PROPERTY D SLIDES2-11-14

Tuesday Feb 11 Music: Renee Olstead (Self-Titled 2004)

Lunch Today: Meet on Brix @ 12:25Hubbard, Jarzabek, McKain, Meads, Melendez,

Morey

FINAL EXAM QUESTIONSChoose Three of Four

• XQ1: LAWYERING

• XQ2: SHORT ANSWERS (Choose Three of Four)

• XQ3: OPINION/DISSENT

• XQ4: TRADITIONAL ISSUE-SPOTTER

FINAL EXAM QUESTION 4ISSUE-SPOTTER

• Long Fact Pattern

• Generally Two to Four Major Subjects

• At Least One Statutory Issue

FINAL EXAM QUESTION 2ISSUE-SPOTTER

Relevant Skills

•Recognizing Relevant Legal Issues

•Identifying Most-Contested (i.e.,Most Important) Topics & Making Best Arguments for Each Party

•Recognizing Significance of Facts in Problem

•Presenting Analysis in Organized Way

Chapter 2: The Eminent Domain Power Chapter 2: The Eminent Domain Power & the Public Use Requirement& the Public Use Requirement

•Federal Constitutional Background

•State Public Use StandardsState Public Use Standards•Poletown cont’d (Rev. Prob. 2B)• City of Seattle

•Hatchcock

•Kelo & Beyond

Review Problem 2BReview Problem 2B

•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)

ARCHES: Review Problem 2B (Critique)

DELICATE ARCHES

Critique of Review Problem 2B Critique of Review Problem 2B (Arches)(Arches)

• For General Instructions See Info Memo #1 @ IM10• 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 2/13 @ 10 a.m. • E-Mail me if Qs

YELLOWSTONE (Review Problem 2B)

GIANT GEYSER

Review Problem 2B (Yellowstone)Review Problem 2B (Yellowstone)

Identify facts in the problem that are different from those in Poletown and argue whether/how those

facts should affect the outcome.

Khoury; George; S.Gallagher; Ireland

Review Problem 2B (Yellowstone)Review Problem 2B (Yellowstone)

(ii) Apply the legal standards from Poletown

(1)Public must be “primary beneficiary” & private benefit merely “incidental.” Possible readings:

a. Quantitative weighing of public v. private benefit

b. Primary purpose

c. Who is driving the deal? (raised by Poletown dissent)

Greenberg; Giles; Pan; Schiff

Review Problem 2B (Yellowstone)Review Problem 2B (Yellowstone)

(ii) Apply the legal standards from Poletown

2)Public benefit must be “clear and significant”•“Clear” as opposed to “speculative”

•“Significant” as opposed to “marginal”

Halmoukos; Abeckjerr; Iscowitz; Desir

Review Problem 2B (Yellowstone)Review Problem 2B (Yellowstone)

(ii) Apply the legal standards from Poletown

NOTE: May depend on whether court looks at whole TAFURI program or just this

project.

Chapter 2: The Eminent Domain Power Chapter 2: The Eminent Domain Power & the Public Use Requirement& the Public Use Requirement

•Federal Constitutional Background

•State Public Use StandardsState Public Use Standards• Poletown

•City of Seattle•Hatchcock

•Kelo & Beyond

BISCAYNE: DQ2.10

SUNRISE AT ADAMS KEY

State “Public Use” Standards: City of SeattleDQ2.10 (Biscayne)

City of Seattle Majority Test (S27):

•Eminent Domain OK under Washington Constitution if:

1) Use is really public; ANDAND

2) Public interests require it; ANDAND

3) The property appropriated is necessary for the purpose.

State “Public Use” Standards: City of SeattleDQ2.10 (Biscayne)

(1)Use Is Really Public

Means?

Why not met in this case?

State “Public Use” Standards: City of SeattleDQ2.10 (Biscayne)

(1)Use Is Really Public• Public Benefit isn’t same as Public Use in WA• Retail Use = Private Use

•Only OK if Private Uses “only incidental” to Public Uses like parks, museums & public squares. Examples?

State “Public Use” Standards: City of SeattleDQ2.10 (Biscayne)

(1)Use Is Really Public• Public Benefit isn’t same as Public Use in WA.

• Only OK if Private Uses “only incidental” to Public Uses.

Test met in Midkiff?

Test met in Poletown?

Applying Legal Tests from Other Sources

to the Facts of Decided Cases• Generally, purpose is not to learn more

about the decided case.

• Purpose is to learn more about how the test operates.

• Thus legal analysis within the case itself is usually not very relevant to the exercise.

State “Public Use” Standards: City of SeattleDQ2.10 (Biscayne)

(2) Public Interests Require “It”•“It” is Ambiguous: Public Interests Require …

• the Project Itself?

• the Use of EmDom to Do the Project?

• More Likely Meaning?

• Test met in City of Seattle?

State “Public Use” Standards: City of SeattleDQ2.10 (Biscayne)

(2) Public Interests Require “It”•“It” is Ambiguous: Public Interests Require …

• the Project Itself?

• the Use of EmDom to Do the Project?

• Test met in Midkiff?

• Test met in Poletown?

State “Public Use” Standards: City of SeattleDQ2.10 (Biscayne)

AND (3) The Property Appropriated is Necessary for the Purpose.

Means?

Met in this case?

State “Public Use” Standards: City of SeattleDQ2.10 (Biscayne)

AND (3) The Property Appropriated is Necessary for the Purpose.

• Particular Site Necessary to Accomplish Goals of Project

Test met in Midkiff?

Test met in Poletown?

State “Public Use” Standards: City of SeattleFollow-Up (in Washinghton)

City of Seattle II, 707 P.2d 1348 (Wash. 1985)•Same Project Restructured: • Eminent Domain only used for public portions.• Private portions acquired by direct purchase

•Wash SCt unanimously allows: Fact that important parts of project in hands of private retailers doesn’t matter if Eminent Domain not used to acquire those portions of the complex.•Landowner conceded that the 2d & 3d requirements of the test were met, so court did not have to address them.

State “Public Use” Standards: City of SeattleFollow-Up (More Generally)

• Roughly 20 Years between Midkiff (1984)/City of Seattle II (1985) 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

Chapter 2: The Eminent Domain Power Chapter 2: The Eminent Domain Power & the Public Use Requirement& the Public Use Requirement

•Federal Constitutional Background

•State Public Use StandardsState Public Use Standards• Poletown

• City of Seattle

•Hatchcock

•Kelo & Beyond

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.

Lists of Relevant Factors: “AND” v. “OR”

• Three factors in City of Seattle connected by “AND” so a project must satisfy all of them all of them to be constitutional.

• Three situations in Hatchcock connected by “OR” so a project only needs to fit one of one of themthem to be constitutional.

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

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

BISCAYNE: DQ2.11-2.12

SUNRISE AT ADAMS KEY

State “Public Use” Standards: The Hatchcock “Situations”

DQ1.11-1.12 (Biscayne)(1)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 P189: Hard to determine if really necessary.

Application to facts of Midkiff?

Application to facts of City of Seattle?

State “Public Use” Standards: The Hatchcock “Situations”

DQ1.11-1.12 (Biscayne)Note Different Possible Meanings of “Necessity”

• Project is Necessary for Public Interest (Arguably part of Hatchcock #1; maybe City of Seattle #2)

•Use of EmDom is Necessary for Project (Hatchcock #1; maybe City of Seattle #2; Merrill)

•Site is Necessary for Project (City of Seattle #3; maybe part of Hatchcock #3)

State “Public Use” Standards: The Hatchcock “Situations”

DQ1.11-1.12 (Biscayne)(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?

State “Public Use” Standards: The Hatchcock “Situations”

DQ1.11-1.12 (Biscayne)(2) Accountability: Private entity remains

responsible to public for its use•Justification: • Arguably if still public control, not entirely private use. • I.e., if govt effectively employing K’or to do govt job, seems public enough.

Application to facts of Midkiff?Insufficient Info re City of Seattle:

Consider Contract Provisions that Would Help