Saturday, November 10, 2007
Claims of Pretextual Takings Post-Kelo
The D.C. Court of appeals recently held that a property owner can challenge a taking based on a blight designation as pretextual. I've had some e-mail discussion with some folks about the case (Franco v. National Capital Revitalization Corp, 930 A.2d 160 (D.C. 2007)) and whether this type of challenge is the kind of claim of pretext that the Kelo majority expressly contemplated or whether it is an end-run around Kelo. I'm waffling, and need to think about it more, but wanted to note the decision. Another interesting issue, which I also need to think about more, is whether this creates a split with the Second Circuit's recent Didden decision.
UPDATE: Ilya Somin at the VC has a very thoughtful post on this case. Ilya is more up on this issue than anyone I know. Check it out.
Ben Barros
[Comments are held for approval, so there will be some delay in posting]
https://lawprofessors.typepad.com/property/2007/11/claims-of-prete.html
Comments
I represent several of the land owners and merchants at this shopping center. There is also litigation in federal court and a published opinion Rumber v. DC, 487 F.3d 941 (D.C.Cir. 2007). There are many complicated issues in this case. I suggest that professors may be well-advised to discuss the cases with the attorneys working on them. It is my position that there was not an economic development plan. Also, the economic development agency was abolished as of October 1 and the authority to continue this project has been transferred to the D.C. Office of the Deputy Mayor. I would be glad to provide more information on these cases.
Elaine Mittleman 703 734-0482
Posted by: Elaine Mittleman | Nov 11, 2007 8:19:45 PM
Ben:
I agree with your assessment that this new case is not at all inconsistent with Kelo. In Kelo, Justice Stevens stressed that the claimed public use in Kelo was not pretextual. Among other points, he discussed the State of Connecticut's determination that New London was a "distressed municipality;" and he stressed other facts, e.g., job losses, that supported the need for redevelopment. He also reiterated that the City could not simply take land from one private owner in order to benefit another private owner. Thus, the majority opinion in Kelo amply justifies lower courts in examining whether or not a claimed public use is purely pretextual.
Best.
Dan
Posted by: Dan Cole | Nov 11, 2007 7:49:20 AM