State Tests for Public Use

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State Tests for Public Use

• Michigan tests as examples
• ROYAL PALM DQ84
• FICUS DQ85-87

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POLETOWN ALLENTOWN
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ROYAL PALM DQ84APPLICATION OF PRIOR TESTS TO
POLETOWN FACTS

• Midkiff Rational Basis Test
• Identify Purpose
• Is Purpose Legitimate?
• Are Means Rationally Related to Purpose?

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ROYAL PALM DQ84APPLICATION OF PRIOR TESTS TO
POLETOWN FACTS

• Kelo Majority?

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ROYAL PALM DQ84APPLICATION OF PRIOR TESTS TO
POLETOWN FACTS

• Kelo Majority Partial Analysis
• Not OK if purpose is purely private benefit. (Not
  true in Poletown)
• Suspicious if transferring from one citizen to
  another b/c will put to better use. (Arguably
  true in Poletown)
• Different from Kelo b/c no comprehensive plan or
  thorough deliberation

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ROYAL PALM DQ84APPLICATION OF PRIOR TESTS TO
POLETOWN FACTS

• Kelo Kennedy Concurrence?

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ROYAL PALM DQ84APPLICATION OF PRIOR TESTS TO
POLETOWN FACTS

• KND Concurrence Partial Analysis
• Pro serious economic crisis public benefit
  significant arguably not incidental
• Con known beneficiary lack of comprehensive
  planning
• Hard Q Is acceding to GMs specific demands
  favoritism or sensible way to achieve big
  economic benefit?

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FICUS DQ85APPLICATION OF POLETOWN TESTS TO KELO
FACTS

• Used if land ends up in private hands
• Public must be primary beneficiary private
  benefit merely incidental
• Public benefit must be clear and significant

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FICUS DQ85APPLICATION OF POLETOWN TESTS TO KELO
FACTS

• Public must be primary beneficiary private
  benefit merely incidental
• APPLY TO KELO

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FICUS DQ85APPLICATION OF POLETOWN TESTS TO KELO
FACTS

• Possible readings of primary beneficiary test
• Quantitative weighing of public v. private
  benefit
• Primary purpose (see KND CCR)
• Who is driving the deal?

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FICUS DQ85APPLICATION OF POLETOWN TESTS TO KELO
FACTS

• (2) Public benefit must be clear and
  significant
• APPLY TO KELO

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FICUS DQ85 APPLICATION OF POLETOWN TESTS TO KELO
FACTS

• (2) Public benefit must be clear and
  significant (possible meanings)
• Assume both words have meaning
• Clear (as opposed to speculative)
• Significant (as opposed to marginal)

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Significance of Poletown Tests

• Poletown overruled by Hatchcock
• Poletown tests still used by other states (like
  Restatement 2d Carpenter I)
• Can still use Poletown facts as example of how
  the tests could be applied

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FICUS DQ86-87

• In Hatchcock, the Michigan Supreme Court
  articulates three situations where property
  acquired through Eminent Domain can legitimately
  end up in private hands.

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FICUS DQ86-87 Hatchcocks three situations

• Public Necessity Only way to do project is
  through Eminent Domain (RRs, highways, etc.)
• Justification overcome high transaction costs
• OCR P189 Hard to determine if really necessary
• DQ87 Merrill would apply in all Eminent Domain
  cases (not just private recipients)

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FICUS DQ86-87 Hatchcocks three situations

• Public Necessity Only way to do project is
  through Eminent Domain (RRs, highways, etc.)
• DQ86-87Apply to facts of Kelo

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FICUS DQ86-87 Hatchcocks three situations

• Public Necessity Only way to do project is
  through Eminent Domain (RRs, highways, etc.)
• DQ87Apply to facts of Poletown

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FICUS DQ86-87 Hatchcocks three situations

• NOTE Hatchcock
• overruled Poletown
• struck down use of ED to create 1300-acre
  business technology park.
• So must have believed that both would fail all
  three tests.

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FICUS DQ86-87 Hatchcocks three situations

• (2) Private entity remains accountable to public
  for its use
• Could make private ownership contingent on
  particulars
• Govt could retain say in management
• Justification?

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FICUS DQ86-87 Hatchcocks three situations

• (2) Private entity remains accountable to public
  for its use
• Could make private ownership contingent on
  particulars
• Govt could retain say in management
• Justification Not entirely private use if some
  public control

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FICUS DQ86-87 Hatchcocks three situations

• (3) Selection of land based on public concern
• Justification Public part is the taking of
  the land itself, not who ends up with it.
• OConnor position in Kelo
• True in Berman and (arguably) Midkiff
• Not true in Kelo Poletown

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CHAPTER FOUR REVIEW

• Federal Standards
• Midkiff facts Rational Basis Test
• Kelo facts positions in all 4 opinions
• State Standards
• Poletown facts tests (apply in other states)
• Hatchcock tests (apply in Michigan)
• Underlying Policy Concerns
• Re Eminent Domain in general
• Re Public Use