Property IIProperty IIProfessor Donald J. KochanProfessor Donald J. Kochan

Spring 2009Spring 2009Class 50Class 50

1 April 20091 April 2009

Today’s MaterialsToday’s Materials More Introduction to Public UseMore Introduction to Public Use

Please download, read, and be prepared to discuss.  Please download, read, and be prepared to discuss.  Be sure you read the footnotes:Be sure you read the footnotes:

http://papers.ssrn.com/sol3/papers.cfm?abstract%5Fid=907689http://papers.ssrn.com/sol3/papers.cfm?abstract%5Fid=907689

BermanBerman MidkiffMidkiff

Poletown & HathcockPoletown & Hathcock KeloKelo

Deference to Legislature IssuesDeference to Legislature Issues Redevelopment IssuesRedevelopment Issues

Planning IssuesPlanning Issues BlightBlight

RedistributionRedistribution

Discussion IssuesDiscussion Issues Definition of Public Use and Deference (whereas . . .)Definition of Public Use and Deference (whereas . . .) Redevelopment, Revitalization, Blight, and Planning IssuesRedevelopment, Revitalization, Blight, and Planning Issues Tax Revenue Issues, economic growth, employmentTax Revenue Issues, economic growth, employment Options: Private Market Acquisition (free exchange) or Options: Private Market Acquisition (free exchange) or

Eminent Domain (coercion)Eminent Domain (coercion) Holdouts as a justification for using eminent domain to Holdouts as a justification for using eminent domain to

advance certain projectsadvance certain projects Public Choice/Interest Group/Capture Theories IssuesPublic Choice/Interest Group/Capture Theories Issues

Rent-Seeking, buyers and sellers, commodityRent-Seeking, buyers and sellers, commodity Redistribution Issues – (“I can do better than you can”)Redistribution Issues – (“I can do better than you can”) Property Rule Issues/Right to Exclude v. Liability IssuesProperty Rule Issues/Right to Exclude v. Liability Issues Effects on Incentives, Predictability, Certainty, StabilityEffects on Incentives, Predictability, Certainty, Stability

Public Responses to Public Responses to KeloKelo ““Stop Eminent Domain Abuse” community activism: Stop Eminent Domain Abuse” community activism:

See, e.g., See, e.g., http://www.castlecoalition.org/http://www.castlecoalition.org/

Supplemental reading: A short discussion of Supplemental reading: A short discussion of redevelopment and urban renewal:redevelopment and urban renewal:

http://lawreview.wustl.edu/slip-opinions/kelos-lessons-for-http://lawreview.wustl.edu/slip-opinions/kelos-lessons-for-urban-redevelopment-history-forgotten/urban-redevelopment-history-forgotten/

Legislative ResponsesLegislative Responses Limiting legislationLimiting legislation ““Look Before You Leap” Analysis legislationLook Before You Leap” Analysis legislation Compensation legislationCompensation legislation

““Public Use” Jurisprudential and Legislative PredictionsPublic Use” Jurisprudential and Legislative Predictions OptionsOptions Outcome-oriented changes unlikelyOutcome-oriented changes unlikely

From the Archives:From the Archives:Chapman Post-Chapman Post-KeloKelo Program on Props 98 and 99 Program on Props 98 and 99

Eminent Domain, Property Rights, and Ballot Proposals: Eminent Domain, Property Rights, and Ballot Proposals: Where Do the Government Powers End Where Do the Government Powers End

and the Citizens' Rights Begin? – and the Citizens' Rights Begin? – A Post-A Post-KeloKelo Discussion on California Proposals 98 and 99 Discussion on California Proposals 98 and 99

April 14, 2008 5:30 p.m.April 14, 2008 5:30 p.m.

Chapman University School of LawChapman University School of LawDonald P. Kennedy Hall, One University Drive, Orange, CaliforniaDonald P. Kennedy Hall, One University Drive, Orange, California

Food Will Be Served? / MCLE Credit AvailableFood Will Be Served? / MCLE Credit Available

Sponsored by: Sponsored by: The Chapman University School of Law Federalist Society ChapterThe Chapman University School of Law Federalist Society Chapter

The Orange County Federalist Society Lawyers Chapter?The Orange County Federalist Society Lawyers Chapter?The Federalist Society Environmental Law & Property Rights Practice GroupThe Federalist Society Environmental Law & Property Rights Practice Group

After After KeloKelo, there has been a heightened debate over the appropriate use of eminent domain, or condemnation, power, particularly , there has been a heightened debate over the appropriate use of eminent domain, or condemnation, power, particularly when the ultimate beneficiaries are private parties and special interests. There has been a grassroots and citizen-based uproar as a when the ultimate beneficiaries are private parties and special interests. There has been a grassroots and citizen-based uproar as a result of the belief that the government is abusing its power through certain exercises of eminent domain. Some have stormed the result of the belief that the government is abusing its power through certain exercises of eminent domain. Some have stormed the

legislative halls, courts, and newsrooms demanding a more just appreciation of property rights. This panel will discuss these issues in legislative halls, courts, and newsrooms demanding a more just appreciation of property rights. This panel will discuss these issues in relation California Proposals 98 and 99.relation California Proposals 98 and 99.

Panelists:Panelists:

Professor Donald J. Kochan Professor Donald J. Kochan Chapman University School of LawChapman University School of Law

Mr. Christopher KoontzMr. Christopher KoontzCity Planning Associate, City of Los AngelesCity Planning Associate, City of Los Angeles Mr. Kendall MacVey, Esq.Mr. Kendall MacVey, Esq.

Best Best & KriegerBest Best & Krieger Professor Lawrence RosenthalProfessor Lawrence Rosenthal

Chapman University School of LawChapman University School of Law Mr. Timothy Sandefur, Esq,Mr. Timothy Sandefur, Esq,

Pacific Legal FoundationPacific Legal Foundation

California’s Proposition 98 California’s Proposition 98 (June 2008 – Failed to Pass)(June 2008 – Failed to Pass)

““EMINENT DOMAIN. LIMITS ON GOVERNMENT AUTHORITY.EMINENT DOMAIN. LIMITS ON GOVERNMENT AUTHORITY.INITIATIVE CONSTITUTIONAL AMENDMENT.INITIATIVE CONSTITUTIONAL AMENDMENT.

Bars state and local governments from taking or damaging private Bars state and local governments from taking or damaging private property for private uses. property for private uses.

Prohibits rent control and similar measures. Prohibits rent control and similar measures. Prohibits deference to government in takings cases. Prohibits deference to government in takings cases. Defines “just compensation.” Defines “just compensation.” Requires an award of attorneys fees and costs if a property owner Requires an award of attorneys fees and costs if a property owner

obtains a judgment for more than the amount offered by the obtains a judgment for more than the amount offered by the government. government.

Requires government to offer to original owner of condemned Requires government to offer to original owner of condemned property the right to repurchase property at condemned price when property the right to repurchase property at condemned price when property is put to substantially different use than was publicly property is put to substantially different use than was publicly stated.” stated.”

For full text and other information, see:For full text and other information, see:http://june2008.sos.ca.gov/voterguide/title_sum/prop_98_title_sum.shtmlhttp://june2008.sos.ca.gov/voterguide/title_sum/prop_98_title_sum.shtml

California Prop 99 California Prop 99 (June 2008 – passed)(June 2008 – passed)

““EMINENT DOMAIN. LIMITS ON GOVERNMENT EMINENT DOMAIN. LIMITS ON GOVERNMENT ACQUISITION OF OWNER-OCCUPIED RESIDENCE. ACQUISITION OF OWNER-OCCUPIED RESIDENCE. INITIATIVE CONSTITUTIONAL AMENDMENT.INITIATIVE CONSTITUTIONAL AMENDMENT.

Bars state and local governments from using eminent Bars state and local governments from using eminent domain to acquire an owner-occupied residence, as domain to acquire an owner-occupied residence, as defined, for conveyance to a private person or business defined, for conveyance to a private person or business entity.entity.

Creates exceptions for public work or improvement, public Creates exceptions for public work or improvement, public health and safety protection, and crime prevention.” health and safety protection, and crime prevention.”

For full text and other information, see:For full text and other information, see:http://june2008.sos.ca.gov/voterguide/title_sum/http://june2008.sos.ca.gov/voterguide/title_sum/

prop_99_title_sum.shtmlprop_99_title_sum.shtml

Supplemental Reading:Supplemental Reading:The Detroit NewsThe Detroit News

Summary on Summary on PoletownPoletown

http://apps.detnews.com/apps/history/http://apps.detnews.com/apps/history/index.php?index.php?

id=18&CFID=13523949&CFTOKEN=10id=18&CFID=13523949&CFTOKEN=10118560118560

The The City of Wayne v. HathcockCity of Wayne v. Hathcock update update – judicial reform– judicial reform

Supplemental Reading: Supplemental Reading: Chapman Law Graduate Chapman Law Graduate

Tim Sandefur on Eminent DomainTim Sandefur on Eminent Domain

http://www.castlecoalition.org/index.http://www.castlecoalition.org/index.php?option=com_content&task=viewphp?option=com_content&task=view&id=46&Itemid=146&id=46&Itemid=146

Other Highly Recommended Other Highly Recommended Supplemental ReadingSupplemental Reading

Richard A. Epstein, Richard A. Epstein,

Takings: Private Property and the Takings: Private Property and the Power of Eminent DomainPower of Eminent Domain (1985) (1985)

Concluding RemarksConcluding Remarks Relate the use of eminent domain to the Relate the use of eminent domain to the

general regulatory structuregeneral regulatory structure

Remember to consider separation of powers Remember to consider separation of powers issues, including competency of the judiciary issues, including competency of the judiciary and the reasons for deferential standardsand the reasons for deferential standards

Consider whether human values/societal Consider whether human values/societal values trump the autonomy modelvalues trump the autonomy model

Reflect back on property rules and liability Reflect back on property rules and liability rulesrules