaps the only upside to this story is that in neither case did Trump succeed. The Bridgeport plan fizzled. Coking fought in court, and — in part because these were the days before Kelo was decided, no doubt — she was lucky enough to win. In 1998, a judge threw out the case.

In 2005, however, Trump was delighted to find that the Supreme Court had okayed the brand of government-abetted theft that he’d twice attempted. “I happen to agree with it 100 percent,” he told Fox News’s Neil Cavuto of the Kelo decision.

Can Republicans support someone with so little regard for the property of others? Let’s hope not.

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TopPage UpFull ThreadPage DownBottom/Latest

#1. To: cranky (#0)

"she was lucky enough to win."

Really? Trump offered her $1 million plus free lifetime residence on any of his properties.

She ended up in a nursing home and her grandson sold the place for half that.

"Perhaps the only upside to this story is that in neither case did Trump succeed."

Wow. No bias in this story.

misterwhite  posted on  2015-10-07   10:40:41 ET  Reply   Trace   Private Reply  

#2. To: cranky (#0)

Can Republicans support someone with so little regard for the property of others? Let’s hope not.

They've been doing it for years. Everyone of them that supports illegal aliens does this.

Non auro, sed ferro, recuperando est patria

nativist nationalist  posted on  2015-10-07   10:50:15 ET  Reply   Trace   Private Reply  

#3. To: misterwhite, cranky (#1)

The NRO article is a political hit piece. Vera Coking's loss was well over 50% and closer to 75%. The property had been empty for several years when sold.

Vera Coking turned down Donald Trump's best offer, recalled by Coking as $1.9M, by Trump as $4M plus a residence elsewhere. Sabbatini's restaurant sold for $2.1M, a pawnshop sold for $1.6M.

The unoccupied property was offered for auction with a $199K reserve and sold for $530K. Carl Icahn became the new owner.


A Homeowner’s Refusal to Cash Out in a Gambling Town Proves Costly

JULY 21, 2014


“I think she got greedy and made a mistake, a big mistake,” Vincent Sabatini, a former owner of the restaurant, said of Ms. Coking. “Trump was tough, but it was just business.”

- - - - -


No Fun at Pleasure Beach

Jackson Kuhl
Aug 25, 2010

Just off the coast of Bridgeport lies the lonely barrier peninsula of Pleasure Beach. In the waning days of summer, you can wander through the remnants of the old amusement park here, listen to crying ospreys or watch the tide run in crystalline streams from Long Island Sound into a small lagoon. Whatever you do, you will be utterly alone on these 60-something acres. Pleasure Beach is deserted, and has been for the past 14 years.

On June 16, 1996, a cigarette butt or match ignited the swing bridge leading from the mainland to scenic Pleasure Beach. It was spun to the open position, where the fire reduced it to charred bones and ribs. Stranded cars were evacuated on the Port Jefferson ferry and, two weeks later, Bridgeport’s Board of Park Commissioners closed Pleasure Beach to visitors. It’s been closed ever since.

Today, Pleasure Beach can only be accessed by boat or a two-mile hike along the narrow strand from Stratford. Those willing to make the effort will find an abandoned place of weed-cracked pavement, wild turkeys and wind sighing through the dune grass—and to think, this is in Fairfield County, where beachfront lots run $1 million plus. According to the Bridgeport Parks and Recreation Department, simply setting foot upon Pleasure Beach will get you a $99 fine (a questionable assertion, considering the land below the high-tide mark is open to all).

Even before the bridge fire, Pleasure Beach had been in decline from its heyday, when thousands used to flock here to enjoy waterfront fun. Bridgeport purchased the land in 1919 for $220,000, and 18 years later assumed control of the amusement park founded in 1892. But in the 1960s, the park went bankrupt and most of the rides and equipment were sold at auction. In 1973, the ballroom burned and by the 1980s, newspaper accounts described the former summer destination as neglected and vandalized, with hypodermic needles dotting the shore and crack vials littering the parking lot. Plans in the 1980s for a local group to build a marine-centric “Amazement Park” or Donald Trump to develop a theme park on the site went nowhere.

These days Bridgeport claims it wants to revitalize Pleasure Beach with a $1.9 million federal appropriation and another $2 million in city funds. Grants from the state Department of Environmental Protection are also being sought. But don’t pack your towel and sunscreen just yet. Before that happens, the docks must be checked and, if needed, repaired; the swimming pavilion must be refurbished; studies done about environmental impact; decisions made about what to do with ruins like the Polka Dot Playhouse. It’s not even certain whether a proposed water taxi will operate from the East End of the city or from the Port Jeff ferry terminal on the far side of the harbor. No one has a specific plan or timetable for any of this.

Tim English of SavePleasureBeach.com, a website advocating the site’s restoration as a public park, says Pleasure Beach hasn’t exactly been a priority for the city. “During the Ganim administration, the state Department of Transportation offered a $23 million grant to repair the bridge,” he says. “Ganim’s aide complained that it was only two lanes. After six months, the state withdrew the offer because Bridgeport did not seem interested.”

English suspects the questionable demolition last fall of the old carousel and bumper-car pavilion—now just heaps of rubble that have yet to be removed—had nothing to do with safety and everything to do with making the site more attractive to private developers.

Still, no one knows when Pleasure Beach will be reopened to the public or if the water taxi will ever come to fruition. The mayor’s office refuses to give a deadline. A spokeswoman for the parks department says, “Possibly next year.”

So at a time when developing such a potential revenue resource seems like a no-brainer, taxpayers can look at Pleasure Beach wasting away from afar or, in an act of civil disobedience, venture out to enjoy its solitude. Maybe in 2011, they’ll reap some benefits from a paradise lost.

Trump was trying to use eminent domain under existing law.

Kelo affirmed Berman (1954) and Midkiff (1984).


Kelo v. New London, 545 U.S. 469 (2005)



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 willing 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 purpose.” 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 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, including, 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 character, the thorough deliberation that preceded its adoption, and the limited 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 challenged 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 supported by neither precedent nor logic. Promoting economic development 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 expected public benefits will actually accrue. Such a rule would represent 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 parties’ legal rights to be established before new construction can commence. 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.


U.S. Supreme Court

Berman v. Parker, 348 U.S. 26 (1954)

Berman v. Parker

No. 22

Argued October 19, 1954

Decided November 22, 1954

348 U.S. 26




The District of Columbia Redevelopment Act of 1945 is constitutional, as applied to the taking of appellants' building and land (used solely for commercial purposes) under the power of eminent domain pursuant to a comprehensive plan prepared by an administrative agency for the redevelopment of a large area of the District of Columbia so as to eliminate and prevent slum and substandard housing conditions -- even though such property may later be sold or leased to other private interests subject to conditions designed to accomplish these purposes. Pp. 348 U. S. 28-36.



U.S. Supreme Court

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984)

Hawaii Housing Authority v. Midkiff

No. 83-141

Argued March 26, 1984

Decided May 30, 1984*

467 U.S. 229



To reduce the perceived social and economic evils of a land oligopoly traceable to the early high chiefs of the Hawaiian Islands, the Hawaii Legislature enacted the Land Reform Act of 1967 (Act), which created a land condemnation scheme whereby title in real property is taken from lessors and transferred to lessees in order to reduce the concentration of land ownership. Under the Act, lessees living on single-family residential lots within tracts at least five acres in size are entitled to ask appellant Hawaii Housing Authority (HHA) to condemn the property on which they live. When appropriate applications by lessees are filed, the Act authorizes HHA to hold a public hearing to determine whether the State's acquisition of the tract will "effectuate the public purposes" of the Act. If HHA determines that these public purposes will be served, it is authorized to designate some or all of the lots in the tract for acquisition. It then acquires, at prices set by a condemnation trial or by negotiation between lessors and lessees, the former fee owners' "right, title, and interest" in the land, and may then sell the land titles to the applicant lessees. After HHA had held a public hearing on the proposed acquisition of appellees' lands and had found that such acquisition would effectuate the Act's public purposes, it directed appellees to negotiate with certain lessees concerning the sale of the designated properties. When these negotiations failed, HHA ordered appellees to submit to compulsory arbitration as provided by the Act. Rather than comply with this order, appellees filed suit in Federal District Court, asking that the Act be declared unconstitutional and that its enforcement be enjoined. The court temporarily restrained the State from proceeding against appellees' estates, but subsequently, while holding the compulsory arbitration and compensation formulae provisions of the Act unconstitutional, refused to issue a preliminary injunction and ultimately granted partial summary judgment to HHA and private appellants who had intervened, holding

Page 467 U. S. 230

the remainder of the Act constitutional under the Public Use Clause of the Fifth Amendment, made applicable to the States under the Fourteenth Amendment. After deciding that the District Court had properly not abstained from exercising its jurisdiction, the Court of Appeals reversed, holding that the Act violates the "public use" requirement of the Fifth Amendment.


1. The District Court was not required to abstain from exercising its jurisdiction. Pp. 467 U. S. 236-239.

(a) Abstention under Railroad Comm'n v. Pullman Co., 312 U. S. 496, is unnecessary. Pullman abstention is limited to uncertain questions of state law, and here there is no uncertain question of state law, since the Act unambiguously provides that the power to condemn is "for a public use and purpose." Thus, the question, uncomplicated by ambiguous language, is whether the Act, on its face, is unconstitutional. Pp. 467 U. S. 236-237.

(b) Nor is abstention required under Younger v. Harris, 401 U. S. 37. Younger abstention is required only when state court proceedings are initiated before any proceedings of substance on the merits have occurred in federal court. Here, state judicial proceedings had not been initiated at the time proceedings of substance took place in the District Court, the District Court having issued a preliminary injunction before HHA filed its first state eminent domain suit in state court. And the fact that HHA's administrative proceedings occurred before the federal suit was filed did not require abstention, since the Act clearly states that those proceedings are not part of, or are not themselves, a judicial proceeding. Pp. 467 U. S. 237-239.

2. The Act does not violate the "public use" requirement of the Fifth Amendment. Pp. 467 U. S. 239-244.

(a) That requirement is coterminous with the scope of a sovereign's police powers. This Court will not substitute its judgment for a legislature's judgment as to what constitutes "public use" unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause. Here, regulating oligopoly and the evils associated with it is a classic exercise of a State's police powers, and redistribution of fees simple to reduce such evils is a rational exercise of the eminent domain power. Pp. 467 U. S. 239-243.

(b) The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. Government does not itself have to use property to legitimate the taking; it is only the taking's purpose, and not its mechanics, that must pass scrutiny under

Page 467 U. S. 231

the Public Use Clause. And the fact that a state legislature, and not Congress, made the public use determination does not mean that judicial deference is less appropriate. Pp. 467 U. S. 243-244.

702 F.2d 788, reversed and remanded.

nolu chan  posted on  2015-10-07   12:43:59 ET  Reply   Trace   Private Reply  

#4. To: nolu chan (#3)

so you're cool with using the taking clause to confiscate someone's land for the purpose of putting up a casino parking garage ? You see ;it's irrelevent how fair you think the deal was . The person who owned the home had a right to deny the sale.

Quis custodiet ipsos custodes?

tomder55  posted on  2015-10-07   13:25:55 ET  Reply   Trace   Private Reply  

#5. To: All (#4)

btw ; that economic development that came out of the Kelo case ? Never happened .

As of the beginning of 2010, the original Kelo property was a vacant lot, generating no tax revenue for the city. In the aftermath of 2011's Hurricane Irene, the now-closed New London redevelopment area was turned into a dump for storm debris such as tree branches and other vegetation. As of February 2014, it was still vacant.

Quis custodiet ipsos custodes?

tomder55  posted on  2015-10-07   13:37:04 ET  Reply   Trace   Private Reply  

#6. To: nolu chan (#3)

The NRO article is a political hit piece.

If it was, it was years before its time.

The article was published in April of 2011, years before Trump announced his candidacy.

There are three kinds of people in the world: those that can add and those that can't

cranky  posted on  2015-10-07   16:20:15 ET  Reply   Trace   Private Reply  

#7. To: tomder55 (#4)

so you're cool with using the taking clause to confiscate someone's land for the purpose of putting up a casino parking garage ? You see ;it's irrelevent how fair you think the deal was . The person who owned the home had a right to deny the sale.

She was greedy and lost about $1.5M. Se had the right to decline millions and go to court against the government. The casino had a right to go on without her. Her property lost significant value once the casino proceeded without her. Trump made a fair offer. She didn't take it. Icahn bought it for about a quarter of Trump's offer. Vera Coking's eminent domain dispute was with a government agency.

In a similar but post-Kelo case, the New Jersey courts ruled in favor of a casino. I believe the appeals are still ongoing.


Court rules in favor of CRDA in Birnbaum eminent domain case

Posted: Tuesday, November 18, 2014 9:00 am

Atlantic County Superior Court Judge Julio Mendez ruled Monday that the Casino Reinvestment Development Authority can force Charles Birnbaum to sell his Oriental Avenue property for a fair market price.

“We’re pleased that the court upheld CRDA’s power to take property when necessary,” said Stuart Lederman, an attorney with New Jersey-based Riker Danzig, which represented the organization. “This will allow CRDA to continue its mission to revitalize Atlantic City. The court recognized that the promotion of tourism in the Tourism Act is a valid public purpose.”


This man won't let New Jersey take his home

By Chris Moody
CNN Senior Digital Correspondent
Video by Alex Rosen, CNN
Updated 10:58 AM ET, Sun June 21, 2015

nolu chan  posted on  2015-10-07   17:21:55 ET  Reply   Trace   Private Reply  

#8. To: cranky (#6)

The article was published in April of 2011, years before Trump announced his candidacy.

Your NRO slop was published April 19, 2011

The NRO Presstitute was regaling the efforts of the Club for Growth political assassination team.

From the April 19, 2011 article by NRO

In perhaps the most-remembered example, John Stossel got the toupéed one to sputter about how, if he wasn’t allowed to steal an elderly widow’s house to expand an Atlantic City casino, the government would get less tax money, and seniors like her would get less “this and that.” Today, however, it takes a push from the Club for Growth to remind us of Trump’s lack of respect for property rights.

It was specifically addressed against a Trump candidacy, but not in 2016.

Try this from April 18, 2011 for context. The Political Assassination Club tried to rerun their bullshit this year.


Club for Growth Calls Donald Trump a Liberal

Lindsey Boerma
The Atlantic
Apr 18, 2011

A leading free-market group says the property-magnate-turned-reality-star is just another big-government lefty

The latest indication that some Republicans are becoming uneasy about the prospect of a Donald Trump presidential candidacy: Conservative powerhouse Club for Growth took aim at the real-estate tycoon-turned-reality-TV-star on Monday, labeling him "just another liberal."

Despite considerable skepticism about whether Trump's presidential ambitions are any more than "a publicity stunt," as Club for Growth President Chris Chocola contends, party leaders appear to be growing more concerned about the prospect of a run by a man who has promised to dump $600 million of his own money into the race.

"I think it's a problem for the Republican Party," GOP pollster Linda DiVall says. "Many view Donald Trump as a not very serious candidate -- you hear the word 'circus' thrown around where he's involved -- and that's going to detract from the other candidates in the field."

The Club for Growth was derisive about the possibility of a Trump candidacy but is taking the prospect seriously enough to go on the attack.

nolu chan  posted on  2015-10-07   18:02:53 ET  Reply   Trace   Private Reply  

#9. To: cranky (#0)

This is called, of course, “eminent domain.” The Constitution’s Fifth Amendment allows the government to take private property for “public use,” so long as “just compensation” is paid. In the infamous 2005 Kelo decision, the Supreme Court held that “public use” could include, well, private use, so long as the new property owner paid more in taxes than the previous one. In other words, it allowed developers and the government to gang up on homeowners. The developer gets more land, the government gets more tax money. The only losers are the original owner and his property rights.

What the court actually said, citing precedent from 1906.

Kelo v. New London, 545 US 469 (2005) (footnotes omitted)

Opinion of the Court Justice Stevens delivered the opinion of the Court.

In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.” 268 Conn. 1, 5, 843 A. 2d 500, 507 (2004). In assembling the land needed for this project, the city’s development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city’s proposed disposition of this property qualifies as a “public use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.



Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with commoncarrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case. As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896). Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A. 2d, at 536. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute challenged in Midkiff, 467 U. S., at 245, the City’s development plan was not adopted “to benefit a particular class of identifiable individuals.”

On the other hand, this is not a case in which the City is planning to open the condemned land—at least not in its entirety—to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e. g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e. g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158–164 (1896). Thus, in a case upholding a mining company’s use of an aerial bucket line to transport ore over property it did not own, Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 531 (1906). We have repeatedly and consistently rejected that narrow test ever since.

The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.

nolu chan  posted on  2015-10-07   18:36:26 ET  Reply   Trace   Private Reply  

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