Brooklyn United for Innovative Local Development (BUILD) is a Brooklyn-based
organization.
Rev. Herbert Daughtry is the National Presiding Minister of the House of the Lord Churches. His forty years of involvement in church and community activity have earned him the title “The People’s Pastor.” Active in the struggle for the integration of schools and for community control
of schools in the late 1960s, Rev. Daughtry was a leader in the Coalition of Concerned Leaders and Citizens to Save Our Jobs, a 1970s effort which used economic boycott to win jobs and services for Blacks from Brooklyn merchants. He is president and founder of the African People’s Christian
Organization, a member of the Black Leadership Commission on AIDS, and chairman emeritus of the National Black United Front. He also has served as co-chairman of the Ministers Against Narcotics and vice chairman of the Bedford Stuyvesant Youth in Action Board.

Unions ___
many members live in Brooklyn. Unions built Metrotech, a complex, built on land assembled under eminent domain powers, that included the first Class A office building in Brooklyn since __ and first hotel since __, and that, in addition to tax revenues and construction employment, has resulted in thousands of permanent jobs for Brooklynites. That project catalyzed private construction that has invigorated the economy for Borough and City residents and built capacity for locally-owned minority- and women owned contractors.

Union labor also built Atlantic Center, a project that replaced blighted, largely vacant inner city property with a vibrant shopping center – which, in addition to
tax revenues and jobs, represented a pioneering effort to attract national retailers and a large supermarket to a relatively poor, predominantly minority eighborhood, whose residents had been denied the opportunity for highquality, low-priced food shopping that counterparts in more affluent neighborhoods take for granted.

Amici are strongly supportive of Atlantic Yards project, a proposal to replace a blighted site –currently occupied by rail yards, vacant and industrial property, but which also includes some __ units of residential housing – with a mixed use development, which is projected to include 4,000 units of rental housing, including 2,000 set aside for low- and middle-income renters, four office buildings, a sports arena designed by renowned architect Frank Gehry – which would be home to the
NBA Nets, the first professional sports franchise to call Brooklyn home since the Dodgers left town in 1957 -- six acres of park land, and a community center.

The project will bring an estimated __ permanent and 10,000 construction jobs, contracting opportunities for minority- and women-owned business and billions of dollars in net benefits, including $446.7 million in new taxes. It will make a demonstrable difference for a community where income is (__), unemployment is % – and % for African-American males, __% people live in unaffordable housing – and in a city where serious fiscal problems have caused cuts in basic services. Amici do not seek to persuade the Court of the wisdom of the Atlantic Yards proposal – the

merits of which are being vigorously debated in the editorial pages of the City’s newspapers, see, and in meetings throughout the community. Nor do the legal issues before the Court in this case have potential to directly affect the proposed project – which, like Metrotech and Atlantic Center(?), will built in a blighted area, under State law that, unlike Connecticut’s, does not authorize eminent domain exclusively for economic development purposes.

Rather, this Brief is submitted in the hope that our perspective, derived from first-hand experience with the process and results of urban development, will aid the Court’s informed resolution of the issues presented. This experience contradicts many of the assertions advanced by the Petitioner property owners and their amici. Although their accounts fairly accentuate the costs that the condemnation power can impose and highlight examples of its misuse (including notorious
instances of racial discrimination), the Court should not accept at face value the jarring suggestion – advanced by Petitioners and repeated in numerous amicus briefs – that public economic development projects should be viewed as transferring wealth from individuals of modest means and members of racial minority groups to the wealthy. The purpose of urban economic development projects like the one Petitioners seek to stop is to make a material difference in the lives of residents of economically distressed cities, the vast majority of whom are themselves extremely modest means; our experience with similar projects teaches that these purposes can be accomplished.

Summary of Argument

Petitioners and their amici acknowledge that local governments may appropriate private property – including residential property – for purposes of building a museum, highway, post office, monument, jail, or public hospital, or government office building upon payment of just compensation, but argue here that the Fifth Amendment disables them from using that same power to pursue large-scale projects whose aim is to create new jobs, generate tax revenues to support
essential city services, and improve the quality of life for those who live and work within their jurisdiction.

Such a strange rule draws no support whatsoever from this Court’s precedents, the text of the Constitution, or broader principles of constitutional law. To the contrary, those authorities conclusively rule it out: This Court has made clear that a state’s exercise of its eminent domain must be sustained if it satisfied the federal constitutional standard generally applicable to exercises of state police powers, i.e., if the state’s action is rationally related to a legitimate public purpose.

ARGUMENT

I. The Fifth Amendment, as Applied to the States through the Fourteenth, Does Not Disable State and Local Government From Taking Property for Economic Development Purposes, When Just Compensation Is Paid A. Promoting Economic Activity For The Benefit of Local Residents Is A Legitimate Object–
and A Fundamental Responsibility – of State and Local Government 1. The federal Constitution and settled American political tradition confer on elected officials
and their delegated agencies, rather than on courts, the power to define what public activities serve the public interest. See Berman, 348 U.S. at 32 (the “legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation”); U. S. ex rel. TVA v. Welch, 327 U.S. 546, 551 (U.S. 1946) (“it is the function of Congress to decide what type of taking is for a public use”). The Court has repeatedly “made clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use ‘unless the use palpably without reasonable foundation.’” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 241 (U.S.1984) (quoting United States v. Gettysburg Electric R. Co., 160 U.S. 668, 680 (1896)).

Accordingly, this Court has never held that governments’ eminent domain powers – of the federal government, let alone the States – are limited to particular “categories” of governmental undertakings. Instead, it has interpreted the Fifth Amendment’s reference to “public use” as “broad and inclusive,” as “the public welfare,”and has emphasized that the relevant constitutional inquiry is ““whether [the eminent domain] power is being exercised for a public purpose” Berman, 348 U.S. at 33. Governments are free to select the means to fulfill purposes within their broad police powers, whether by taxation and public spending, regulation, or eminent domain. See National R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 422 (1992) (“the public use requirement
of the Takings Clause is coterminous with the regulatory power”). Accord Midkiff, 467 U.S. at 240 (1984) (“The ‘public use’ requirement [of the Takings Clause] is * * * coterminous with the scope of a sovereign’s police powers."); Berman, 348 U.S. at 33 (“Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end” ); Id. at 32 (“The public end may be as well or better served through an agency of private enterprise than through a department of government--or so the [Legislature] might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects]”).

“There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy.” Ferguson v. Skrupa, 372 U.S. 726, 729 (1963); see Lochner v. New York, 198 U.S. 45, 57 (1905) (question presented was whether New York statute regulating wages and hours of bakery workers was “within the police power of the state”). This Court long ago abandoned the practice of grading exercises of state police powers against its own standards for the proper categories of governmental action, confirming that it is not only the right, but the bound and solemn duty of a state, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conductive to its ends * * * [in relation to its] internal police * * * the authority of the state is complete, unqualified, and exclusive Nebbia v. New York, 291 U.S. 502, 523 (1934) ( (quoting Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102, 139 (1837)); cf. Everson v. Board of Educ., 330 U.S. 1, 6-7 (1947) (“Changing local conditions * * * may lead a state * * * to believe that laws * * * are necessary to promote the general well-being of the people”).²

In light of the appropriately deferential inquiry, the Court in Midkiff could accurately observe, “where the exercise of the eminent domain power is rationally related to a conceivable public purpose, [this] Court has never held a compensated taking to be proscribed by the Public Use Clause.”

Under these long-settled principles, this should be an easy case: The Court has no more reason to evaluate the substantive merits of the Project at issue here, which the State has put into place in part through the use of eminent domain, than it would if Connecticut had opted to effect such a project solely through the exercise of its taxing and spending authority under state law. Connecticut’s goal in exercising its eminent domain powers here is to foster economic development in an area of the State marred by a stagnant economy and underemployment. That goal is, as dozens of this Court’s precedents confirm, entirely legitimate, Brown v. Legal Foundation of Washington, 538 U.S. 216, 231 (2003) (equating “public use” with requirement that government action be “legitimate”); see, e.g., Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 271 (1984) (“no one disputes that a State may enact laws pursuant to its police powers that have the purpose and effect of encouraging domestic industry”), Other CITES;

2. Even if substantive review of legitimate ends of State government were authorized, however, Petitioners’ remarkable suggestion that a State’s legitimate objectives do not encompass power to promote economic activity, for the purpose of adding jobs to the local economy, increasing revenues available for municipal services, and revitalizing a declining (if not blighted) downtown area categorically off-limits is plainly untenable.1
In a very real sense, the promotion of economic activity within a municipality – and prevention of economic degeneration – is not merely one of the concerns of State and local government, it is the
first one, on which all other “public uses” depend. Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (“The Constitution * * * is not a suicide pact”).

1. Economic activity is a prime determinant of a city’s vitality – and has a profound effect on the quality of life of those who live there and the life chances of the future generations. As the

experiences of city after city across the Nation attest, economic stagnation and decline can lead to a painful downward spiral – the departure of jobs and job opportunities leads residents to leave, reducing the city’s tax base, causing cutbacks in services, which induce further disinvestment, further fiscal duress, reductions in essential services, which leads to higher crime, poor public health, and diminished educational opportunity. New business do not form; institutions that can leave for suburbs and other cities do. W. WILSON, WHEN THE WORK DISAPPEARS (1996); P. DREIER, J. MOLLENKOPF, & SWANSTROM. PLACE MATTERS : METROPOLITICS FOR THE TWENTY FIRST CENTURY. 2001 This specter is especially serious in older cities, such as New London, which are small and unable to tax metropolitan wealth. See D. RUSK, CITIES WITHOUT SUBURBS (19__). ²

2. Petitioners and their amici fairly call attention to the genuine burdens borne by individuals displaced by new development, but as the trial court in this case pointed out, the interests on the other side of the case are “not abstract entities,” but rather people with dreams, too – and local governments can and should take them into account, too. Their “bound and solemn duty * * * to advance the safety, happiness and prosperity of its people,” Nebbia, requires State and local
governments to confront the “social costs” that urban economic distress imposes for those who try to find work, support their families, and educate their children.

3. Economic development efforts – including projects of the kind at issue in this case – seek to respond to and prevent these dynamics, to broaden and diversify the local tax base, create employment opportunities, revitalize declining areas and neighborhoods. Although not every such project will succeed, see Midkiff; infra, Amici can attest that the benefits are real and substantial. CITE Metrotech

Similar projects across the river – across the Nation.
The size of such projects and the realities of urban land ownership often make them impossible to accomplish without resort to eminent domain power. The revitalization of Times Square, the building of Lincoln Center, the construction of World Trade Center – symbols of New York City’s resurgence and engines of an economy that benefit thousands of people citizens – could not have been accomplished without eminent domain power. Taub Urban Studies Center (“Although sometimes controversial and costly, when used correctly [eminent domain] has proven successful in creating the foundation for significant commercial development projects in New York City, including Times Square and MetroTech.” See also 3

5. Eminent domain is never a first resort, see infra, its availability ensures that no individual property owner can effectively overrule the determination that project – or “hold out” – in the hope of extracting narrow benefits from the condemning authority. See Merill; E. Taylor, Note, The Dudley Street Neighborhood Initiative and the Power of Eminent Domain __ B.C. L.Rev. 1061, __ (1996) (explaining “taking * * * privately owned land by eminent domain seemed to [neighborhood non-profit organizations] to be the only way to acquire a coherent area of land on which to implement its plan for reclaiming urban neighborhood that had “turned into a wasteland”).

5. Beneficiaries of such projects, both direct, and indirect, are disproportionately – overwhelmingly – people of “modest means.” Tax dollars: public hospitals; public education (school lunch); affordable housing; N.Y. BUDGET. Construction jobs. Employment opportunity. Training. Minority empowerment. Indirect benefits of attracting and retaining residents, businesses, civic and cultural institutions. See generally T. BARTIK, WHO BENEFITS FROM STATE AND LOCAL ECONOMIC DEVELOPMENT POLICIES? (1991) (concluding that metropolitan economic growth benefits African Americans, the less educated, and younger workers the most; thereby, reducing income inequality).

B. Economic Development Is A Historic Power of Government Nor are Petitioners and amici correct that local government’s use of eminent domain – as
opposed to taxing, spending, or regulation – in pursuit of these economic benefits is in any sense novel or suspect.

1. As Petitioners are constrained to recognize (Br. 18-19), State Legislatures have, throughout the Nation’s history, authorized the use of the condemnation power to transfer property from one private owner to another, on the ground that the new owner’s use of the land contributed to economic growth or conferred some economic benefit on the community. Harrington, Public Use and the Original Understanding of the So-Called “Takings” Clause, 53 HASTINGS L. J. 1245, 1247 (2002) (“American legislatures repeatedly used their power of expropriation to effect all manner of social and economic engineering, frequently transferring property from one private entity to another where it was thought that the transfer would effect some greater economic purpose.”).
Resort to eminent domain for economic development purposes was a widespread feature of the legal landscape in colonial times. As Professor Hart explains:

Colonial lawmakers often regulated private landowners' usage of their land in order to secure public benefits, not merely to prevent harm to health and safety. Indeed, the public benefits pursued by such legislative action included some that consisted essentially of benefits for other private landowners. Legislatures often attempted to influence or control the development of land for particular productive purposes thought to be in the public good. Legislatures compelled owners of undeveloped land to develop it, beyond what was required by the original grants, and compelled owners of wetlands to participate in drainage projects. Owners risked losing preexisting mineral rights if they failed to conduct their mining with sufficient promptness. Owners of land suitable for iron forges risked losing their land if they declined to erect such forges themselves. In towns and cities, landowners were constrained by measures intended to channel the spatial pattern of development, to optimize the density of habitation, to promote development of certain kinds of land, and to implement aesthetic goals. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252, 1282-83 (1996).⁴