Indiana Law Review


Rebuilding the Public-Private City: Regulatory
Taking's Anti-Subordination Insights for

Eminent Domain and Redevelopment

Audrey G. McFarlane'

Abstract

The eminent domain debate, steeped in the language of property rights,
currently lacks language and conceptual space to address what is really
at issue in today's cities: complex, fundamental disagreements between
market and community about development. The core doctrinal issue
presented by development is how can we acknowledge the subordination
of citizens who happen to live in areas that are attractive to wealthier
citizens. In particular, how should we address the political process
failure reflected in the privatized methods of decisionmaking that typify
redevelopment? The conceptual language and analytical construct for
appropriately addressing these issues come from critical race theory and
its project of anti-subordination. The doctrinal model for resolving
urban development disagreement comes from the anti-subordination
principles reflected in regulatory takings doctrine. This Article argues

that regulatory takings doctrine reflects one of the most developed, yet
underappreciated, anti-subordination doctrines in the law. Both takings
and critical race theory provide a template for properly focusing on ways
to improve the lack of public accountability in development and the
unresponsiveness of eminent domain doctrine to commonly accepted
notions of fairness as a component of the public good.

''They don't know I got a[n] [eminent domain] clause ofmy own ....
They can carry me out feet first . . . but my clause say . . . they got to
meet my price! ''^

—Memphis Lee, Two Trains Running

* Professor of Law, University of Baltimore School of Law. This Article was made

possible by the generous research support of the University of Baltimore Law School. Thanks to
Ray Dubicki and Oyinade Koya for able research assistance. Additionally, thank you to the

following people who generously read earlier drafts and offered comments: Michele Alexandre,
Taunya Banks, Patience Crowder, Gerald Frug, Cassandra Jones Havard, Odeana Neal, Catherine

Smith, Terry Smith, John V. White.

1 . August Wilson, TwoTrains Running act 1 , sc. 3 ( 1 992) (statement of "greasy spoon"
proprietor Memphis Lee). See Frank Rich, Two Trains Running; August Wilson Reaches the 60'

s

With Witnesses From a Distance, N.Y. TIMES, Apr. 14, 1992, at C13 (Lee who "is negotiating a
price for the city's demolition of his restaurant, is confident he can beat the white man at his own
game as long as he knows the rules").



98 INDIANA LAW REVIEW [Vol. 42:97

Introduction

With the failed challenge to the exercise of eminent domain in Kelo v. City

ofNew London,^ the state of eminent domain constitutional doctrine continues
to be highly deferential to states and local government. For some reason, the
popular objection to the sanction of economic development as an acceptable

constitutional justification did not translate within the confines of eminent

domain jurisprudence. The unresponsiveness of federal constitutional doctrine
might be due to the ways that the challenge is typically framed. Objections are
framed in highly individualized terms as issues of private property rights,

discussed entirely along the axis of the public/private distinction.^ These

public/private arguments demanded that the Court attempt to draw what would
likely be unadministrable hard lines between valid and invalid purposes.

The overall eminent domain debate pits two types of concerns against each
other in a dialogue that speaks past the other in different languages. At the core

of the opposition are earnest and deeply held beliefs about individual property

rights: claims to reliance and expectation interests that must be protected against

governmental decisions. These emotionally charged arguments typically reflect

outrage over the perceived violation of fundamental guarantees of free choice,

control over unwanted change, and against uncertainty."^ Powerlessness in the

face of change is part of the human condition, but legal doctrinal powerlessness
in the face of human-initiated change is profoundly different; it suggests a

frustrating lack of agency in the face of unfair governmental decisionmaking,

which has the legitimizing imprimatur of democracy.

2. 545 U.S. 469 (2005).

3. See, e.g. , Larry Alexander, The Public/Private Distinction and Constitutional Limits on

Private Power, 10 CONST. COMME>nr. 361, 363-64 (1993) (evaluating the criticism of the public-

private distinction that "state action . . . [is] ubiquitous" in a system of laws); Gerald Turkel, The

Public/Private Distinction: Approaches to the Critique ofLegal Ideology, 22 LAW & Soc'Y Rev.
801, 812-13 (1988) (arguing that treating the public-private distinction as a relative concept saves

it from incoherency by a continuum of images "ultimately, rooted in imagery from the past: 'The

distinction is dead, but it rules us from the grave.'"); Joan Williams, The Development of the

Public/Private Distinction in American Law, 64 TEX. L. REV. 225, 226 (1985) (book review)

("Doctrines that incorporate the public/private distinction include the principles that localities may

issue bonds only for 'public purposes' and may be sued for torts committed in their private

(proprietary) but not their public (governmental) capacity; that the government may take land in

eminent domain only for 'public uses.'") (citations omitted).

4. See Kristi M. Burkard, No More Government Theft of Property! A Call to Return to a
Heightened Standard ofReview After the United States Supreme Court Decision in Kelo v. City

of New London, 27 Hamline J. Pub. L. & Pol'y 1 15 (2005); Gideon Kanner, The Public Use
Clause: Constitutional Mandate or "Hortatory Fluff"?, 33 Pepp. L. Rev. 335 (2006); Brent

Nicholson & Sue Ann Mota, From Public Use to Public Purpose: The Supreme Court Stretches
the Takings Clause in Kelo v. City of New London, 41 GONZ. L. Rev. 81 (2005); Sonya D. Jones,
Note, That Land Is Your Land, This Land Is My Land . . . Until the Local Government Can Turn
Itfor a Profit: A Critical Analysis o/Kelo v. City of New London, 20 BYU J. PUB. L. 139 (2005).



2009] REBUILDING THE PUBLIC-PRIVATE CITY 99

Arguments by urban development proponents ofeminent domain are rational

in defense of the need for both growth and change to reverse or avert urban

decline.^ At the core of these arguments is a communitarian-like defense of the

need for eminent domain: use "change" as a route to progress and urban

economic health.^ That such change and growth may come at the expense of a
few is a price worth paying in order to protect and promote the interests of the

general good of the local polity.

Currently, there is no conceptual space or language in this property versus

community debate to meaningfully acknowledge and address what is really at
issue in today' s cities: complex, fundamental disagreements between market and

community about development, economic growth, prosperity, and communal
needs. The overarching question fueling the eminent domain issue is, can, and
should, legal doctrine address the structural shift and current biases of the global

economy? Market demand, fueled by globalization, weighs the interests of
wealth more than the disaggregated claims of property rights presented by
residents (either tenants or owners). This results in types, locations, and methods

ofdevelopment that are subordinating. An unanswered economic question about
eminent domain is how the globalized economy affects or controls local
government' s need to work to further local economic development. Are there so
few choices left after globalization that the current approaches to economic

development are inevitable?^

Doctrinally, the specific issue is how to address the subordination of citizens
who happen to live in areas that are now attractive to wealthier citizens. We have
not grappled with subordination resulting from the state and local political

process. This subordination is reflected in the privatized method of

decisionmaking that typifies redevelopment. Redevelopment' s improvements

most often come at the expense of a consistent few types of persons: poor,
working class people; however, there is an increasing effect on middle-class

residents.

The conceptual language and analytical construct for addressing these issues
come from critical race theory. Race, class, and wealth have long been at the

5. See, e.g. , Brief for the American Planning Association et al. as Amici Curiae Supporting

Respondents, Kelo v. City ofNew London, 545 U.S. 469 (2005) (No. 04-108), 2005 WL 166929;
Daniel H. Cole, Why Kelo Is Not Good Newsfor Local Planners and Developers, 22 Ga. St. U. L.

Rev. 803 (2006); Asmara Tekle Johnson, Privatizing Eminent Domain: The Delegation ofa Very

Public Power to Private, Non-Profit and Charitable Corporations, 56 AM. U. L. Rev. 455 (2007);

Marc B . Mihaly, Living in the Past: The Kelo Court and Public-Private Economic Redevelopment,

34 Ecology L.Q. 1 (2007).

6. See Cole, supra note 5, at 824 (noting that main supporters of the eminent domain power

are "local government groups, such as the National League of Cities, city planners, and

developers").

7. A growing body of literature suggests that globalization need not have taken either the
shape or the pace that it has in the United States. See, e.g. , William Sites, Primitive Globalization ?

State andLocale in Neoliberal Global Engagement, 1 8 Soc. THEORY 1 2 1 , 1 25 (2000) (arguing that

different nations understand and have responded to globalization differently).



100 INDIANA LAW REVIEW [Vol. 42:97

heart of the claim against eminent domain. The debate over eminent domain is
inadequately acknowledged as a geographically and racially identified debate

over development now being fueled by globalization. Prior to Kelo v. City of
New London,^ eminent domain and redevelopment was largely a Black and urban
phenomenon. The introductory epigraph quotes Memphis Lee, a character in an
August Wilson play, and illustrates that eminent domain and redevelopment have

been such a part of the Black American experience that it makes an appropriate

plot. The perceived need to improve dilapidated, underserved, economically
disconnected communities has been primarily located in poor or working-class.

Black neighborhoods in the inner city. As demonstrated by the massive
disruptions of community resulting from poorly conceived and poorly executed
redevelopment schemes during the urban renewal era, the oppression of the

"blight" designation predates Kelo, yet has long been accepted as part of the

normal terrain of the urban landscape. Kelo, however, geographically decoupled

eminent domain from the inner city and made clear that the power could
potentially be exercised anywhere, even outside of the Black inner cities.^ By
clarifying that "economic development" now permits property and communities
to theoretically be taken and remade anywhere, the oppressive aspects of the

broad term "development" is now receiving long overdue attention. ^^

The purpose of this Article is to bridge the language gap in the eminent
domain discourse by translating the property rights language into the anti-

subordination language of critical race theory. The best legal doctrinal model for
resolving these urban development disagreements comes from the suburbs,^

^

from the anti-subordination principles reflected in regulatory takings doctrine.
^^

8. 545 U.S. 469 (2005).

9. This point was presaged by Hawaii Housing Authority v. Midkijf, 467 U.S. 229, 242

(1984), where the eminent domain context was outside the inner city and focused on remedying a

problem of oligopoly and concentration of land ownership.

1 0. The perception that the doctrine has shifted geographically has led to an alliance between

otherwise strange bedfellows. Conservative property rights groups, small business owners,

communitarians, and the NAACP have all united to oppose eminent domain. See Abraham Bell
& Gideon Parchomovsky, The Uselessness ofPublic Use, 106COLUM. L. REV. 1412, 1418 (2006)
("The case united, if only for a short while, such unlikely allies as the Institute for Justice, the

NAACP, Richard Epstein, and Amitai Etzioni, all of whom opposed the planned taking.")

(footnotes omitted).

1 1

.

Regulatory takings doctrine arises mainly from development controversies in suburban

and rural settings. Though exercises of eminent domain have largely been confined to urban

settings, they are increasingly occurring in inner-ring suburbs. See Wendell E. Prichett, Beyond

Kelo; Thinking About Urban Development in the 21st Century, 22 Ga. St. U. L. Rev. 895, 914

(2006) (arguing that the Kelo controversy reflects the move of the use of eminent domain to

suburban locations).

12. See, e.g. , Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302

(2002). Although Tahoe-Sierra ostensibly stands for a very deferential standard for local

government, which most experts agree means that the vast majority of takings challenges will fail

under federal constitutional grounds, takings doctrine, nevertheless, illustrates what courts have



2009] REBUILDING THE PUBLIC-PRIVATE CITY 101

Because regulatory takings doctrine reflects one of the most developed, yet
underappreciated, anti-subordination doctrines in the law, it provides a template

for properly focusing on ways to improve the lack of public accountability and
increase development's responsiveness to commonly accepted notions of public
good. Financially compensated urban eminent domain condemnations and
financially uncompensated exercises of suburban regulatory power (through
moratoria on development or development exactions) involve analogous
discretionary decisionmaking. In regulatory takings doctrine, the Supreme Court
is interested both in individual property rights and in protecting property owners

as a group from the public enterprise of government and the public needs of the
general welfare.

^^

The evolution of the ad hoc doctrine of regulatory takings reflects an
imperfect, yet effective, attempt to insulate private property owners from the
structural inequities of the political process. In such cases, the harms to a few,
or to consistently disadvantaged groups that are unable to affect governmental

decisionmaking, suggests a structural compromise of property rights. The
doctrine's evolution includes attempts to harden property rights protections by
intervening to protect property owners on principle. ''* This evolution suggests
that regulatory takings is an anti-subordination doctrine. Thus, regulatory

takings' anti-subordination logic allows us to account for the impact of eminent

domain on property owners as well as on community. It allows us to move past
focusing solely on the problems of the property owners to define the problem.
We shift instead to a definition that encompasses the resident (whether owner or
renter) and the small business person (a commercial resident), as well as the

problems of low-wage workers who want to join in a community either as
resident or laborer.

Part I of this Article discusses the nature of development disagreements in
cities and the problems in both the Kelo majority and dissenting opinions. I
argue that deference to local government in determining public purpose makes
sense, but fails to account for the subordination inherent in much redevelopment.
I also argue that the test advanced by the Kelo dissent, which reflects the
prevailing view in the United States as indicated by the flurry of state eminent
domain legislation and some subsequent state court decisions, ^^ is unduly narrow
and unadministrable. The dissent's concern for the impact of eminent domain

found most compelling to protect for property owners. See infra Part lI.E.

13. See, e.g., Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-26 (1978)
(discussing the important factors in regulatory takings jurisprudence).

14. See, e.g., Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831 (1987) (adopting a

categorical rule that a public easement was the equivalent of a permanent physical occupation and

an invalid taking regardless of the impact on the market value of the land); Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (requiring tenants to receive cable was a taking
because the presence of the cable wire on the property owner's building destroyed the right to

exclude).

15. See David A. Dana, The Law and Expressive Meaning of Condemning the Poor After
Kelo, 101 Nw. U. L. Rev. 365, 372-73 (2006).



102 INDIANA LAW REVIEW [Vol. 42:97

approaches, but fails to fully adopt, an anti-subordination logic. I seek to expand

upon these concerns by fully explicating the hidden and not-so-hidden
subordination in redevelopment.

Part n explores Fifth Amendment Takings rationale and its implicit Equal
Protection concerns as ways to doctrinally frame the obligations of government
to refrain from using its powers to subordinate certain citizens. Part n also
discusses the relevance of development disagreements in the suburbs and the

effort to define property rights to protect one's property in the face of great

public desire to preserve nature. I trace the evolution of the reasoning of

regulatory takings doctrine in particular and examine the Court' s attentiveness

in scrutinizing the nature of the harm suffered. The imperfect evolution of the
doctrine's attempt to create hard and fast property-based protections against

government decisionmaking has, at the very least, signaled to local governments

that they should tread carefully when imposing anti-development regulation and
individual interests are in conflict with great public need.^^ The principles
derived from regulatory takings suggest a "gut" fairness standard that must be
applicable to disagreements over redevelopment. These disagreements manifest

most often in disputes over the exercise of eminent domain.

Part in concludes by suggesting how critical race theory' s anti-subordination
principles might be applied in the context of a "'carefully considered'

development plan."'^ If the plan is to be a validating device for redevelopment,

it must be formulated to ensure some likelihood that it reflects representative
interests within the polity.

I. Development Disagreements in the City

A. The Supreme Court Majority's Embrace ofRational Deference

1. In the Beginning: Berman v. Parker and Urban Renewal.—The Supreme
Court's eminent domain jurisprudence illustrates the consistent, yet evolving,
nature of disagreements over development in the cities. When the first
redevelopment case of the modem era, Berman v. Parker, ^^ was decided, the
motive for redevelopment was to offset the beginnings of urban decline by
eliminating slums and redesigning the community according to the modem
planning principles of the time.^^ The petitioners' arguments focused on the

1 6. See Ann E. Carlson & Daniel PoUak, Takings on the Ground: How the Supreme Court 's
Takings Jurisprudence Affects Local Land Use Decisions, 35 U.C. DAVIS L. REV. 1 03, 116 (200 1

)

(indicating that "California planners have a high awareness of the [U.S. Supreme Court Takings]

cases").

17. See Kelo v. City ofNew London, 545 U.S. 469, 478 (2005) (quoting Kelo v. City ofNew
London, 843 A.2d 500, 536 (Conn. 2004)).

18. 348 U.S. 26(1954).

19. For an extensive discussion of the modernist planning principles and their impact on the

urban renewal era, see Keith Aoki, Race, Space, and Place: The Relation Between Architectural

Modernism, Post-Modemism, Urban Planning, and Gentrification, 20 FORDHAM Urb. L. J. 699,



2009] REBUILDING THE PUBLIC-PRIVATE CITY 103

expansion of the redevelopment area beyond acknowledged slum areas and the
insufficiency of the Redevelopment Authority's justifications for the plan.
Petitioners argued their store was not properly characterized as blighted slum
housing because general aesthetics was not a proper public purpose, and the
transfer of the property from the Redevelopment Authority to private real estate
developers was not a public use.^^ These arguments continue to this day to
encompass the core of the arguments against exercises of eminent domain for
economic development.^^ As illustrated by Keith Aoki's work, the development
disagreement of the urban renewal era was the conflict between what was
perceived to be modem and undesirably pre-modem.^^ There was the sense of
an inexorable need to progress and abandon the past in order to properly meet the
future. More concretely, the city foresaw a need to modernize in order to
survive, but residents felt the changes came at their expense. Even though
redevelopment plans were allowed to encompass viable working neighborhoods,
the Berman Court affirmed the propriety of eminent domain used for these
purposes.^^ The thought was that scientific excising of diseased or harmful areas
needed to include adjacent unblighted land for a thorough, comprehensive

redesign to prevent worsening conditions. ^"^ The Court found that this strategy
was necessary and appropriate so long as the government said it was.^^

2. The Difference Between Now and Then: Urban Renewal Versus
Economic Development.—The objections raised in Berman are not dissimilar
from today's eminent domain objections. The redevelopment scenarios in each
case, although separated by fifty-plus years and labeled differently, are quite
similar. The concern in both New London and Southwest D.C. was, and is, to
reverse decline and keep the cities viable.^^ What has changed about today's

767 (1993).

20. Berman, 348 U.S. at 3 1 . Of course, what took place after the decision was drastic, poorly

planned clearance and demolition, not just of slums and dilapidated housing, but of thriving

neighborhood commercial districts and residential areas. Entire communities were displaced

throughout the United States, usually working-class, and Black. This gave urban renewal the bad

name it still carries today. See MARTIN ANDERSON, The Federal Bulldozer: A Critical
Analysis of Urban Renewal 1 949- 1 962, at 8-9 ( 1 964); Jane Jacobs, The Death and Life of
Great American Cities 5 (1961); Wendell E. Pritchett, The "Public Menace" ofBlight: Urban

Renewal and the Private Uses ofEminent Domain, 21 YALE L. & Pol'y Rev. 1, 47 (2003).
21. See, e.g., Kelo, 843 A.2d 500 (plaintiffs challenge whether economic development is a

valid public use and whether the taking of plaintiffs' land was reasonably necessary to the

development plan).

22. See Aoki, supra note 19, at 765-73.

23. fi^rma/i, 348 U.S. at 34-35.

24. Id.

25. Mat 36.
26. See Mihaly, supra note 5, at 4 (arguing that "[sjimple ignorance of the transformed and

transforming nature of city-center land use development lies at the heart of the pervasive popular

reaction to the Kelo decision. Americans enjoy the fruits of economic redevelopment .... They

do not, however, understand how the transformation occurred"). Mihaly also argues that the Kelo



104 INDIANA LAW REVIEW [Vol. 42:97

development disagreements, however, is the prevailing view of what needs to be

done to keep cities viable in the twenty-first century. Dramatic changes have

taken place in available types of employment; the opportunity for stable, well-

paid, self-directed work continues to decline.^^ The gap continues to widen
between the highly compensated and everyone else.^^ Technology allows for

sudden inflation and deflation ofmarkets, economies, and currency through rapid

global investment and disinvestment.^^ These changes have been heightened by

the United States' relatively rapid entry into liberalized markets and

globalization.^^ Thus, the problem is the same yet different. Adding the global
dimensions of our collective exposure, and the city's exposure, to homogenizing

market forces makes the already high stakes even higher. What is also different
is that the underlying plan supporting the exercise ofeminent domain in Kelo was
openly conceived in tandem with, and designed to meet the specific needs of, a
private corporation, Pfizer Pharmaceutical.^' The Berman question remains but
is perhaps attenuated: what should a city like New London do to address dire
economic conditions? In older, inner-ring suburbs that have lost their economic

and social purpose, what can be done to address the reality of their decline?^^

In holding that economic development met the Fifth Amendment standard for
public use by serving a valid public purpose,^^ the Kelo majority opinion

carefully navigated a minefield of problems and contradictions. The problems
all concern identifying a principled line that distinguishes proper from improper

takings. In particular, the overt privatization of the development process

produces a great challenge to the underlying public rationale of eminent domain.

In order to provide continued justification for a city's exercise of eminent

domain, the Kelo opinion had to decide between the private impact on resistant

property owners and the public welfare. Although the Court noted the deeply

majority opinion follows Berman, but does not follow its pro-development stance. See id. at 59.

27. See David Dooley & Joann Prause, The Social Costs of Underemployment:
Inadequate Employment as Disguised Unemployment 11-14 (2004) (discussing differing

patterns of under-employment for men, women, and minorities).

28. See Saskia Sassen, New Employment Regimes in Cities, in Cities, Enterprises and
Society on the Eve of the 2 1st Century 129, 136 (Frank Moulaert & Allen John Scott eds.,
1997) (noting a dualization in wages in information and knowledge-intensive service industry

wages).

29. See LARRY J. Ray, Globalization and Everyday Life 66-67 (2007) (discussing the

networks of trust and cultural practices that support rapid global capital flows).

30. See Sites supra note 7, at 127.

31. Kelo V. City of New London, 545 U.S. 469, 477-78 (2005).
32. See generally Mole Davis, Ozzie and Harriet in Hell: On the Decline ofInner Suburbs,

in Sprawl and Suburbia 27 (William S. Sanders ed., 2005); William H. Lucy & David L.
Phillips, Confronting Suburban Decline: Strategic PlanningforMetropolitanRenewal

18-19 (2000).

33. Kelo, 545 U.S. at 484 ("Because that plan unquestionably serves a public purpose, the

takings challenged here satisfy the public use requirement of the Fifth Amendment.").



2009] REBUILDING THE PUBLIC-PRIVATE CITY 105

held personal value placed on the property,^"^ the dashed feelings of the few were

outweighed by the potential benefits to the many.^^ By emphasizing the city's
perspective, the majority opinion was able to consider the dire economic

conditions in New London separate from the specific interests that different
groups of citizens, particularly residents of the redevelopment area, might have

had.^^

3. The Kelo Majority and Legitimizing the Privatized City as Public.—
Possibly the most difficult problem in crafting eminent domain doctrine is how
to address the intertwined private-public nature of the redevelopment.^^ If a city

believes that it absolutely must facilitate private business, what happens to

assumptions that cities are public and acting on behalf of the general welfare?

Does the city, by working so closely with, and acting in the interests of, a private

corporation, lose its public character? Who gets to formulate the answer?
According to Kelo, the city and the state give the answer.^^ According to both

dissenting opinions, it is the courts who give the answer on behalf of property
owners.^^ Recall that the arguments presented centered on the transfer of the

property to a private company to redevelop the property for its own private
benefit."^^ Because the Court has long-used a functional distinction to treat cities

as having a public or private character,"^' it is no longer sufficient for the City to

formally, as a matter of its legally designated identity, be the City in order to be

public and entitled to exercise eminent domain. The "public-ness" of the City is,
in effect, a rebuttable presumption."^^ Thus, the overall task for the Kelo majority

opinion was to restore the City's eroding public legitimacy. It attempted to do

so first by resorting to legal formalism and finding that the first source of City

power and legitimacy came from the State."^^ This, of course, could not be the

34. See id. at 475 (noting that Kelo had made extensive improvements to her house and

valued it for its view).

35. See Alberto B. Lopez, Weighing and Reweighing Eminent Domain's Political

Philosophies Post-Kelo, 41 Wake FOREST L. Rev. 237, 243-45 (2006) (discussing the competing
influences of republicanism and liberalism in the logic and philosophy of eminent domain).

36. See Kelo, 545 U.S. at 483-84.

37. See CHRISTOPHER B. LEINBERGER, TURNING AROUND DOWNTOWN: TWELVE STEPS TO

Revitalization 5 (Brookings Institution 2005) (describing today's approach to development as

a ''private/public partnership").

38. See Kelo, 545 U.S. at 47S.

39. Id. at 494 (O'Connor, J., dissenting), 506 (Thomas, J., dissenting).

40. Id. at 485 ("Petitioners contend that using eminent domain for economic development

impermissibly blurs the boundary between public and private takings. Again, our cases foreclose

this objection. Quite simply, the government's pursuit of a public purpose will often benefit

individual private parties.").

41. See, e.g., Nat'l League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v.

San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).

42. See id.

43. Kelo, 545 U.S. at 483-84 (noting that the City invoked a state statute specifically allowing

eminent domain for economic development to effectuate its redevelopment plan).



106 INDIANA LAW REVIEW [Vol. 42:97

sole determinant of the sufficiency of the City's "publicness" because the

authority derived from the State does not speak directly to the eminent domain
objections. The main challenge to the City's public legitimacy stemmed from
doubt about the City's public motivations and the certainty that they were
pretextual because private interests were at the heart of the City's decisions."^

The Court used the phrase purely private purpose as an example of potentially
pretextual public purpose."^^ A city having an actual purpose of bestowing a
private benefit would supposedly be engaging in an arbitrary and capricious due
process violation."^^

The other aspect of the city's eroding public legitimacy is the breadth of
"economic development" as a justification. Many find economic development
an unconvincing justification because anything can be justified as done in
furtherance of economic development. Too often, the incremental, tertiary
benefits ofeconomic development are over-touted as real."^^ The results ofpublic
subsidy, either through direct financial support or assistance of eminent domain
for site assembly, are rarely scrutinized and promises for jobs are rarely

enforced."^^

The next significant source for strengthening the City's public legitimacy in
the majority opinion comes from the City's planning function: New London had
exercised eminent domain in connection with a '"carefully considered'
development plan.'"^^ The plan itself was regarded as legitimate because the
reality of dire conditions in the city demonstrated a need to improve economic

conditions. New London had long slipped off the national economic radar and
recently lost its naval installation.^^ The city was also designated by the State as
a "distressed municipality" eligible for state financial assistance.^^ From the

44. Mat 485.
45. Id. at 477 (citing Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 245 (1984)).

46. See id. at 478 n.5.

47. See, e.g., Peter D. Enrich, Saving the States from Themselves: Commerce Clause

Constraints on State Tax Incentivesfor Business, 110 Harv. L. Rev. 377, 390-91 (1996).

48

.

See Mark Richard Lindblad, PerformanceMeasurement in Local Economic Development,

41 Urb. Aff. Rev. 646, 646 (2006) ("Despite the trend toward accountability in the public sector,

little inferential research exists on the use ofaccountability tools ... in local economic development

.... [I] n municipal policy making, both structural constraints and local choices matter, but local

choices matter more."); see also JULIAN Goss ET AL., COMMUNITY Benefits Agreements:

Making Development Projects Accountable 21-22 (2005) (recommending ways to enforce

local economic development agreements).

49. See Kelo, 545 U.S. at 478 (quoting Kelo v. City of New London, 843 A.2d 500, 536
(Conn. 2004)).

50. Id. at 473 ("In 1 996, the Federal Government closed the Naval Undersea Warfare Center,

which had been located in the Fort Trumbull area of the City and had employed over 1 ,500

people.").

51. Id.; see CONN. Gen. Stat. Ann. § 32-9(p) (West 2003) (defining distressed municipality,

a term which arose from the federal Urban Development Action Grant (UDAG) program.

Following termination of the UDAG program, the designation made the city eligible for state



2009] REBUILDING THE PUBLIC-PRIVATE CITY 107

majority's perspective, the validity of the City's purpose was ratified because it

was part of a carefully considered plan of development, as well as by the
traditional local and state activity of promoting economic development.^^ Thus,

the problem addressed sufficiently matched the stated purposes of the

development plan.

Curiously, the comprehensiveness of the development plan is also a

legitimizing basis for the exercise of eminent domain. This is ironic because the

underlying objection to the exercise of eminent domain often is to the

comprehensiveness of the plan. While the Court acknowledged that the Pfizer

and New London Development Corporation (NLDC) plans were connected,
"local planners [by inference the NLDC] hoped that Pfizer would draw new
business to the area, thereby serving as a catalyst to the area's rejuvenation,"^^

the Court found that the transfer was a method of development that was
sufficiently public to meet the public use test.^"^ While seeking to convey a purely

private benefit is never a valid goal,^^ the existence of a plan that passed a

rational relationship test ensures that the city never seriously encountered the

problem of seeking to confer a private benefit.
^^

The final source ofCity legitimacy was that economic development is a valid
and traditional goal of state and local govemment.^^ That is, seeking to attract

or retain private companies is a legitimate government function.^^ All that New
London had chosen to do, with the hope of ensuring its financial survival and
continued provision of services to its residents, was to capitalize on possibly one
of its few assets—its waterfront.

The City has carefully formulated an economic development plan that it
believes will provide appreciable benefits to the community,

including—but by no means limited to—new jobs and increased tax
revenue. As with other exercises in urban planning and development,
the City is endeavoring to coordinate a variety of commercial,

residential, and recreational uses of land, with the hope that they will

form a whole greater than the sum of its parts.^^

Thus, facilitating private action by use of the eminent domain power to the

financial assistance under Connecticut's Small Town Economic Assistance Program. See id.'.

Conn. Gen. Stat. Ann. § 4-66g (West 2007 & Supp. 2008).
52. Kelo, 545 U.S. at 478, 484.

53. /J. at 473.

54. Id. at 483.

55. Id. at 471.

56. Id. at 490-91 (Kennedy, J., concurring) (suggesting there may be occasions where the

plan is a sham).

57. Id. at 484.

58. Id. ("Promoting economic development is a traditional and long-accepted function of

government. There is, moreover, no principled way ofdistinguishing economic development from

the other public purposes that we have recognized.").

59. Id. at 483 (footnote omitted).



108 INDIANA LAW REVIEW [Vol. 42:97

specific satisfaction of the private actors in return for the secondary and tertiary

benefits of economic activity within the town's borders is vaUd.^°

The greatestjustification for the Kelo majority opinion is the difficulty, if not
near impossibility, of defining "bright line" rules for whether a taking is valid.^^

The Court, in effect, threw up its hands at the futility of determining a principled
way to distinguish economic development from other recognized public
purposes.^^ The decision, however, is still deeply unsatisfying. Even if
promoting economic development is a traditional, accepted function of

govemment,^^ something still /^^/5 wrong with the exercise of eminent domain.
The source of the continued dissatisfaction with the Kelo majority opinion is the
lack of focus on the harm from the forced sale to property owners who are
commercial and residential occupants of a neighborhood.^^ Even though the loss
of the property's economic value is financially compensated, the compulsory

aspect of the sale to the government and the loss of the ability to decide whether

and when to sell are not compensated.^^

B. The Dissents—Anti-Subordination Obscured by Formalism in Search
ofa ''Bright Line" Rule

The Kelo dissenting opinions were most concerned with the plight of private
property owners in this new world of economic development and their inability
to protect themselves during the redevelopment process.^^ According to the

dissents, the Fifth Amendment's "public use" clause was intended as an anti-
private command that would serve the interests of fairness by allowing the Court
to police "bright lines" of valid and invalid takings. Dissenting Justices

O'Connor and Thomas relied on the "bright line" of requiring some form of

60. See id.

61. Id. ("For more than a century, our public use jurisprudence has wisely eschewed rigid

formulas and intrusive scrutiny in favor ofaffording legislatures broad latitude in determining what

public needs justify the use of the takings power.").

62. See id. at 484 ("There is ... no principled way of distinguishing economic development

from other public purposes.").

63. See id. ("Promoting economic development is a traditional and long-accepted function

of government.").

64. See id. at 475 ("Ten of the parcels are occupied by the owner or a family member; the

other five are held as investment properties.").

65

.

See Lee Anne Fennell, Taking EminentDomainApart, 2004 MiCH. St. L. Rev. 957, 962-

67 (2004) (discussing the uncompensated increment). But see Nicole Stelle Gamett, The Neglected

Political Economy of Eminent Domain, 105 MiCH. L. Rev. 101, 130-36 (2006) (case study

indicating that above-market compensation for takings occurs more often than is commonly

thought).

66. Kelo, 545 U.S. at 496 (O'Connor, J., dissenting) (The public use clause's purpose is to

protect "stable property ownership by providing safeguards against . . . unfair use of the

government' s eminent domain power—^particularly against those owners who, for whatever reasons,
may be unable to protect themselves in the political process against the majority's will").



2009] REBUILDING THE PUBLIC-PRIVATE CITY 109

actual physical public use or ownership.^^ Roads, hospitals, and military bases

are of clear, direct public benefit because they are owned by the government.
Stadiums, railroads, and utilities are open to the public so they too are of clear,

direct public benefit.^^ The dissents diverged, however, over whether there could

be any additional "exigency" that would also justify an exercise of eminent

domain.^^ Justice O'Connor's approved exigency was the goal of affirmative

harmpreventions^ Under this perspective, Berman and Midkijf^tvt transformed
from being based on deference to a public purpose into exercises of eminent

domain for the purpose of harm elimination.^^
Under either of the dissents' categorical formulations, economic

development takings are constitutionally impermissible.^^ This formulation is not

only impracticable, but also overly restrictive. First, the actual use/direct benefit

standard simply invites comparisons between the new proposed uses and the
approved list. In some places, this means that all exercises of eminent domain

will be approved; in others, it means too many will be restricted. The test is not
meaningfully more doctrinally beneficial. Second, by offering a finite list of

approved '^public" purposes justifying eminent domain, the dissenting and

majority opinions all resort to tradition. The majority rests on economic

development as a traditional local government project.^^ The significant

67. Id. at 497-98 (O'Connor, J,, dissenting) (including the following as examples of

appropriate takings: (1) public ownership; (2) actual use by the public [common carriers, railroad,

a public utility, or stadium]; (3) and property that serves a public purpose and meets certain

exigencies [and harm elimination]).

68. Id.

69. See infra notes 86-89 and accompanying text (Justice Thomas rejects the harm prevention

exigency).

70. /i:^/o, 545 U.S. at 500.

7 1

.

See id. (citing the harm prevented in Berman as "blight resulting from extreme poverty

and in Midkiff[siS the harm of] . . . oligopoly resulting from extreme wealth"); see also Kelo, 545

U.S. at 486 n. 16 ("Nor do our cases support Justice O'Connor's novel theory that the government

may only take property and transfer it to private parties when the initial taking eliminates some

'harmful property use.' There was nothing 'harmful' about the nonblighted department store at

issue in Berman.'') (citation omitted).

72. Most dramatically, in this formulation of clear and rigid lines between valid public and

invalid private uses, the O'Connor dissent argues for a two-pronged retreat from deference to all

exercises of the police power arguing that the police power is not coterminous with public use. Id.

at 501 . This "errant language" is now said to derive from mistaken dicta in Berman and Midkijfthat

was not necessary to the actual holdings in those cases. Id. This language is extraordinary since

the Berman opinion was a direct response to the department store owner's claim that his property

was not harmful slum housing—it was commercial property in good condition. Berman v. Parker,
348 U.S. 26, 31 (1954). Thus, in Berman, there needed to be a rationale offered as to why the

scope of the redevelopment power could expand to include the functioning store when the direct

problem was dilapidated alley housing in a small section of the quadrant.

73. See id. at 484 ("[E]conomic development is a traditional and long-accepted function of

government.").



1 10 INDIANA LAW REVIEW [Vol. 42:97

difference is that the dissent's proposed categorical standard of review is

troublingly similar to Agins v. City of Tiburon's'^ "substantially advances"

regulatory takings test. The dissent's categories represent judicially approved

notions of appropriate projects that the Court implicitly approves as substantially

related to legitimate public purposes. Because the Court repudiated the

"substantially advances" test in Lingle v. Chevron^^ the dissent would put

eminent domain doctrine in a dilemma. Under the dissent's formulation, an

uncompensated regulatory taking would be subjected to a more deferential

standard of review, while a compensated physical taking would be subjected to

a heightened, standard-less, standard of review.

On the other hand, the dissent better acknowledges the difficulty of the
public-private split. Justice O'Connor aptly points out that due to the merger of

public and private, it is pointless to divine illicit purely private purposes.''^ In

economic development takings, "private benefit and incidental public benefit are,

by definition, merged and mutually reinforcing."^^ O'Connor's dissent also

correctly rejects looking solely at the city's motive to divine the true benefits to

the city: "How much the government does or does not desire to benefit a favored
private party has no bearing on whether an economic development taking will or

will not generate secondary benefit for the public.
"^^

While Justice O'Connor correctly identifies one type of public/private

chimera, she misses another. The types of underlying redevelopment supporting

the exercise of eminent domain that would meet her approval include railroads,

roads, and stadiums as valid public uses.^^ Private companies built those

railroads for their own profit and wielded great power in the states where the
railroad tracks were run.^^ Justice O'Connor's stadium example illustrates the

illusory certainty of the public-private distinction, since most stadiums, even

though publicly financed, are built at the behest of private sports team-owners,

according to their specifications. Thus, the stadiums usually include expensive

luxury skyboxes, which are inaccessible to the public, to meet team owners'

private profit goals.^^ The counter-intuitive conclusion to be drawn from Justice

O'Connor's stadium example is that perhaps the public role in building these

74. 477 U.S. 225, 260 (1980), abrogated by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528

(2005).

75. 544 U.S. 528, 542 (2005).

76. Kelo, 545 U.S. at 502-03 (O'Connor, J., dissenting).

77. /^. at 502.

78. Id.

79. See id. at 497-9S.

80. See AlbertaM. Sbragia, DebtWish: EntrepreneurialCirms, U.S. Federausm and

Economic Development 48-50 (1996) (during the nineteenth century, cities and states competed

to attract railroads by issuing bonds, on which they eventually defaulted, because of their desperate

quest to avoid falling into oblivion by not having a railroad pass through their town).

8 1

.

See Peter Sepulveda, Comment, The Use ofthe EminentDomain Power in the Relocation

ofSports Stadiums to Urban Areas: Is the Public Purpose Requirement Satisfied?, 11 SetonHall

J. Sport L. 137, 151 (2001) (contesting the publicness of publicly financed stadium development).



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 1

1

exclusive stadiums should not be considered public, but rather a further example
of the impermissibly private.

Moreover, it is not possible to completely divorce the question of the validity

of an exercise of eminent domain from the City's motive. Motives for
redevelopment are particularly relevant since the touted benefits of economic
development are based on projections that are often indirect, long-term, and
incremental. Thus, motive is a way to evaluate whether the city's projections
should be trusted. On the other hand, the reality is that local government often
intends to benefit a favored private party, and that intention is actually part of the
projected economic benefit. However, Justice O'Connor's dissent indirectly
concedes that intention is, in fact, relevant because of the political process

failures inherent in city redevelopment.^^

Although mired in the formalism of creating core categorical definitions of
valid and invalid takings, the most apt observation in Justice O'Connor's dissent
is that citizens in a redevelopment area are unable to protect their interests in the

political process and indirectly acknowledge the problem of subordination. 'The
beneficiaries are likely to be those citizens with disproportionate influence and
power in the political process, including large corporations and development
firms. As for the victims, the government now has license to transfer property
from those with fewer resources to those with more."^^ While O'Connor's
dissent fails to elaborate, it comes within a hair's breadth of acknowledging the
class subordination inherent in redevelopment. In light of the Court's past

unwillingness to acknowledge class as a basis for Equal Protection, this
acknowledgment is actually significant.^"^ It is the opening for a conversation on
how the Constitution should respond to systematic local political process failures
and the resulting wealth-based inability to resort to democratic devices for voice,

82. Justice O'Connor correctly argues that federalism protects important state functions, but

federalism seems out of place here since it does not provide protection for citizens. The Tenth

Amendment is not a Constitutional provision "meant to curtail state action." Kelo, 545 U.S. at 504

(O'Connor, J. dissenting). While I agree, one cannot avoid the reality that Kelo's federalism

rationale (i.e., returning the issue to the states) has really galvanized extremely important local

political activism as well as spurred others to begin questioning the wisdom of economic

development activities. For an account ofthe typical local reaction to eminent domain, see Jennifer

Egan, A Developing Story, N.Y. TIMES, Feb. 24, 2007, at A15 ("[RJesignation and bitter apathy
afflicted many residents, who disliked the project but felt that it was unstoppable. What chance do
we have . . . when our mayor, governor and borough president are in lockstep with a private

developer?").

83. Kelo, 545 U.S. at 505 (O'Connor, J., dissenting).

84. See, e.g., San Antonio Indep. Sch.Dist. v. Rodriquez, 411 U.S. 1, 18-19 (1973) (rejecting

"wealth discrimination" in property-tax based school funding as a basis for suspect classification

and strict scrutiny). According to the Court, it was not feasible to do so without confronting "hard

threshold questions, including whether it makes a difference for purposes of consideration under

the Constitution that the class ofdisadvantaged 'poor' cannot be identified or defined in customary

equal protection terms, and whether the relative—rather than absolute—nature of the asserted
deprivation is of significant consequence." Id. at 19.



112 INDIANA LAW REVIEW [Vol. 42:97

redress, or protection. Unfortunately, the categorical public-use approach as a

protection for individual property rights provides inadequate conceptual space

to focus on the problem of local political process defects and does not explore

possibilities for addressing it.

Surprisingly,^^ Justice Thomas's dissent comes the closest to directly

engaging issues of subordination present in redevelopment. He declines to
approve harm elimination or "blight" takings.^^ Justice Thomas, like Justice

O'Connor, applies an actual use standard^^ and finds that economic development

never outweighs residents' property ownership rights.^^ However, in areas that

would be labeled as "blighted," he would only allow eminent domain to be used

if the supposed harmful land uses failed to meet a common law nuisance
standard.^^ This issue is important since the flurry of posi-Kelo, state anti-

eminent domain reform legislation has retained blight as an acceptable

justification, without regard to the subordination of eminent domain. Instead,

Justice Thomas's view accounts for both the wealth and race subordination

inherent in redevelopment.^^ He notes the systematic likelihood that "poor
communities" will bear the brunt ofeconomic development takings^ ^ beyond any

financially compensable level.^^ He argues for heightened judicial review based
on footnote four of Carolene Products^

The deferential standard this Court has adopted for the Public Use

Clause is therefore deeply perverse. It encourages "those citizens with

disproportionate influence and power in the political process, including

85

.

See Angela Onwuachi-Willig, Just Another Brother on the Set?: What Justice Clarence

Thomas Teaches Us About the Influence ofRacial Identity, 90 IowaL. Rev. 931 (2005) (arguing

that Justice Thomas's jurisprudence falls within a tradition of Black conservative thought, which

condemns Black criminal defendants rights in favor of Black victims' rights and seeks to protect

Black people from the stigma of affirmative action).

86. Kelo, 545 U.S. at 519-20 (Thomas, J., dissenting) (arguing that slums can be handled

under state nuisance law).

87. Id. at 512 (referring to "quintessentially public goods").

88. See id. at 512-14.

89. Id. at 520.

90. Id. at 521.

91. Id. ("Allowing the government to take property solely for public purposes is bad enough,

but extending the concept of public purpose to encompass any economically beneficial goal

guarantees that these losses will fall disproportionately on poor communities. Those communities

are not only systematically less likely to put their lands to the highest and best social use, but are

also the least politically powerful.").

92. Id. ("[N]o compensation is possible for the subjective value of these lands to the

individuals displaced and the indignity inflicted by uprooting them from their homes.").

93. Id. at 521-22 ("If ever there were justification for intrusive judicial review of

constitutional provisions that protect 'discrete and insular minorities,' surely that principle would

apply with great force to the powerless groups and individuals the Public Use Clause protects."

(quoting United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938))).



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 1

3

large corporations and development firms" to victimize the weak 94

Influenced by the inherent class discrimination in redevelopment, Justice
Thomas's dissent argues that the power of government should be restricted to
prevent its powers from being used by the rich to the disadvantage of the poor.
Thus, Thomas's dissenting opinion, while advancing an impracticable test,
correctly formulates the challenges of local economic development. As currently
practiced, local economic development raises fundamental questions about the
discretion of states and cities to use land to effectuate policy choices at the

expense of the poor.

C. Stepping Back to Survey the Glittering Landscape ofRedevelopment

The type of contemplated development in Kelo is not simply limited to New
London. Similar projects, both large and small, are occurring in cities and

suburbs around the world. Development of upscale tourist, residential, and
commercial amenities and twenty-first century core growth industries, such as

high-tech service industries, health care, and institutions of higher education are

part of a prevailing approach to seeking economic vitality—the ''attraction of the
affluent." While these projects can be found in residential districts with serious
abandonment problems that are still owner and tenant occupied,^^ much
redevelopment does not necessarily involve occupied property; it can also be

vacant brown or grayfield redevelopment.^^ Dilapidated downtown districts in

94. Id. at 522 (citation omitted).

95. The Biotech Approach. For example, on the east side of Baltimore, a thirty-acre

residential neighborhood is being transformed with the help of the city's eminent domain powers

into a biotechnology park in a depressed section of the city, adjacent to Johns Hopkins. See Brief

for Mayor & City Council of Baltimore as Amici Curiae Supporting Respondents at *25, Kelo v.
City ofNew London, 545 U.S. 469 (2005) (No. 04-108), 2005 WL 166940. The plan is for the two
million square-foot center to be used for research and business activities that will complement

existing work at Johns Hopkins. Id. Estimates are that the development will create 6000 new jobs.

"Of the approximately 1,700 total properties that the City expects to acquire in East Baltimore,

approximately 1,150, or about two-thirds, are abandoned, while approximately 550 are

currently—or recently-occupied private homes or businesses." Id.
96. The New Private City Approach. In Atlanta, Atlantic Station, for example, consists of

offices, condominiums, loft-style apartments, town homes, single-family residences, a variety of

shopping ranging from IKEA to an upscale Dillards Department Store, multiplex cinema, cafes,
restaurants, and bars.

The . . . development will ultimately include 6 million square feet of ultramodern Class

A office space; 5000 residential units (from luxury condo lofts to more affordable
townhouses and apartments); 2 million square feet of retail and entertainment space,

including restaurants and movie theaters; 1000 hotel rooms, and 1 1 acres of public

parks.

Lisa Chamberlain, Square Feet: Building a City Within the City ofAtlanta, N.Y. TIMES, May 24,
2006, at C8. Its size encouraged the Postal Service to award the neighborhood its own ZIP code:

30363. See Jamie Gumbrecht, Cracking the Zip Code ofAtlanta Cool, ATLANTA J. CONST., Apr.



1 14 INDIANA LAW REVIEW [Vol. 42:97

need of rehab can be involved,^^ as well as districts suffering from vacancy but

serving as a vital source of livelihood for small entrepreneurs.^^ Most of the
redevelopments are mixed use.^^ It is nearly impossible across the broad array

25, 2008, available at www.ajc.com/living/ content/living/stories/2008/04/25/zipcodes_0427.html.

One 242-unit, four-story apartment building. Icon Apartments, will have a 20 percent affordable

living component. Debra Wood, Momentum Builds at Atlantic Station, Southeast Constr.

(2005), available at http://www.southeast.construction.com/features/archive/0506_Feature3.asp.

97. The New Private Downtown Approach. Attempting large-scale redevelopment on

property privately owned by multiple parties is fraught with difficulty. For example, the city of

Baltimore has been trying to get an ambitious redevelopment of its core downtown commercial

district which has been in decline and long-abandoned by major retailers. The project seeks to

acquire and transfer to private developers 100 properties owned by a variety of entities. See West

Side Story: What's at Stake in the Rush to Redevelop Baltimore 's Original Downtown, Balt. City

Paper, June 7, 2002, available at http://www.citypaper.com/news/story.asp?id=3592. The plan

has unfolded slowly. Some early projects like the renovation of the Hippodrome Theater and the

Center Point apartment and office complex are completed. Lorraine Mirabella, West-Side Project

Meets Resistance; City Preservationists Say Old Retail District Should Be Saved, Balt. Sun, Dec.

12, 2008, at 16A. For the most part, however, the project has stalled for a number of reasons.

There was initial opposition for failing to include historic preservation in the redevelopment plan.

Charles Belfoure, In Baltimore's West Side, Preservation Story Unfolds, N.Y. TIMES, Feb. 18,

2001, at All; Tom Chalkey, West Side Glory, Balt. City Paper, Feb. 2, 2000, available at

http://www.citypaper.com/news/story.asp?id=2498. There has been opposition from property

owners and small business owners who claim they were not included in any part of the planning.

The project has been the subject of three lawsuits over failure to make information available to

bidders to be the developer, minority contractors alleging failure to comply with public contracting

requirements, and a dispute by another failed bidder alleging mistaken inclusion of a key property

in the redevelopment plan. See Eric Siegel & Jill Rosen, Lawsuit Targets West-side Projects;
Angelos, Developer Want City to Scrap Superblock Deal, Balt. Sun, Feb. 27, 2007, at 1 A.

98. According to one account, "The unlovely storefronts of the old west side are crammed

with thriving businesses, most of them owned by Asian immigrants and African-American

entrepreneurs who are, to paraphrase Bill Clinton's line, working hard and playing by the rules."

Chalkey, supra note 97.

99. Examples include the Atlantic Station project in Atlanta, Georgia, the 1 38-acre mixed-use

brownfield redevelopment on the site of Atlantic Steel, a former metals-recycling business. See,

e.g., James Murdock, Next Stop: Atlantic Station, COMMERCIAL PROPERTY NEWS, Aug. 1, 2003,

available at http://www.allbusiness.com/operations/facilities-commercial-real-estate/4422322-

l.html. Waterfront redevelopment is extremely popular as well. In the Washington, D.C.,

metropolitan area, not one but two redevelopments are currently underway, unrelated but relatively

close to each other. For example, the traditionally Black section of Southeast is slated to be

transformed along its waterfront, along the Anacostia River in Washington, D.C., as part of the

Anacostia Waterfront Initiative. See Anacostia Waterfront Initiative, http://www.planning.dc.gov/

planning/cup/view,a, 1285,q,57 1 105,planningNav_GID, 1708,planningNav,l3234 1 l.asp (last visited

Mar. 12, 2009). This project consists of a 2800-acre development along the Potomac River

comprised of ten different sub-projects, including a new baseball stadium for the Washington

Nationals, a 20-mile Riverwalk Trail System, Kenilworth/Parkside (described as "a Mixed-Income,



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 1

5

of settings to characterize these developments as good or bad, positive or

negative. Instead, they simply are. The significance is that regardless ofwhether
or not direct displacement occurs, exclusion is inherent in these projects.

Large redevelopment projects will likely involve the exercise of eminent

domain, but they also may not. If eminent domain is not exercised, this
development would be characterized as ^^QVcAn^ypurelyprivate in terms of site
acquisition and construction-financing, yet the City always plays a role in

facilitating or making that redevelopment possible. ^^^ As argued elsewhere, ^^^

eminent domain is only a subset of the governmental powers that are used to
further development. The government's role in facilitating private development
is ubiquitous and multiple. What is noteworthy is that when the government uses
the eminent domain power, the government's motive is often to intervene and

further land exchange value, rather than the use value placed on land by existing

property owners and other residents. ^^^ This further begs an alternate explanation

of the rights and interests at stake beyond property rights conceptualizations.

Mixed Use Gateway to the Ward 7 Waterfront"), with 2000 residential units and 500,000 square

feet of commercial and retail space. Office of the Deputy Mayor for Planning and Economic

Development, Anacostia Waterfront, http://dcbiz.dc.gov/dmped/cwp/view,a,1365,q,605699,

dmpedNav,33026.asp (last visited Feb. 28, 2009). The issue is not necessarily displacement, but

who will get to partake in the new residential and commercial amenities. If the redevelopment is

successful, it will make this area desirable and likely to gentrify. A few miles to the south, in Oxon
Hill, Maryland, a massive waterfront development. National Harbor, is nearing completion.

National Harbor, http://www.nationalharbor.com/consumer/consumer.htm (last visited Jan. 12,

2009). Loosely reminiscent of Baltimore's Inner Harbor, National Harbor is a 300-acre planned

upscale tourist, entertainment destination centering around a colossal convention center with an

eighteen-story glass atrium featuring a dramatic view of the Potomac River. Id. The Center is

surrounded by upscale hotels, condominiums, shopping and restaurant venues along with ample

parking. See id.

Redevelopment is also part of stadium development. For example, eminent domain was used

to condemn both vacant and occupied property for a new stadium for Washington, D.C.'s, new

baseball team, the Washington Nationals. Dana Hedgpeth, Contesting a Stadium 's Power, WASH.

Post, Feb. 20, 2006, at D03 (detailing the $600 million in city financing for the new baseball

stadium and land speculation in anticipation of the exercise eminent domain).

100. See, e.g., Lynne B. Sagalyn, Public/Private Development: Lessons from History,

Research, and Practice, 73 J. AM. PLAN. AsSN. 7, 10 (2007) (discussing the public-private nature

ofredevelopment); Marc B. Mihaly, Public-Private Redevelopment Partnerships and the Supreme

Court: Kelo v. City of New London, Vt. J. Envtl. L. 41 (2005).
101. See Audrey G. McFarlane, The New Inner City: Class Transformation, Concentrated

Affluence and the Obligations of the Police Power, 8 U. Pa. J. CONST. L. 1 (2006) [hereinafter

McFarlane, The New Inner City].

102. Rachel Weber, Extracting Value from the City: Neoliberalism and Urban

Redevelopment, in SPACES OF Neolberalism: URBAN RESTRUCTURING IN North America and

Western Europe 172, 174, 182 (Neil Brenner & Nik Theodore eds., 2002) (describing how
developers, assisted by the State, pursue creative destruction in order to extract the economic value

from fixed assets like real estate).



116 INDIANA LAW REVIEW [Vol. 42:97

One of the most controversial large redevelopment projects currently
underway is the Atlantic Yards Arena and Redevelopment Project in the Prospect

Heights neighborhood of Brooklyn, New York.^^^ This is a twenty-two-acre
redevelopment of underutilized and underdeveloped rail yards and other

properties in the midst of a thriving Brooklyn neighborhood. ^^"^ The planned

mixed-use development will include sixteen towers with more than 6000 units

of rental housing, with fifty percent set aside for low and middle income

renters, ^^^ four office buildings, a glass-walled sports arena (for the New Jersey
Nets) to be designed by renowned architect Frank Gehry, a hotel, and six to

seven acres of open space. ^^^ The City will use eminent domain to clear parts of

the neighborhood.
^^^

One view of redevelopment is that both privately and publicly sponsored
redevelopment is crucial to allow cities to adapt to changing economic and

demographic conditions and to revamp and update outdated land uses and

buildings to meet a changing society's needs. ^^^ The other view—more difficult
to articulate because the new developments are often dramatically beautiful—is

103. Charles V. Bagli, City Planners Recommend 8% Reduction in Atlantic Yards, N.Y.
Times, Sept. 26, 2006, at B3.

104. See Nicholas Confessore, Another Step for Downtown Brooklyn Project, N.Y. TIMES,

Dec. 16, 2005, at BIO (describing some of the properties such as repair shops, a food supply store,

and abandoned residential apartment buildings as dilapidated); Nicholas Confessore, Cities Grow

up, and Some See Sprawl, N.Y. TIMES, Aug. 6, 2006, at 43 (the site is located "where a mix of

vacant lots, low-rise apartments, abandoned buildings, and condominiums now sit"); Peter Slatin,

Yard Fight, Slatin REPORT, July 8, 2005, available at http://www.nolandgrab.org/archives/

2005/07/yard_fight.html (discussing a rival proposal by the Extell Group for a more modest purely

residential development that would have built on existing yards footprint and avoided use of

eminent domain); see also Goldstein v. Pataki, 516 F.3d 50, 52 (2d Cir. 2008) ("[R]edevelopment

of an area in downtown Brooklyn affected with substantial blight.").

1 05

.

This arrangement is pursuant to a "community benefits agreement" between the developer

and a variety of community organizations. See Nicholas Confessore, Perspectives on the Atlantic

Yards Development through the Prism ofRace, N.Y. TIMES, Nov. 12, 2006, at 35.

106. See Jennifer Egan, A Developing Story, N.Y. TIMES, Feb. 24, 2007, at A15 (lamenting:

"What was mostly lost in this caustic debate was the biggest question of all: what do we

Brooklynites—a diverse and even divided collective—want our borough to be? Do we want it
transformed from a sunny, low-lying place into knots of vertical superblocks? Are we content to

let our borough's future be imposed on us by developers and politicians?").

1 07

.

A recent challenge to the exercise of eminent domain was rejected at the trial court level

.

Goldstein v. Pataki, 488 F. Supp. 2d 254, 278 (E.D.N.Y. 2007) ("Plaintiffs have not sufficiently

alleged that the takings at issue violate the public use requirement."), aff'd, 516 F.3d 50 (2d Cir.),

cert, denied, 128 S. Ct. 2964 (2008); Jotham Sederstrom, Yards Sued on Plan to Grab Land, N.Y.

Daily News, Feb. 8, 2007, at 1 ("While opponents fear the project will create a traffic nightmare

and ruin the neighborhood's character, supporters say it will create jobs and affordable housing.").

1 08. According to Rachel Weber, this redevelopment is about prioritizing the exchange value

placed on inner-city communities rationalized by neo-liberal ideology. Weber, supra note 102, at

175-76.



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 17

that not enough attention is paid to how these changes impact the urban social
fabric by creating consistent winners and losers. The consumption needs and
tastes of the affluent are prioritized in this form of development. The rejection
of older, less-upscale, land uses becomes personal, class-based, and seemingly
subjective.

^^^

This unfairness is starkly apparent, purposefully fostered by the market, and
insufficiently addressed by the cities. Local economic development, as currently
practiced, raises fundamental questions about the discretion of States and Cities

to use land to effectuate social and economic policy choices. The history of
redevelopment is notorious because society's needs are contested and subjective,

often colored by narrow perspectives, racism' '^ and classism.
' '

' These questions
cannot be separated from the eminent domain equation. While the majority
opinion is persuasive in stating that "bright line" limits cannot, and should not,

be read into the public use clause to limit government overreaching in the name
of economic development, does that mean there can be no limits? While the
public good is the stated goal, the broad range of choices for defining the public
good and meeting that goal means that much can happen that can have negative
consequences for ordinary city residents.

Eminent domain doctrine can grapple more meaningfully with the underlying
issues presented through some exercises of eminent domain by assessing the
subordination inherent in redevelopment. The public or private label assigned
to the eminent domain decisionmaker or ultimate owner does not truly affect or
change the subordination. Because the current debate on redevelopment is

109. San Antonio Indep. Sch. Dist. v. Rodriguez, 41 1 U.S. 1, 25 (1973) (refusing to apply

strict scrutiny to economic or wealth discrimination challenge to property-tax based school funding

disparities). The poor "have none of the traditional indicia of suspectness: the class is not saddled

with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated

to such a position of political powerlessness as to command extraordinary protection from the

majoritarian political process." Id. at 28. See James v. Valtierra, 402 U.S. 137, 140-41 (1971)

(declining to extend the protection ofthe Equal Protection Clause against a referendum requirement

for "low rent" housing developments.); Carl Bialik, The Numbers Guy: Flaws in Measuring the

World's Poor May Hinder Solutions, WALL ST. J., June 1 , 2007, at B 1 (noting criticism of World
Bank global poverty numbers being compiled by cumulating national poverty statistics

—
"[s]ome

economists argue that poverty should be defined as the inability to live at a level each person's

society deems normal. Lacking a phone in Burundi might not be associated with poverty, but it is

in the [United States]").

110. David Crump, Evidence, Race, Intent and Evil: The Paradox ofPurposelessness in the

Constitutional Racial Discrimination Cases, 27 HOFSTRA L. Rev. 285, 315 (1998) ("[In polls]

whites tend to use the word 'racism' to refer to explicit and conscious belief in racial superiority.

African-Americans mean something different by racism: a set of practices and institutions that

result in the oppression of black people.").

111. See Bradley R. Schiller, Class Discrimination vs. Racial Discrimination, 53 Rev. OF

EcON. & Stat. 263, 268 (1971) (suggesting that class discrimination is as harmful and invidious
as racial discrimination and concluding that poverty harmed Black AFDC recipients more than
race).



1 18 INDIANA LAW REVIEW [Vol. 42:97

conducted only through the jurisprudence of eminent domain, that discussion is

too narrow. It only recognizes the individual property holder and is confined to

the public-private distinction, thereby missing the heart of the issues presented

by redevelopment. Crucial to a broadened, more realistic consideration of

redevelopment is to account for the subordination inherent in this practice.

D. The Three Faces ofSubordination in Redevelopment

L What Is Anti-Subordination ?^ ^^—Anti-subordination originates from the
Fourteenth Amendment^ ^^ Equal Protection guarantee. While Equal Protection

112. Research reveals anti-subordination arguments advanced in hate speech (First

Amendment), employment law (statutory), and education/desegregation/affirmative action law

(Fourteenth Amendment). See CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES

ON Life and Law 174 (1987); Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal

Protection, 61 N.Y.U. L. Rev. 1003, 1004 (1986) (arguing that anti-subordination should inform

courts' analysis of equal protection doctrine.); Katherine M. Franke, What's Wrong with Sexual

Harassment?, 49 STAN. L. Rev. 691, 705 n.53 (1997) (noting Catharine MacKinnon's evolution

from the term, "inequality approach" to "antisubordination"); see also Laurence H. Tribe,

AmericanConstitutionalLaw§ 16-21, at 1514, § 16-22, at 1521 (2ded. 1988) (stating that the

antidiscrimination principle focuses on acts ofprejudice, whereas antisubjugation focuses on legally

reinforced systems that treat some people as second-class citizens); Paul Brest, Forward: In

Defense of the Anti-Discrimination Principle, 90 Harv. L. Rev. 1, 6 (1976) (defining the

antidiscrimination principle as one disfavoring classifications, decisions, and policies based on race

and noting that other principles may be needed to address questions ofeconomic justice); Kimberle

Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in

Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1341 (1988) (arguing that society refuses to

recognize the role of racial subordination) [hereinafter Crenshaw, Race, Reform, and

Retrenchment]; Twila L. Perry, The Transracial Adoption Controversy: An Analysis ofDiscourse

and Subordination, 21 N.Y.U. REV. L. & Soc. CHANGE 33, 79-80 (1994); Dorothy E. Roberts,
Punishing Drug Addicts Who Have Babies: Women ofColor, Equality, and the Right ofPrivacy,

104 Harv. L. Rev. 1419, 1450-56 (1991) (applying anfisubordinafion principles to the actions of

some state governments in criminally prosecufing pregnant drug addicts); accord Karen B. Brown

& Mary Louise Fellows, Introduction, in TAXING AMERICA 1, 2 (Karen B. Brown & Mary Louise
Fellows eds., 1996) ("What is missing from both the political and the academic debate about taxes

is a serious consideration of how the tax system exacerbates marketplace discrimination against

traditionally subordinated groups."); Karen B. Brown & Mary Louise Fellows, Preface, in TAXING
America, at vii, vii (Karen B. Brown & Mary Louise Fellows eds., 1996) (and advocating the
development of "an analytical framework [that] would both uncover biases in the tax law and reveal

anti-subordination strategies to keep the tax law from maintaining and perpetuating marketplace

discrimination."); Samuel R. Bagenstos, Subordination, Stigma, and "Disability, " 86 Va. L. Rev.

397, 452 (2000) ("By reading the ADA as extending its protections only to members of a particular
socially subordinated group, I draw on the work of scholars who have articulated an

antisubordination theory as both a description and defense of civil rights law.").

113. "[N]or shall any State deprive any person oflife, liberty, or property, without due process

oflaw; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST.



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 19

is typically thought of as being purely about equal treatment between properly

defined, similarly situated categories of people, a rich literature argues

convincingly that anti-subordination is the true substantive^
^"^

protection of the

Equal Protection Clause. The normative goal is neither mechanically equal
treatment nor merely avoidance of explicit racial classifications, but rather a

guarantee that no citizens will be relegated to second-class status by virtue of

societal structures, disadvantage, and oppressive treatment over time.^*^ At the

core of anti-subordination logic is the recognition that numerical minorities are

often literally incapable of protecting their interests in a majoritarian political

process.^ ^^ However, the goal of anti-subordination is to recognize that

subordination can be present, even in the absence of explicit racial

classifications. An accumulation of social practices can act to create a caste-like,
second-class-citizen status which then reinforces disadvantage. ^ ^ "^ This was at the

amend. XIV, § 1.

114. See, e.g., John O. Calmore, Critical Race Theory, Archie Shepp, and Fire Music:

Securing an Authentic Intellectual Life in a Multicultural World, 65 S. Cal. L. Rev. 2129, 2189

(1992) ("The point is that almost all the critical race theory literature seems to embrace the ideology

of anti-subordination in some form." (citing Crenshaw, Race, Reform, and Retrenchment, supra

note 1 12, at 1341; Mari J, Matsuda, Voices ofAmerica: Accent, Antidiscrimination Law, and a

Jurisprudence for the Last Reconstruction, 100 YALE L.J. 1329, 1398-99 (1991)); Charles R.

Lawrence III, ForwardAce, Multiculturalism, and the Jurisprudence ofTransformation, 47 Stan.

L. Rev. 819, 822-28 (1995) (arguing that liberal individualist theory fails the cause of anti-racism

and transformative humanization because it offers a nonsubstantive approach to racism that focuses

exclusively on individual harms and procedural fairness rather than the disestablishment of

ideologies, systems, and conditions of racial subordination); Charles R. Lawrence III, Two Views

ofthe River: A Critique ofthe Liberal Defense ofAffirmative Action, 101 Colum.L.Rev. 928, 942

n.51 (2001) [hereinafter Lawrence, Two Views].

115. Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in

Constitutional Struggles over Brown, 1 17 Harv. L. Rev. 1470, 1477 (2004) ("Antisubordination

values are not foreign to the modem equal protection tradition, but a founding part of it, deeply

tempered by other values, including the need to have a Constitution that speaks to all."); see Ian F.

Haney Lopez, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59

Stan. L. Rev. 985, 987 n.2 (2007) ("Many critics of the anticlassification approach argue instead

that, properly understood, the Equal Protection Clause targets only those racial practices that

contribute to racial hierarchy. The proponents of this antisubordination approach prominently

include the following: J.M. Balkin . . . Owen M. Fiss . . . William E. Forbath . . . Reva Siegel .

.

. .") (citations omitted).

116. See, e.g.. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). The

infamous footnote serves as the basis ofheightenedjudicial scrutiny of racial classifications. I have

always thought it jurisprudentially odd that the source of protection for a subset of American

citizens is in a footnote.

117. Sylvia R. Lazos Vargas, Democracy and Inclusion: Reconceptualizing the Role of the

Judge in a Pluralist Polity, 58 Md. L. Rev. 150, 162 (1999) (noting that separate but equal laws

lead to "'antisubordination,' 'antisubjugation,' 'anti-caste' or 'substantive equality.'").



1 20 INDIANA LAW REVIEW [Vol. 42:97

heart of the desegregation mandate of Brown v. Board of Education,^ ^^ for
example. Segregation involved separate but equal treatment.

'^^ By invalidating
separate but equal, the Supreme Court explicitly recognized that equal treatment

had a disparate negative effect on Blacks. ^^^ The concept of anti-subordination
was that separate but equal created a disadvantaged, stigmatized status for

members of particular racial groups and the Fourteenth Amendment needed to
be interpreted in a way that addressed these forms of discrimination.

^^^
Critical

race theory was built on these insights into the limits of the anti-discrimination

principle to consistently call for addressing elements of structural

disadvantage—namely, subordination. These elements stem not from individual
acts of discrimination, but rather from a series of seemingly non-discriminatory

acts that keep particular groups of people disadvantaged.
^^^

Critical race theory teaches that subordination must be addressed when any
of the following are present: 1) politically disabling power disparities; ^^^ 2)
caste-like status; 3) failure to reflect the perspective of the subordinated;

^^"^ or 4)

118. Siegel, supra note 1 15, at 1547 ("[I]t is a history of debates over Brown that shows how

racial conflict haunts the silences, ambiguities, and conflicts ofmodem equal protection doctrine.").

1 19. See Jack M. Balkin & Sanford Levinson, Thirteen Ways ofLooking at Dred Scott, 82
Chi.-Kent L. Rev. 49, 84 (2007) ("The Missouri Compromise barred slaveowners from bringing

their slaves with them north of 36°30' latitude, imposing what we today would call a 'disparate

impact' on Southerners. Thus, Dred Scott not only makes an egalitarian argument for slaveholders

rights, it also makes what we would today call an 'antisubordination' argument."); Perry, supra note

112, at 79-80 (arguing that the discourse or manner of speaking about transracial adoption is

subordinating). The goal of anti-subordination is not simply a society in which everyone is treated

"equally" but rather a society in which each member is guaranteed equal respect as a human being.

120. See Brown v. Bd. of Educ. (Brown /), 347 U.S. 483, 495 n. 11 (1954).

121. See Kathryn Abrams, "Groups" and the Advent of Critical Race Scholarship, at 10,

available at http://www.bepress.com/ils/iss2/artl0 (last visited Feb. 21, 2009) (arguing that

"Groups and the Equal Protection Clause" partially contributed to the emergence of critical race

theory). But see David A. Strauss, "Group Rights " and the Problem ofStatistical Discrimination,

at 6, available at http://www.bepress.com/ils/iss2/artl7 (last visited Jan. 2, 2009) (arguing that the

anti-subordination principle is not really something new or exotic).

1 22. Owen M. Piss, Groups and the Equal Protection Clause, 5 PHILOSOPHY & PUB. AFFAIRS
107, 108 (1976) (proposing to shift Equal Protection doctrine's emphasis on racial classifications

towards the actual social practices that disadvantage racial groups); see also Owen Piss, Abstract,

Another Equality, available at http://www.bepress.com/ils/iss2/art.20/ (last visited Jan. 2, 2009).

123. See Richard Thompson Ford, Geography andSovereignty: Jurisdictional Formation and

Racial Segregation, 49 Stan. L. Rev. 1365, 1367 (1997) (arguing that "[rjecent Court decisions

involving electoral district apportionment and a long-running, if disconnected, set of deliberations

regarding local government directly implicate issues of group pluralism and subordination as they

affect democratic institutions"); Perry, supra note 1 12, at 79 n.204 (citing and characterizing the

arguments in Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61

N.Y.U.L.Rev. 1003, 1005-14(1986)).

124. Lawrence, Two Views, supra note 114, at 950-51 ("Critics of liberal theory, including

critical race theorists, have offered another way to think about promoting equality and human



2009] REBUILDING THE PUBLIC-PRIVATE CITY 121

systemic, reinforcing disadvantage. Additionally, anti-subordination is

unapologetically and openly political. It does not pretend that politics and

constitutional interpretation do not intermix. ^^^ However, anti-subordination

theory has yet to meaningfully confront the real questions of social conflict that

underlie its goal of social re-ordering,*^^ and the constraints on courts and

legislatures to detach themselves from the influence or control of that social

conflict. '^^ Reva Siegel has insightfully observed,

[I]t is evident why the Court and many ofthose defending its work began
to shy from openly justifying equal protection decisions in language

concerned with group inequality or associated concepts of subordination

and status. Reasoning about practices that unjustly disadvantage groups,

or enforce their inferior or second-class status, involves positive and

normative claims of a politically provocative sort. As a descriptive
matter, concepts of subordination focus attention on agonistic group

relations that structure the polity. As a normative matter, concepts of
subordination draw into question the legitimacy of customary practices

and understandings that regulate, and rationalize, the social position of
1 TO

groups.

Siegel' s critique is not made purely from the perspective that one person's gain
is another's loss. Instead, it arises from the recognition that material resources

are at stake and recognizing harm in a society has profound implications.*^^

dignity, one that reflects the perspective of the subordinated.").

1 25

.

See Samuel R. Bagenstos, The Structural Turn and the Limits ofAntidiscrimination Law,

94 Cal. L. Rev. 1,4 (2006) ("[S]ocial and not legal change is what will be necessary to eliminate

structural workplace inequalities."); Calmore, supra note 1 14, at 2137-38 (arguing that critical race

theory and jazz have similar origins in that both involve notions of oppositional cultural and

political practices and potentially effective use offundamental criticism of society); Mark Tushnet,

Popular Constitutionalism as Political Law, 81 Chi.-Kent L. Rev. 991, 991 (2006) (defining

popular constitutionalism as "the deployment ofconstitutional arguments by the people themselves,

independent of, and sometimes in acknowledged conflict with, constitutional interpretations offered

and enforced by the courts").

1 26. But see Rhonda V. Magee Andrews, The Third Reconstruction: An Alternative to Race

Consciousness and Colorblindness in Post-Slavery America, 54 ALA. L. REV. 483, 530 n.l99

(2003) ("[T]he antisubordinationjurisprudence has remained associated with a concept ofrace that

inevitably would perpetuate the notion in ways that reflect nineteenth century thinking .... Thus,

the antisubordination principle has not yet led to an adequate critique of the notion of race itself,

or to a reconsideration of the comparison-based approach implicit in equal protection analysis.").

1 27

.

See Robin West, Progressive and Conservative Constitutionalism, 88 MiCH. L. Rev. 64 1

,

715 (1990); Robin West, Abstract, Groups, Equal Protection and Law, available at

http://www.bepress.com/ils/iss2/art8 (last visited Jan. 5, 2009) (arguing that the Equal Protection

Clause provides political ideals to guide legislation, rather than legal restraints on legislation).

128. Siegel, supra note 1 15, at 1544-45 (emphasis added).

129. Id.



1 22 INDIANA LAW REVIEW [Vol. 42:97

Sieger s theory seeks a re-allocation of rights and privileges. '^^ Her critique also
considers the profound aspects of identity that arise from privilege and a sense
of vulnerability and threat of danger that accompanies privileged identities.

^^^

The task, then, is to devise a way to make the process fair.
Even more complicating are the unresolved tensions between race and class.

At present, eminent domain doctrine leaves racial minorities and others living in
redevelopment areas to the urban political process. ^^^ The reality is that minority
elected officials are often in charge of carrying out redevelopment. The
economic forces and logic driving that decisionmaking and its subordinating

effect are largely unchanged by the decisionmaker's racial identity. A purely
racial lens is insufficient to understand the nature of the subordination. Instead,

race, class, and the political process—in particular, the informality of the
political process in redevelopment—must be used to flesh out an understanding
of the subordination. Anti-subordination theory is complex, multi-dimensional,

and capable of adapting,
^^^

and when applied to eminent domain, provides an
opportunity to consider what redevelopment is and should be about.

2. Subordination in the Types ofRedevelopment Projects.—Redevelopment
seems like a straightforward process of acquiring and clearing a site and

130. Id.

131. For example, Reva Siegel makes a helpfully inductive observation about the impact of

social conflict on the retreat of the Supreme Court from the anti-subordination principle. She

argues that "[i]n deciding Brown, the Court had adopted an interpretation of the Equal Protection

Clause that would alienate groups with the social standing and skills to challenge the authority of

the Court itself." See id. at 1544. She continues,

As the Court read the Constitution to draw into question the position and values of

whites who sought to maintain segregation, they in turn charged the Court with

illegitimacy and group partiality. Under assault, the Court needed more than a

principled justification for its interpretive practice. It needed an account of the

Constitution that could command the allegiance—if not the assent, then the engaged
dissent—of those the Court's decisions had estranged.

Id.

132. Darren Lenard Hutchinson, "Unexplainable on Grounds Other than Race": The

Inversion ofPrivilege and Subordination in Equal Protection Jurisprudence, 2003 U. ILL. L. REV.

615, 682 ("Of the possible equal protection theories, the antisubordination or anticaste theories do

more to dismantle the historical legacy of racial and other forms of domination. Many scholars

have advocated antisubordination theories. A concern that the law promote substantive equality
by considering 'the concrete effects of government policy on the substantive condition of the

disadvantaged' unifies their analyses." (quoting Roberts, supra note 112, at 1454)). Hutchinson

also argues that the approach leaves minorities to the political process. Id.

133. Darren Lenard Hutchinson, Identity Crisis: "Intersectionality, " "Multidimensionality,

"

and the Development of an Adequate Theory of Subordination, 6 MiCH. J. RACE & L. 285, 288
(2001) (drawing from race-sexuality theory and calling for a multi-dimensional antisubordination

theory noting "structural problems in antisubordination theory . . . [that positions] progressive

movements as oppositional and conflicting forces, rather than as potential alliances and coalitions,

and the failure to recognize the multidimensional and complex nature of subordination").



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 23

constructing a set ofbuildings to create a new use for the property. Nevertheless,
this process also involves practices related to group formation and social

exclusion, as well as oppression and domination. Redevelopment involves social

decisions about land use that significantly alter property ownership patterns,

neighborhoods, and community networks. ^^"^ Because redevelopment occurs in

furtherance of an upper-middle-class attraction strategy, the policy, in effect,

prioritizes the land use needs of one social class over the other.
'^^

The similarity ofthese glittering new projects to each other is striking. ^^^ Not
only is mixed-use (commercial and residential) development the wave of the
present, but upscale residential and commercial developments are the standard

of the day. One advantage ofmixed-use development is it provides nearly all that
young urban dwellers want—proximity to services and entertainment,
excitement, walkability, upscale convenience, and controlled environment. The
main disadvantage of mixed-use development is that it is usually market-driven.

The residential tenant mix is expected to predict, match, and enable the
commercial tenant mix. Although non-upscale development can be profitable,

it is omitted from most redevelopment schema because it does not ''fit the

profile."^^'

There are underlying structural reasons for the similarities of these

developments. Developers replicate the same schemas because they are forced

to tell a cognizable story that financial markets easily understand.
^^^

Prevailing

financing mechanisms require this exclusion to replicate the limited recognized

types of real estate investment products. Failure to replicate makes financing
more expensive or even unavailable.'^^ Financing demands predictable,
standardized forms of development. According to Christopher Leinberger,

nineteen standard real estate products are used by real estate developers to

produce developments that banks and other investors can readily recognize and

1 34. See Mihaly, supra note 5, at 4 (stating that "redevelopment [is] one of the most powerful

roles assigned to government").

1 35. For a more complete discussion of this point, see McFarlane, The New Inner City, supra

note 101, at 3; see also Herman L. Boschken, Global Cities, Systemic Power, and Upper-Middle-

Class Influence, 38 Urb. Aff. Rev. 808, 808 (2003) (an "important consideration in urban

globalization is the disproportionately high presence of UMC whose membership includes
institutional professionals at the forefront of postmodern awareness and international experience.

Symbolized by a lifestyle genre, the upper middle class is more than a marker of the global city. It

exerts a subliminal influence that prescribes the cityscape policy that outcomes planners emphasize

to ensure principal membership for the city in global exchange").

136. See supra Fart I.e.

1 37. See MARY Patillo McCoy, Black Picket Fences 1 90 ( 1 999).
138. Michael Suk-Young Chwe, Rational Ritual: Culture, Coordination, and

Common Knowledge 25-49 (2001) (discussing ritual, conmion knowledge and the need to
stigmatize).

1 39. See Christopher B. Leinberger, Back to the Future: The Needfor Patient Equity in Real

Estate Development Finance, BROOKINGS INSTITUTION RES. BRIEF, Jan. 2007, at 1, 7.



124 INDIANA LAW REVIEW [Vol. 42:97

use to calculate the risk of financing or investment/"^^ Building projects must
conform to one of these standard real estate product types or financing becomes
significantly more expensive. The problem is further exacerbated because real
estate financing is globalized, and distant investors in real estate investment

trusts (REITs) demand certain types of development (i.e., the product) that
produce quick returns. Not only does this lead to standardization (typically
upscale), but this homogenization leads to conservatism in decisionmaking about

the types of development to pursue.
^"^^

This lack of "non-upscale" development is also partly due to the lack of

subsidy to provide incentive for affordable, accessible development. ^"^^ The
historic, judicially ratified opposition to multifamily housing in zoning

ordinances and land use decisionmaking indicates that the shortage of non-

upscale development is not solely a question of financial cost.^"^^ Even when
financial support is available for building accessible development, it will often

be opposed on race and class grounds. As Sheryll Cashin argues, property
owners have a financial stake in opposing development that might negatively

impact their property values. ^"^ However, this opposition is also likely due to the
stigmatization of certain social groups. The uniformity of these redevelopment
schemas contains an ideology of exclusion and inclusion. ^"^^ Therefore, a better

accounting of the social psychology and political economy of exclusion is
needed. ^"^^ These often "cookie-cutter" developments practice social

140. See Christopher B. Leinberger, The NeedforAlternatives to the Nineteen Standard Real

Estate Product Types, PLACES, July 2005, at 24, 24.

141. Jeffrey H. Epstein, Advertisers Divide and Conquer, FUTURIST, Mar. 1998, at 2, 16

(reviewing Joseph Turow and arguing that the prevalence of marketing to segments is splitting the

social order: "radio, magazines, and cable television ... in particular are more segmented than

ever. Relatively little content ... is aimed at a demographically broad audience. People

increasingly filter their view ofthe world through these defined media experiences. One reason for

the marketing is that segmentation increases the likelihood that the targeted consumer will

experience a sense of personal identification with a product's image and therefore feel an interest

in purchasing and using it"). What concerns Turow most are the secondary impacts on society—the
invisible walls of isolation created by the comfort zones of similarity. See Joseph Turow,

Breaking Up America: Advertisers and the New Media World, at ix (1997).
142. See J. Peter Byrne & Michael Diamond, Affordable Housing, Land Tenure, and Urban

Policy: The Matrix Revealed, 34 FORDHAM Urb. L.J. 527, 53 1 (2007) (detailing eight possible and

potentially conflicting objectives of subsidized housing: "1) decent shelter; 2) wealth creation; 3)

social integration; 4) urban vitality; 5) civic engagement; 6) training; 7) institution building; and

8) efficient use of public funds").

143. See, e.g., Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 386-88 (1926).

144. Sheryll Cashin, The Failures Of Integration: How Race and Class Are
Undermining the American Dream (2004).

145. See Lior Jacob Strahilevitz, Information Asymmetries and the Rights to Exclude, 104

Mich. L. Rev. 1835, 1850-53 (2006) (exploring strategies to exclude indirectly by creating

exclusionary vibes or constructing developments with exclusionary amenities).

1 46. See Lior Jacob Strahilevitz, ExclusionaryAmenities in Residential Communities, 92 Va.



2009] REBUILDING THE PUBLIC-PRIVATE CITY 125

differentiation with exclusion as the accepted development model through the use

of clusters and geo-demographic profiling. ^"^^ Target marketing in particular

locations leads to stigma^"^^ and disdain. ^"^^ Clusters facilitate exclusion by

allowing specific targeting of demographic groups. ^^° Society has not yet fully

appreciated how such target marketing divides instead of unites. ^^^ Class and
performance are made increasingly more important because of the rise of mass
affluence. ^^^ Citizens have been trained to be consumers; to desire, fantasize, and

"fetishize" market segmentation. Whereas a greater number ofpeople depend on
open access to public recreational opportunities, the rise of mass affluence

L. Rev. 437, 454-55 (2006) (extending the indirect exclusionary argument to clubs and

neighborhoods).

1 47. See generally IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE ( 1 990);

Iris Marion Young, Inclusion and Democracy (2002).

148. See Robert J. Sampson & Stephen W. Raudenbush, Seeing Disorder: Neighborhood
Stigma and the Social Construction of "Broken Windows," 67 Soc. PSYCH. Q. 319, 319 (2004)

(Perceptions of disorder increase based on race and class identity. "Seeing disorder appears to be

imbued with social meaning . . . generating self-reinforcing social processes that may help account

for the perpetuation of urban racial inequality.").

149. Stigma or stigmatization "refers to an invisible sign ofdisapproval which permits insiders

to draw a line around 'outsiders' in order to demarcate the limits of inclusion in any group."

Gerhard Falk, Stigma: HowWeTreat Outsiders 17(2001). According to Falk, the American
ideology derived from the Protestant ethic

includes the belief that individual hard work leads to success and that lack of success

is caused by moral failings, self-indulgence, and a lack of self-discipline Americans

are likely to take credit for any outcomes in their lives which can be viewed as

successful and generally approved. Consequently . . . those among us who deviate from

the Protestant work ethic will be stigmatized and . . . most Americans, will severely

reject those who deviate from these norms the most.

Id. at 334.

150. This is why Costco in Seattle has a massive coffee machine for fresh ground coffee but

does not carry jumbo containers of curry as does the Costco in the Washington, D.C., area. See

Michael J. Weiss, The Clustered World: How We Live, What We Buy and What It All
Means About WhoWe Are 9-13 (2000) (using census data, zip codes, and marketing surveys to
classify people into lifestyle segments based on: ( 1 ) where they live—whether in a city, small town,
or rural area; (2) their lifestage—whether they are young and single, married with children, or a
retiree; and (3) their marketplace behavior). But see John T. Metzger, Clustered Spaces: Racial

Profiling in Real Estate Investment, LINCOLN iNST. OF LAND Pol'y Conf. PAPER 15-16 (2001)

(arguing that racial segregation is replicated in the use of clusters in real estate investment;

discussed more extensively in Audrey G. McFarlane, Who Fits the Profile?: Thoughts on Race,

Class, Clusters, and Redevelopment, 22 Ga. St. U. L. Rev. 877 (2006)).

151. See generally TUROW, supra note 141, at 1-2 (arguing that segmented marketing

emphasizes divisions rather than overlap).

152. See generally PaulNunes&BRIAN JOHNSON, MASS AFFLUENCE: SEVENNEWRULES OF
Marketing to Today's Consumer 29-58 (2004) (discussing contemporary middle class

consumer logic and demands for luxury).



126 INDIANA LAW REVIEW [Vol. 42:97

(financed by credit card debt) means that a huge number of people adopted the
attitudes and preferences of aristocracy or royalty. In turn, their consumer
demand for exclusion is built into the consumer market for commodities. The
home is a cultural commodity, and the ability to stigmatize anyone who
challenges the fantasy by being too different threatens property values. Since
types of homes determine types of commercial amenities, types of development
will likely subordinate certain non-affluent people by developing in ways that
exclude their needs and interests.

3. Subordination in the Location ofRedevelopment.—Renowned playwright
August Wilson wrote ten plays chronicling the Black American experience
through each decade of the twentieth century. ^^^ Nearly all of these plays were
set in the Hill District, a Black neighborhood in Pittsburgh. ^^"^ In three of these
plays, set during the 1960s, 1970s, and 1990s, the characters struggle with the
universally human quest to cope with and make sense of life' s challenges. ^^^ One
additional ongoing challenge present in two of the plays. Jitney and Two Trains
Running, is the threat of urban renewal displacing the characters from their
homes and businesses. ^^^ In Wilson's final play, Radio Golf, the challenge of
urban renewal was renamed economic development. The play centers around the
efforts ofone character—a politically well-connected affluent Black developer

—

to displace an elderly Black homeowner to make way for a Starbucks and a
Whole Foods. ^^^ The threat of redevelopment and displacement featured so
consistently in plays meant to chronicle Black life illustrates the racialized nature
ofproperty ownership. The ubiquitous presence of urban renewal—which today
is termed economic development—means that property ownership in areas with
race and class transformation potential comes with an inherent limitation

—

residency is contingent and subject to revocation. Thus, the second reality of
subordination in redevelopment is that the places where redevelopment occurs
are often subordinating.'^^

The measure of state and local government efficacy has long been its ability
to facilitate economic development.'^^ What has changed, however, is that
globalization is rewriting the face of the city. Because the local economic
development project currently transpires in cities throughout the United States,

153. See Jackson R. Bryer & Mary C. Hartig, Introduction to CONVERSATIONS WITH AUGUST
Wilson, at vii, xiv (Jackson R. Bryer & Mary C. Hartig eds., 2006).

154. Id. at xi.

155. M at vii-xvi.
156. See generally Sandra G. Shannon, August Wilson Explains His Dramatic Vision: An

Interview, in CONVERSATIONS WTTH AUGUST Wilson 118, 145-46 (Jackson R. Bryer & Mary C.
Hartig eds., 2006).

157. August Wilson, Radio Golf 9, 25, 48 (2007).
158. For an excellent, detailed account of how redevelopment affected a Black community in

Cocoa, Florida, see generally Judith E. Koons, Fair Housing and Community Empowerment:

Where the RoofMeets Redemption, 4 GEO. J. ON FIGHTING POVERTY 75 (1996).
159. See Audrey G. McFarlane, Local Economic Development Incentives in an Era of

Globalization: The Exploitation ofDecentralization and Mobility, 35 Urb. Law. 305, 309 (2003).



2009] REBUILDING THE PUBLIC-PRIVATE CITY 127

local economic development within the context of globalization has become
increasingly desperate. '^^ Local economies are being driven by national and
global economic imperatives:

This process of transnational market expansion and integration is

manifested in a range of phenomena: a new international division of
labor, the global spread of financial markets, an interpenetration of

industries across borders, the spatial reorganization of production, a

temporal acceleration in economic activity, vast movements of
population, a diffusion of consumer goods, and a welter of transnational

cultural linkages. Taken together, these serve to significantly alter the
nature of places, the relations of power, and the lived experiences of

peoples in most part of the globe.
^^^

Though globalization is not a fixed phenomenon and not all agree on its contours,
causes, benefits, or detriments, it is still much like global warming: people
generally recognize its presence. '^^ According to David Harvey, globalization is
the "freer circulation of money, commodities and people (and hence capital)

throughout the spaces of the city."^^^ Most significant is the shift in the urban
economy from production-oriented development to consumption. The chief
product of local economies shifts from work to leisure, and both local
government policy and market preference converge in a dramatic urban spatial

restructuring. The primary mechanism for local economic vitality is "attraction
of the affluent" through tourism, development of upscale residential and

commercial amenities, high-tech service industries, and institutions of higher

education.

According to Rachel Weber, states make the built environment more flexible
and responsive to the investment criteria of real estate capital through spatial

policies such as urban renewal. ^^^ A broad interpretation of eminent domain

1 60. Asmara Tekle Johnson, Correctingfor Kelo; Social Capital ImpactAssessments and the

Re-balancing ofPower between ''Desperate" Cities, Corporate Interests, and the Average Joe, 16

Cornell J. L. & Pub. Pol'y 187, 210-29 (2006) (discussing domination of corporations over city
decisions).

161. See Sites, supra note 7, at 123.

162. Saskia Sassen's work in The Global City posited that certain world cities were centers of

global finance and production operations such that they were global cities in population, priorities,

and economic importance. Sassen's insights can be broadened beyond these technopoles of world

capital to every city in America and across the globe because the global economy has permeated

localities everywhere. See generally Saskia Sassen, The Global City: New York, London,
Tokyo (2d ed. 2001); e.g., Brian J. Godfrey, Urban Development and Redevelopment in San
Francisco, 87 GEOGRAPHICAL Rev. 309, 322 (1997) (expanding the global city hypothesis to a

second tier of world cities like San Francisco).

1 63

.

David Harvey, The Political Economy ofPublic Space, in The Politics OFPubuc Space

25 (Setha Low & Neil Smith eds., 2006).
164. Neil Brenner & Nik Theodore, Cities and Geographies of "Actually Existing

NeoLiberalism," in SPACES OF NeoLlberausm 4 (Neil Brenner & Nik Theodore eds., 2002).



128 INDIANA LAW REVffiW [Vol. 42:97

doctrine, therefore, accommodates global capital, which seeks flexibility and

change through creative destruction. Because global capital seeks sites of

lucrative investment, distant investors in REITs control or influence our local

spatial conflicts and policies. '^^ Urban spatial restructuring and redevelopment

presents particular issues of land access and land tenure rights for low- and

moderate-income groups. The site of investment needs to rise in value, and

property markets with economic value depressed by racialized geography will be

particularly attractive for investment. '^^ Working-class communities will always

be more subject to redevelopment so property ownership in undervalued or

centrally located urban areas is a more tenuous form of land tenure. Because

market forces and government are symbiotically intertwined in the eminent

domain process, the most compelling property rights and personhood aspect of

the eminent domain debate is the reality that nojustification can erase the impact

of losing one's home and its deeply associated sense of personal autonomy,
history, and community.

^^^

One reason that discussing eminent domain doctrine remains relevant.

(arguing that redevelopment is contextual, depending on "the legacies of inherited institutional

frameworks, policy regimes, regulatory practices and political struggles").

165. Weber, supra note 102, at 186; see generally Jack H. McCall, A Primer on Real Estate

Trusts: The Legal Basics ofREITs, 2 TRANSACTIONS: Tenn. J. Bus. L. 1 (2001).

166. I expand on this point in McFarlane, The New Inner City, supra note 101, at 17-21 ; see

also Elizabeth M. Iglesias, Global Markets, Racial Spaces and the Role of Critical Race Theory

in the Strugglefor Community Control ofInvestments: An Institutional Class Analysis, 45 ViLL.

L. Rev. 1037, 1039 (2000) ("[RJacial spaces are visible artifacts of both racial segregation and the

relations of investment, production and exchange . . . within racially subordinated communities.").

167. There can be a plus side to the subordination of the location of redevelopment because

one person's subordination is, of course, another person's advantage. In this case, the sweetener

of the redevelopment' s changes are the promise and reality of short-term construction jobs or

service jobs. That these jobs are often low wage or without benefits is a problem, but many say

some jobs are better than no jobs. In fact, some argue that one should bow to the inevitability of

redevelopment and adapt by seeking to benefit from it. For example, the Atlantic Yards Project is

anticipated to:

[B]ring an estimated 10,000 permanent and 15,000 construction jobs, contracting

opportunities for minority- and women-owned business, and billions of dollars in net

benefits, including $2.8 billion in new net tax revenue to New York City and New York

State over 30 years. It will make a real difference for a city where 48.3% of African-

American males are unemployed or out of the workforce entirely, more than 1 in 5

households pay half their income on rent, and fiscal problems continue to force cuts in

important services.

Brief for Brooklyn United for Innovate Local Development (BUILD) et al. as Amici Curiae

Supporting Respondents, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108), 2005

WL 154143, at *3. See Confessore, supra note 105 (demonstrating that color lines have blurred
in support and opposition of the project with Black working-class people possibly being more in

support of the project rather than against because ofjobs. On the other hand, one black proponent

concedes the project is "instant gentrification").



2009] REBUILDEsfG THE PUBLIC-PRIVATE CITY 129

despite the recent flurry of state legislation purporting to restrict eminent domain

for economic development, is that these reform efforts have left the bUght

exception intact. ^^^ The assumption is eminent domain should not be used for
economic development, but only for public infrastructure or "blighted"

properties. Given the difficulty of determining what blight is (one person's

blight is another person's community), the ease of accepting blight elimination

as a basis for exercising eminent domain is, in effect, a way of saying "[t]ake
someone else's property, not mine." Does living in a blighted neighborhood

mean one's property is any less important to the owners who consider that
blighted place home?^^^ What do the 'hood, a highway, and a city park have in
common? They are the quintessential types of public works projects that satisfy
the popular conception of the proper exercise of eminent domain. Public

ownership or public use of a highway or road does not eliminate potential

subordination if most highways are directed through one's neighborhood. The
other end of the urban renewal equation for Black communities and the

devastation they suffered during that era was the federal highway program.

Funds from that program were used to build highways directly through Black

neighborhoods, eliminating vibrant and thriving residential neighborhoods and

commercial districts. While the highways were public, their selected location

devastated specific people and places.
^^^

4. Subordination in the MethodofRedevelopment.
—

^The most subordinating

aspects of redevelopment are probably the methods of development

decisionmaking. Redevelopment consists of a set of social and decisionmaking

practices, bom both of custom and of economic necessity that favor privatized
decisionmaking. Redevelopment is a process heavily dominated by national real

168. See Dana, supra note 15, at 374-78; David A. Dana, Why the Blight Distinction in Post-

Kelo Reform Does Matter, 102 Nw. U. L. Rev. COLLOQUY 30, 30-31 (2007) (discussing how few

states have banned the blight exception).

169. See Bruce Fein, Eminent Domain, Eminent Nonsense, WASH. TIMES, Oct. 12, 2004, at

A16 (describing the Fort Trumbull project as a "middle-class re-enactment of Berman" and

criticizing Petitioners' effort "to make the Constitution pivot on Marxist-like class distinctions" by

limiting condemnation for redevelopment to blighted land); see also Lynn E. Blais, Urban

Revitalization in the Post-Kelo Era, 34 FORDHAM Urb. L.J. 657, 686 n. 178 (2007) ("Indeed, many

ofthe cases in which landowners have prevailed in state courts involve urban revitalization projects

that encompass middle-class landowners."); Dana, supra note 15, at 366 ("Kelo-inspired reform

movement privileges condemnations for blight removal and ... the stability of middle-class

households. . . ."); Amanda W. Goodin, Note, Rejecting the Return to Blight in Post-Kelo State

Legislation, 82 N.Y.U. L. Rev. 177, 178-79 (2007); see, e.g.. City of Norwood v. Homey, 853

N.E.2d 1115, 1144 (Ohio 2006); County of Wayne v. Hathcock, 684 N.W.2d 765, 769 (Mich.

2004).

170. See Tullock v. State Highway Comm'n, 507 F.2d 712, 714 n.l (8th Cir. 1974) ("The

impact of federally-assisted urban renewal and highway construction projects cannot be

overestimated. More than two million dwelling units were demolished by such projects in the years

between 1950-68 according to one study by the National Association of Home Builders, and some

62,000 families and individuals were displaced by federal highway programs in 1970 alone.").



130 INDIANA LAW REVIEW [Vol. 42:97

estate investment interests, practices, and conceptions.
^^^

Although issues arise

because ofgenuine conflicts or disagreements over development, for which there

may be no constitutional prescription (it depends on politics), the main reason
courts are asked to intervene in eminent domain exercises is a political process

failure concerning redevelopment. The political process failure occurs because

the economic development process is highly privatized. Additionally, cities are

not merely welcoming to business but are using their governmental powers as

proprietors in what is known as the "public-private" partnership. ^^^ As Marc
Mihaly argues, public and private roles have been reordered in the public-private

partnership in order to allocate risk and reward consistent with market conditions

and requirements. ^^^ The public-private partnership has become entrenched in

the way cities think and act.^^"^ As a consequence, the public role of local
government in development is now linked with private goals and perspectives.
Thus, the public's emphases fall necessarily on commercial success. Not only

does the City establish quasi-private entities to oversee development, but the city

itself is being carved up into private enclaves, both in terms of property

ownership as well as financing and governance. Most Cities have authorized

private business districts to manage these neighborhoods. ^^^ Financing

techniques such as tax increment financing often leverage future tax revenues

arising from the new developments. Most, if not all, of the increased taxes are
paid to repay the district's debt.^^^

Second, opportunities for influencing economic development decisionmaking

are limited because of the privatized decision-making process and the nature of

informal communications and relationships between corporations, developers.

Cities, and quasi-private development agencies. The economic development

decision-making process is further privatized because it is run by quasi-public

authorities immune from popular accountability. ^^^ Privatization of public

171. SeesupraFartl.D.2-3.

172. See SusAN S . FAiNSTEEvf, The City Builders : Property Development in New York
AND London, 1980-2000, at 136-37 (2d ed. 2001) (discussing the lessons learned from publicity-

initiated private redevelopment projects in Kings Cross and Times Square); see also David L.A.

Gordon, Review ofFainstien, June 2002, http://www.h-net.org/reviews/showrev. php?id=6384.

173. See Mark B. Mihaly, Public-Private Redevelopment Partnerships and the Supreme

Court: Kelo v. City ofNew London, 7 Vt. J. Envtl. L. 41 , 41-42 (2005), available at http://www.

vjel.org/joumal.php?vol=2005-2006.

1 74. For further development of this point, see Audrey McFarlane, Putting the "Public " Back

into Public-Private Partnerships for Economic Development, 30 W. New Eng. L. Rev. 39, 41

(2007).

175. See Audrey G. McFarlane Preserving Community in the City: Special Improvement

Districts and the Privatization of Urban Racialized Space, 4 STAN. AGORA 5, at *1 (Fall 2003),

«va//«^/^ a? http://agora.stanford.edu/agora/volume4/mcfarlane.shtml.

176. See George Lefcoe, Finding the Blight that's Rightfor California Redevelopment Law,

52 Hastings L.J. 991, 995-97 (2001).

177. See Peter W. Salsich, Jr. , Privatization and Democratization—Reflections on the Power
ofEminent Domain, 50 ST. LOUIS U. L.J. 751, 755 (2006).



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 3

1

decisionmaking presents a democratic political process failure. Implicit in this

argument is the understanding that in the political process of development, the

lower classes and the politically unconnected lose out in a process that is

informal, privatized, and shielded in large part from public scrutiny.

Third, strategic considerations can influence the application and waiver of

regulatory power through the informal relationship between city administrators,
developers, and any commercial entity wishing to locate in the city.^^^

Regulatory waivers, infrastructure write-downs, and public financing are the

norm. The public-private distinction continues on its undefined path. Cities act
like merchants or proprietors when they pursue an explicit affluent class
attraction policy and use incentives to lure and retain them.*^^ Charles Tiebout's

idealized vision of local governments as proprietary entities seeking to attract an

optimal number of city residents (the "consumer-voters") has come to fruition.
The problem with Tiebout's "model" is the reality that not everyone fulfills
Tiebout's idealized assumptions that are fundamental to making his model work.

Most people do not live on investment income, enjoy perfect employment
opportunities, or even have the realistic ability of escaping violent impoverished

neighborhoods. The result of both Tiebout's thesis and the reality of local
government today is an alarming slant in local government policy towards the

needs of those with wealth.

Additionally, the City's proprietor-like acts may relate to the class identity
of the elite decisionmakers who dominate development decisionmaking. The
existence of these networks suggests that part of the reason for economic

development's popularity as a local government project is not only the desire to

promote the economic growth of the municipality; it may also be attributable to
the desire to get along with one's elite peers. ^^^ An alternate explanation is that
the networks exist because private business has a way of legitimizing public
government. This is confirmed by the prevalence of informal relationships and

communications between corporations, developers, Cities, and quasi-private

development agencies as the operative mode of conducting city life.^^^ Deal-
making and public subsidy ofinfrastructure costs and coverage of site acquisition
expenses are a part of this process. Redevelopment is characterized by formal

deal-making that is preceded and shaped by informal relationships and behind-

the-scenes communication and agreements. These deals are run through public

approval processes only when absolutely necessary. By the time the deal reaches
the public process, the parameters are set and the nature of the development is no

178. A pro-economic development discourse also makes economic development seem
inevitable and beneficial. See David Wilson, Metaphors, Growth Coalition Discourses and Black

Poverty Neighborhoods in a U.S. City, 28 Antipode 72, 73 (1996) (analyzing the metaphors used

in "growth" discourse in urban development).

179. See McFarlane, The New Inner City, supra note 101, at 21-22.

180. Or, at the very least, one's class position must undeniably influence one's perspective

about what is desirable development.

181. See generally BERNARD J. Frieden & Lynne B. Sagalyn, DOWNTOWN, INC. HOW
AmericaRebuilds Cities 17 (1989) (describing these relationships in the mid-twentieth century).



1 32 INDIANA LAW REVIEW [Vol. 42:97

longer subject to question or significant modification.'^^ Thus, anyone inclined

to oppose such deals is forced into an all-or-nothing situation: take it or leave

Fourth, development must happen quickly to be cost-effective. Politics are

incremental. Thus far, these disagreements over development have been ignored

in both the blight and the economic development context. Under the current

regime, the effect of the broad interpretation of public purpose is that city

property owners are left to the political process. Further indication of political

process failure is that individual property owners become the inadvertent

champions for their communities by opposing the taking of their individual

parcels. But their opposition is almost too little, too late. They should have been

involved in the formulation of the plan. Opposition to the plan typically proves

ineffective in the long term and victories usually only slow down the process.
The individual property owner against the government requires organizing and

activism to combat governmental decisionmaking. Even if one fights,

displacement may not be averted and the ability to return is not guaranteed.
In light of the nearly unlimited discretion afforded to states and local

governments in the use of eminent domain power, the real controversy is fueled

by the propriety of the underlying development plan—or to use the Court's
language, the carefully considered development plan.'^"^ The institutional norms

and structures of redevelopment sound very good on paper. The public entity,

the City, is authorized by the State to control the use of land. The planning

process seeks public input. The government enters into agreements with

developers to achieve jointly what either could not achieve on its own because
it is nearly impossible to cost-effectively assemble parcels for redevelopment

independently. The government does not bring the organizational structure,

know-how, or finances to carry out projects alone. Often, the anticipated market

barriers of assembly problems suggest that a deal will not be touched. The lack

of public accountability in economic development decisionmaking then raises

questions about how those plans are put together and whether a plan adequately
accounts for all relevant dimensions of the public interest. The lack of public

accountability also raises issues of public resource allocation towards large

private enterprises.'^^ Many people have common-sense impressions that Cities

1 82. See Patience A. Crowder, "Ain 7No Sunshine ": Examining Informality and State Open

Meeting Acts as the Anti-PublicNorm in Inner-City RedevelopmentDealMaking, 74 Tenn. L. Rev.

623, 638 (2007).

183. See, e.g., David Nakamura, Council Approves Altered Stadium Deal; Requirementfor

50% Private Financing Leaves Team's D.C. Future in Question, WASH. POST, Dec. 15, 2004, at

AOl; David Nakamura & Thomas Heath, Baseball Rejects Council's Changes in Financing Plan

for D.C. Stadium, WASH. POST, Dec. 16, 2004, at AOl; see also Gregory J. Crowley, The

Politics OFPlace: Contentious Urban Redevelopment in Pittsburgh, 145-46 (2005) (case

studies suggesting that city leaders strategically release information as late as possible to forestall

opposition).

184. Kelo V. City of New London, 545 U.S. 469, 478 (2005).

1 85. See Peter D. Enrich, Saving the Statesfrom Themselves: Commerce Clause Constraints



2009] REBUILDING THE PUBLIC-PRIVATE CITY 133

are beholden to big corporations and developers and are engaged in naked land-
grabs to redevelop property to more lucrative tax-receivable, luxury-related land
uses like condos and upscale retail and entertainment complexes.

The eminent domain controversy focuses on taking property from private
parties and transferring it to developers, i.e., other private persons, to put the
property to another use consistent with the town's revitalization plans. It seems
a violation of all principles of property ownership to allow government to
terminate one's property rights for the benefit of another. Yet, would
government-run reconstruction projects produce a better outcome? The public-
private distinction is not helpful in resolving the eminent domain/redevelopment

dilemma. From an anti-subordination standpoint, redevelopment is not "okay"
by virtue of any particular legislative classification. ^^^ Instead, subordination
arises from the systematic impact of executing particular governmental acts. In
Village of Willowbrook v. Olech, for example, the Supreme Court allowed a
single homeowner to bring an equal protection claim based on unequal treatment
in the execution of governmental regulations.*^^ If a single act by government
can be the basis for an equal protection claim, then the cumulative effects of

similar redevelopment decisions by different local governments should seem a
justifiable basis for an inquiry into the use of eminent domain and the nature of
government support for redevelopment.

The reliance on a carefully considered plan leaves room for a form of
municipal corruption which is the giving in to the taste of the affluent and
reinforcing the disadvantage of not being upscale. If private companies want the
benefit of public powers for redevelopment, then their developments should
necessarily reflect the population in terms of residential and commercial
amenities. The issue is the forces of capital, the intersection of race, class, and
geography, and the fight for the social status of the city.*^^ This aspect of

on State Tax Incentivesfor Business, 1 10 Harv. L. Rev. 377, 393 (1996) (discussing the pressure

to engage in economic development through business incentive competition). But see Daimler-

Chrysler Corp. V. Cuno, 547 U.S. 332, 343 (2006) (state and city taxpayers Commerce Clause

challenge to massive business tax incentives rejected for lack of standing under Article III of U.S.

Constitution),

1 86. Joseph Tussman & Jacobus tenBroek, The Equal Protection ofthe Laws, 37 Cal. L. Rev.
341, 343 (1949) (in most contexts, the basic role of the Equal Protection Clause is to act as a limit

on government classifications); see, e.g., Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) ("The Equal

Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers

from treating differently persons who are in all relevant respects alike.").

187. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (finding no

cause of action because the practical result will probably be the proliferation in the federal district

courts of cases where an individual person claims that governmental officials have treated him or

her unequally).

1 88. See Elizabeth M. Iglesias, Global Markets, Racial Spaces and the Role of Critical Race

Theory in the Strugglefor Community Control ofInvestments: An Institutional Class Analysis, 45
ViLL. L. Rev. 1037, 1048 (2000) ("[T]he struggle against subordination must be understood as a

struggle for power within the institutional arrangements through which power is legally organized



134 INDIANA LAW REVIEW [Vol. 42:97

Fourteenth Amendment jurisprudence has been an explicit project of the study
of regulatory takings. ^^^ Regulatory takings is also an anti-subordination

doctrine, albeit not to avoid stigma, but to preserve the privileges and privileged

status ofproperty owners. ^^^ In the regulatory takings context anti-subordination

addresses the limits of the local democratic process by acknowledging that small
groups of property owners will rarely have the political will or power to
realistically challenge local government decisionmaking that limits their use of
their property. Thus, the government's actions are considered tantamount to

taking their property.
'^^

n. Development Disagreements in the Suburbs

A. The Struggle over the Right to Development

Economic development is by no means limited to urban settings. In the
older, declining suburbs, local government councils resort to economic
development techniques previously found only in the cities. ^^^ In the newer,

ever-expanding suburbs, the major issue is not only development but too much
development. ^^^ Rural space is being paved over for new homes, commercial
office parks, and retail projects. ^^"^ State and local government efforts focus

primarily on seeking to ameliorate the impact of development on open space,
delicate ecosystems, and disappearing rural land. They seek to regulate, balance,
or halt the development process. *^^ Governmental efforts to restrict development

and deployed. This in turn means that the anti-subordination objectives at the heart ofCRT depend
on reorganizing these institutional structures [and] reforming the legal doctrines that construct

them.").

189. But see James E. Fleming, Constructing the Substantive Constitution, 72 TEX. L. REV.

211,211-12 (1993) (arguing the Court has fled from substance and accusations of "Lochnering").

190. 5e^ discussion m/ra Part III.

191. As John Calmore argues, "the oppressed must use rights as attention grabbers and wedges

.... In the context of collective conflict, the assertion of rights must be seen as claims to power,

privileges, and resources." John O. Calmore, Critical Race Theory, Archie Shepp, and Fire Music:

Securing an Authentic Intellectual Life in a Multicultural World, 65 S. Cal. L. Rev. 2129, 2214

(1992).

192. See, e.g.. County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004) (discussing the

county's attempt to capitalize on its airport and follow the new aerotropolis approach to economic

development by making transportation the hub of development).

1 93

.

See JoELGarreau, Edge City: Life ontheNewFrontier 1 2 ( 1 99 1 ) ("Nowhere in the
American national character, as it turns out, is there as deep a divide as that between our reverence

for 'unspoiled' nature and our enduring devotion to 'progress.'").

194. See generally Robert W. Burchell & Naveed A. Shad, The Evolution of the Sprawl
Debate in the United States, 5 HASTINGS W.-Nw. J. Envtl. L. & Pol'y 137 (1999).

195. See, e.g.. Capacity analysis plus exactions statute—FLA. STAT. ANN. § 163.3180 (West
2006 & Supp. 2009) (enabling local governments to measure the adequacy of public facilities and
restrict development that would exceed predicted levels of service, with exceptions for urban



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 35

have been controversial because they interfere with the development or

investment expectations of property owners. A number of regulatory takings
challenges centering around property owners rights to develop their properties

have been decided by the U.S. Supreme Court, most recently in the Tahoe-
Sierra^^^ and Lingle v. Chevron^^^ decisions. ^^^ In comparison with the level of

loss and disruption seen in the eminent domain context, the regulatory takings
stories are less dramatic, less disruptive, and arguably less compelling. Yet the

response and opposition to government regulation have been no less angry or
spirited. At the heart of the regulatory takings decisions is a fundamental
disagreement over interfering with development, and a heartfelt belief that
property ownership includes a right to development.

The Supreme Court's fact-specific regulatory takings doctrine has shifted
back and forth in its responsiveness to property owners seeking the right to resist

governmental regulation and develop their properties. Overall, however, the

doctrine has been more responsive to property owners seeking the right to resist
redevelopment and retain ownership of their properties. Although the doctrine

has evolved imperfectly, its intention to solidify property-based boundaries

against the intrusion of government decisionmaking has very clearly signaled to

local governments that they should tread carefully when individual interests are
in conflict with public need.

Accordingly, the evolution of regulatory takings jurisprudence lays out one

of the most consistent anti-subordination doctrines in modem law. Although the
analysis is framed in terms of individual harm to individually held property
rights, the Court's willingness to intervene on behalf of citizens in situations of

great public need (i.e., environmental preservation^^^) or to intervene where the
personal harm is rather minimal and the matter is one of principle (e.g. the

development or payments for improvements by developers); Md. Code Ann., Agric. §§ 2-501 to

-518 (West 2002 & Supp. 2008) (establishing the Maryland Agriculture Land Preservation
Foundation with the power to create agricultural preservation areas and purchase agricultural land

preservation easements); Urban Growth boundary—OR. Rev. Stat. § 197.296 (West 2003 & Supp.
2008) (establishing factors to measure the sufficiency of buildable lands within an urban growth

boundary that is created based on residential distribution); Growth moratorium ordinance—Union
County, N.C., Amendment to the Union County Land Use Ordinance Establishing a 12-Month

Moratorium on Major Residential Development (Aug. 15, 2005, Extended July 25, 2006), available

at http://www.co.union.nc.us/Portals/0/Planning/Agenda_Min/2006/PB_min06-20-06.pdf

(establishing a twelve-month moratorium on residential development over five dwelling units while

the county creates an Adequate Public Facilities ordinance); Coastal protection

—

SantaBARBARA

County, Cal., Coastal Zoning Ordinance, ch. 35, art. II, § 35-50 (2004) (protecting, among

other things, public access and quality of the environment through prohibition of dry sand

development, easements between road and wet sand, and set-backs for bluff

developments), available at http://www.sbcountyplanning.Org/PDF/A/Article%20II.pdf.

196. Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002).

197. Lingle v. Chevron U.S.A., 544 U.S. 528 (2005).

198. See id. at 531; Tahoe-Sierra, 535 U.S. at 306.

199. See, e.g., Tahoe-Sierra, 535 U.S. at 306.



136 INDIANA LAW REVffiW [Vol. 42:97

principle of the right to exclude has been abrogated in a way that the Court finds
objectionable^^°) provides a striking contrast to the eminent domain
redevelopment cases. The Court is most interested not in the individual rights of
the parties before the Court, but more generally in protecting property owners as
a group from the public enterprise of government and the public needs of the
general welfare.

In particular, the doctrine of regulatory takings evolution reflects an

imperfect, yet effective attempt to insulate private property owners from the
structural inequities of the political process. In this process, the harms to a few
or to consistently disadvantaged groups (in relation to the ability to affect

governmental decisionmaking) suggest a structural disadvantaging of property

rights in the face of increasingly complex and demanding public needs. Because
the doctrine's evolution involved an attempt, albeit largely unsuccessful, to

harden property rights protections by intervening to protect property owners
based not on the extent of impact but on principle, the evolution of the regulatory

takings doctrine suggests that regulatory takings is an anti-subordination

doctrine. By creating a bulwark against the demands of public need, the doctrine
implicitly supports individualism and withdrawal into private enclaves; it also

activates the agency of suburban property owners by giving them a right to resist
governmental decisionmaking.^^^

The governmental projects of city and suburb are not unrelated. Fostering
development in one setting and attempting to regulate, if not halt, development

in another, takes place against a backdrop of each type of geographic area

battling to obtain, retain, or manage middle-class residents.^^^ Both city and
suburb, to the extent this binary distinction retains salience, are engaged in a

battle for identity to ensure that they will both capture the middle- and upper-

middle class resident as well as establish themselves as the type of geographic

area most associated with the social status, privilege, and power of affluent
individuals.^^^ The geography of city and suburb is closely associated with

200. See, e.g. , Lingle, 544 U.S. at 53 1

.

201. The exclusionary zoning issue is based on this quest for some approximation of upper

middle-class status. Zoning for the tax rate necessarily sets a premium on higher end incomes and

residents. To the extent that race is associated with lower incomes in people's minds, the racial

component of upper-middle-class identity is clear (regardless of the reality). See J. Peter Byrne &
Michael Diamond, Affordable Housing, Land Tenure, and Urban Policy: The Matrix Revealed,

34 FORDHAM Urb. L. J. 527, 528 (2007); Lee Anne Fennell, Exclusion 's Attraction: Land Use

Controls in Tieboutian Perspective, in THE TffiBOUT MODEL AT FIFTY: ESSAYS IN PUBLIC
Economics in Honor of Wallace Oates 163, 172-77, 186-89 (William A. Fischel ed., 2006)
(exploring motives for exclusion).

202. See Maureen Kennedy & Paul Leonard, DEALING WITH NEIGHBORHOOD Change: A
PrimerONGentrmcationANDPOUCYChoices 1 (2001), avaZ/aZj/e a? http://www.brookings.edu/

reports/200 l/04metropolitanPolicy.aspx ("[A] new corps of mayors has made attracting middle-

and upper-income residents back to their cities a leading priority, to revitalize the tax base of their

communities, the visibility of their neighborhoods and the vibrancy of their downtowns.").

203. See J. Eric Oliver, Democracy in Suburbia 5 (2001) (arguing that suburbanization



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 37

maintaining an identity with particular spatial histories and configurations of

property ownership or lack of ownership.^^ Therefore, economic development,

which is often predicated on attracting middle-class and affluent individuals by

building or providing residential, commercial, and retail amenities that satisfy

their consumption tastes, is in fact a battle to create a new identity for the city.
Thus, battles in the suburban context over land use related to a notion of

identity in the background of the struggle to retain the right to develop. For

example, fee simple absolute bestows the ultimate in legal rights and protections

against the encroachment of outsiders—people, the economy, and government.
This property right helps to formulate and reflect one's identity. One's identity

comes with an associated level of agency—that is, the ability to exercise free will
with regard to decisions and actions. Therefore, identity and agency are two

components ofproperty—what one expects to receive by owning property. Both
concepts are constitutive of one another as well as a means of achieving the
other. Property ownership is ultimately intended to endow individuals with a
certain amount of agency to exercise the "sticks" in the bundle of property

rights—the right to use and enjoy, transfer, exclude; the right to be immune from
expropriation or damage, the right to devise, and so on. Therefore, property

doctrine conceives of denial of property rights as a denial of individual agency.

Although this is recognized implicitly, it is important for understanding that

regulatory takings doctrine requires an adequate consideration of these different

dimensions of property ownership to create consistent doctrines to handle

property ownership and residency across varying geographies.

The fundamental ordering principle of regulatory takings doctrine is that
sometimes regulation just "goes too far."^^^ This statement, made at the dawn of
the judicial willingness to acknowledge and provide a remedy for the impacts of
regulation on property owner agency, captures the essence of regulatory takings
doctrine. The jurisprudence associated with the doctrine is a complex, highly
contextual attempt to limit governmental regulation through an ad hoc fact-based

process, from which is distilled the refuge that property ownership provides to

citizens. Justice Holmes's famous statement reflects both an increasing

sophistication in conceptualizing property rights and an evolution in thinking

about such rights against the government's prerogative to protect the general

welfare. The statement represents a shift from willful blindness of the impacts
on citizens to an attempt to mediate between government and citizen. It turns on

judicial gut-felt principles of fundamental fairness couched in the language of

property rights.

Regulatory takings doctrine represents a slow evolution in the idea of

displaces social conflicts between citizens based on race and class into social conflicts between

political institutions).

204. It is not hard to picture geography and come up with an identity for the area—an
economic class that will be associated with a particular racial identity. Although race does not

always track class, more often than not, it does. See generally Lee Anne Fennell, Properties of

Concentration, 73 U. Cffl. L. REV. 1227 (2006).

205. Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).



138 INDIANA LAW REVIEW [Vol. 42:97

acknowledging different impacts of the government on citizens. If a citizen can

point to a significant-enough impairment of a property that decreases the

economic value of the property enough to be considered harmful, then it will be

considered a taking. In one historical sense, this tracks a similar evolution in

eminent domain law. At one time in some jurisdictions, the government merely
took property and rarely, if ever, paid compensation.^^^ This was upheld by the
courts in part because of ajudicial unwillingness to acknowledge the impacts on

property owners for fear of interrupting the governmental project. It was also
rationalized under the rubric of just compensation, which was considered a
matter of opinion. This willful blindness gradually ended and eminent domain

law and the regulatory takings concept evolved in tandem. First, eminent domain

law acknowledged different kinds of actual seizures that require compensation.

This led to acknowledging physical occupations directly connected to

government activity that severely harmed landowners under the rationale of
inverse condemnation. For example, flooding^^^ and blasting condemnation were

recognized as unintentional indirect exercises of eminent domain accomplished

through an affirmative government act. This idea was extended to include planes

flying overhead as a significant-enough taking tantamount to physical

occupation.^^^ At this point, regulatory takings concepts and eminent domain law

diverged. Eminent domain doctrine remained steady for nearly fifty years with

the Supreme Court adopting a deferential attitude towards the local government'

s

exercise of eminent domain power. In contrast, regulatory takings doctrine

reflects a less generous attitude towards the local government exercise of police

power to manage the ill effects of development.

B. Is There a Right to Development? Tracing the Court's Response

to the Claim of the Right to Development

The recent evolution in regulatory takings doctrine is difficult to characterize
because each Supreme Court decision has seemed to signal a new direction.
However, some general contextual observations are relevant. First, the suburbs
rose and were created partly in response to the negatives of the city. Suburbs

were a refuge from the city's crowded conditions and a sanctuary from the large

bureaucracies controlled by ethnic immigrants and mob bosses. They were
created in a quest for local control, for exclusion, and for the right to escape from

all of the city's disadvantages. This quest to escape from disadvantage is an

206. See generally Arthur McEvoy, Markets and Ethics in U.S. Property Law, in WHO Owns
America?: Social Conflict over Property Rights 94 (Harvey M. Jacobs ed., 1998) (brief

historical description of early eminent domain law).

207. Pumpelly V. Green Bay Co., 80 U.S. 166, 177 (1871) (extreme form ofphysical intrusion

is always a taking such as when a dam floods neighboring property).

208. United States v. Causby, 328 U.S. 256, 267 (1946) (regular flights overhead by military

aircraft held a taking); see also Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)

(navigational servitude on pond housing private marina that involved actual physical invasion held

a regulatory taking).



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 39

important dimension of the geographical context ofregulatory takings decisions.

Many regulatory takings cases reflect heightened privatized sensibilities about
property rights, privilege, and affluence: the suburbs are designed for the

affluent, who are usually able to buy their way out ofurban disadvantages, social
disorder, and redistribution imperatives from the heterogeneous society.

Second, the regulatory takings cases reflect a struggle over whether

development is a stick in the bundle of property rights. The underlying common
claim has tended to center around a property owner' s quest to develop his or her

property. The regulatory takings cases illustrate a background debate in property
law about whether the bundle of property rights includes "the right to develop."

Some commentators are unequivocal in their conviction that there is a right to
develop. In Penn Central Transportation Co. v. City ofNew York,^^^ the notion
of a right to develop was rejected in favor of the concept of regulatory takings as
protecting only "investment-backed" expectations of such magnitude that they

outweighed the reasonableness of public regulation.^*^ Assertions of a right to

development are implicit in most of the major Supreme Court regulatory takings
decisions. Regulatory takings claims assert that the right to develop is an

inviolable stick in the bundle of property rights. Regulatory takings doctrine has

shown an indirect solicitousness of this desire to develop, which is consistent
with a common law tradition that the right to develop is highly prized in
American law.^''

Notwithstanding the acceptance of most, if not all, principles of English

common law into the property doctrine of the United States, most states rejected
English notions that did not fit with the new and developing character of the
country.^^^ In Prah v. Maretti,^^^ the Wisconsin Supreme Court explained that

209. 438 U.S. 104(1978).

210. See Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical

Foundations of "Just Compensation " Law, 80 Harv. L. Rev. 1 165, 1233-34 (1967) (citing Penn

Cent. Transp. Co., 438 U.S. at 104); see also Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027

(1992) (opining that the Court's '"takings' jurisprudence . . . has traditionally been guided by the

understandings of our citizens regarding the content of, and the State's power over, the 'bundle of

rights' that they acquire when they obtain title to property"); Kaiser Aetna v. United States, 444

U.S. 164, 175 (1979) (using the term "reasonable investment backed expectations"); Daniel R.

Mandelker, Investment-Backed Expectations: Is There a Taking?, 31 WASH. U. J. Urb. &
CONTEMP. L. 3, 5-6 (1987) (questioning Penn Central's omission of the estoppel or vested rights

doctrine as a natural limit to the extent of valid investment-backed expectations. Without these

existing doctrinal limits, "the expectations taking factor introduces a landowner tilt to taking theory

that did not exist before").

211. McEvoy, supra note 206, at 94 ("The law of property in the United States contains a

profound bias toward developmental uses and against such nonmarket values as the health and

welfare of communities that live on the land or, indeed, the ecological well-being of the land

itself.").

212. See, e.g., Dillman v. Hoffman, 38 Wis. 559, 574 (1875) ("In new states like this, the uses

ofland and of structures on land are more variable with the growth ofpopulation and business, than

in England or the older states; and it might tend to impede sale and improvement of real property.



140 INDIANA LAW REVIEW [Vol. 42:97

the common law rejection of a right to sunlight reflected the fact that the
nineteenth and twentieth centuries were a period of growth when change was
expected:

^^"^

As the city grows, large grounds appurtenant to residences must be cut
up to supply more residences .... The cistern, the outhouse, the
cesspool, and the private drain must disappear in deference to the public
waterworks and sewer; the terrace and the garden, to the need for more
complete occupancy .... Strict limitation [on the recognition of
easements of light and air over adjacent premises is] in accord with the
popular conception upon which real estate has been and is daily being
conveyed in Wisconsin and to be essential to easy and rapid
development at least of our municipalities.^^^

Direct restraints on alienation have also been disfavored by the courts for
development reasons:

Another evil growing out of a restraint is its effect to discourage
improvements when it is imposed upon an interest in land. A landowner
will be reluctant to make improvements upon land that he cannot sell
during the period ofrestraint, which may be a long term of years, or even
his whole life. In many instances, therefore, the restraint deters the
owner of land from obtaining the maximum enjoyment of it; it may also
retard the development of a particular section of the community .... If
a substantial portion of our land were subject to restraints upon
alienation, the resultant effect upon social and economic life would be
serious.^

'^

Laws designed to restrict development merely to preserve open land, natural
resources or wildlife are a significant departure from, if not a repudiation of, the

orientation of American property law.^'^ A good portion of regulatory takings

if old uses of soil or buildings should be too easily placed beyond the power of owners by

easements implied by conveyances in their chains of title."); see also Fountainebleau Hotel Corp.

V. Forty-Five Twenty-Five, 1 14 So. 2d 357, 359 (Fla. Dist. Ct. App. 1959) (allowing a hotel tower

to block the pool and beach of neighboring hotel, rejecting an easement for light and air on the

rationale that the English doctrine of ancient lights was rejected in the United States).

213. 321 N.W.2d 182 (Wis. 1982).

214. See, e.g., id. at 236.

215. See id. at 189 (quoting Miller v. Hoeschler, 105 N.W. 790, 791 (Wis. 1905)); see also

Depner v. U.S. Nat'l Bank, 232 N.W. 85 1, 852 (Wis. 1930). The nuisance cases further illustrate

the law's common pronouncements on development; the way in which the doctrine has been
defined and applied has encouraged unimpeded development. See Hadacheck v. Sebastian, 239

U.S. 394, 404 (1915); Spur Indus., Inc. v. Del E. Webb Dev. Co., 494 P.2d 700, 706 (Ariz. 1972);
Boomer v. Atlantic Cement Co., 257 N.E.2d 870, 871 (N.Y. 1970).

216. White v. White, 251 A.2d 470, 473-74 (N.J. .Super. Ct. Ch. Div. 1969) (quoting 6

American Law OF Property § 26.3, at 413-14).
217. McEvoy, supra note 206, at 101-02. (Early "traditional common-law restrictions on



2009] REBUILDCsfG THE PUBLIC-PRIVATE CITY 141

doctrine represents an attempt to maintain consistency with the past or traditional

presumptions in favor of development.^ ^^ The claim that the government has no

right to bother someone on his or her property only works with the implicit rural

assumption that what one does on private land does not affect others. As the
nation has developed, it has become more difficult for a property owner to argue

that what one does on his or her own property does not affect others in terms of
open land availability or unique types of property. Therefore, the presumption

towards development is no longer as universally beneficial or a matter of life and

death it once was. Similarly, the claim that one can hide on his or her land and

do anything one wants is not true. Thus, property is not immune from societal
interests.

The third general observation is that the ad hoc, factually based analysis of

the competing interests of property owner and government has resulted in a

doctrinally complex shifting back-and-forth in case outcomes. Although volumes

have been written about the imperfections and contradictions in the rules

announced in these cases, anyone who steps backs and looks at the cases will see
a relatively consistent evolution ofregulatory takings reasoning since 1987. That

evolution reveals the Supreme Court's emphasis on an additional analytical

construct focusing on whether an aspect or dimension of property rights has been

impaired.^^^ This conceptual severance approach is further divided in two. The

first is the categorical rule, under which a particular impact on a property owner

is always a taking. The second imposes an intermediate heightened scrutiny

standard in situations where the Court perceives inequality of bargaining

power.^^^ In other words, the most predictable factor in the varied outcomes^^^

seems to be the way in which the t^ngs question is framed from the property
owner' s perspective or from the government' s perspective. The resulting takings

inquiry therefore emphasizes one side's interest and minimizes the other. In

Armstrong v. United States,^^^ Justice Brown offered the classic rationale for
equating certain exercises of governmental regulatory power with the eminent

domain power: the purpose of the notion of takings is "to bar Government from

forcing some people alone to bear public burdens which, in all fairness and

property ownership for centuries had limited the uses to which individual owners could put their

property ... so as to preserve the stability of the traditional agrarian economy over the long run .

... In the early nineteenth century, many of these traditional restrictions fell away as American

courts overturned these 'anti-developmental' property rules and replaced them with market-

oriented, pro-development doctrines so as to encourage what the legal historian J. Willard Hurst

(1956) called the 'release of entrepreneurial energy.'").

218. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 377 (1994); Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1005 (1992); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 827 (1987).

219. See, e.g., Lucas, 505 U.S. at 1019.

220. See, e.g., Dolan, 512 U.S. at 374; Nollan, 483 U.S. at 825.

221. See generally John Martinez, A Critical Analysis of the 1987 Takings Trilogy: The

Keystone, Nollan and First English Cases, 1 HofstraProp. L.J. 39 (1988).

222. 364 U.S. 40 (1960).



142 INDIANA LAW REVIEW [Vol. 42:97

justice, should be borne by the public as a whole."^^^

Eminent domain involves the claim of taking the right to keep one' s property.
This is not merely a compensation issue, but also a takings issue. Regulatory

takings doctrine evaluates the right to use one's property and the extent of the

right to the highest and best use of land and to create new economic value from
land. The Court's intention has been to protect the ability of property owners to,
in effect, resist governmental decisionmaking in two ways. First, this is
accomplished by providing additional protection against arbitrary
decisionmaking and affirming well-considered planning that is neither arbitrary

nor capricious where there is average reciprocity of advantage. The second way
is by ensuring that particular owners have not been singled-out for arbitrary

treatment. The way in which the Penn Central Court conducted its ad hoc fact-
based analysis of the claim is quite instructive. It illustrates the different

dimensions of the inquiry into when government regulation has gone too far and
property rights have been impaired.

C. Regulatory Takings Analysis of the Political Process Through a

Government Lens

The aspect of the takings claim considered most salient is the economic
impact of the regulation. According to the Court, a diminution in value has to be

substantial in order to distinguish it from the ubiquitous economic impact

attendant with most government land regulation. In other words, mere

diminution in value, standing alone, cannot establish a taking.^^"^ Instead,

diminution in value must be combined with "something else," to amount to a
taking. That "something else" could be, for example, being singled out for

discriminatory treatment.^^^ In Penn Central, because the challenged landmark
law was part of a comprehensive plan of land use regulation,^^^ it could not
involve a singling out or "few are burdened" problem.^^^

The pure property rights approach to taking would be to conceive of the

223. See id. at 49; see also Michelman, supra note 210, at 1216-17 (discussing being subject

to the control of political majorities as a compensable occasion).

224. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 131 (1978).
225. Singling out touches on the Equal Protection dimension of takings analysis. See Nollan,

483 U.S. at 835 n.4.

226. Penn Cent. Transp. Co., 438 U.S. at 132 ("[L]andmark laws are not like discriminatory,

or 'reverse spot,' zoning: that is, a land-use decision which arbitrarily singles out a particular parcel

for different, less favorable treatment than the neighboring ones.") (emphasis added). The opinion'

s

reference to discrimination through reverse-spot zoning suggests that diminution in value arguments

must be accompanied by an arbitrary unjustified decision or in other words, diminution in value

must present a substantive due process problem. Otherwise, diminution in value standing alone

with a regulation with a substantial relationship to a legitimate governmentpurpose that's part of

a comprehensive set of regulations will not constitute a taking.

227. Id. at 133; Hadacheck v. Sebastian, 239 U.S. 394, 409 (1915); Miller v. Hoeschler, 105

N.W. 790, 792 (Wis. 1905). Disparate severity of impact is not enough to establish singling out.



2009] REBUILDING THE PUBLIC-PRIVATE CITY 143

taken property as the entirely distinct property right, in the form of Penn

Central's air rights and the owner's expectations to have use of those property

rights for economic gain. The Court rejected this "conceptual severance" claim
that 100% of the air rights had been taken, articulating instead a "parcel as a
whole" rule:

"Taking" jurisprudence does not divide a single parcel into discrete

segments and attempt to determine whether rights in a particular segment

have been entirely abrogated. In deciding whether a particular

governmental action has effected a taking, this Court focuses rather both

on the character of the action and on the nature and extent of the

interference with rights in the parcel as a whole . . . .^^^

Takings doctrine, however, indirectly acknowledges certain property

expectations as a cognizable loss of a stick in the bundle ofproperty rights. First,

a claim of deprivation of a discrete property interest can escape the

unacceptability of being a conceptual severance claim when there are distinct
investment-backed expectations.^^^ Second, the Court acknowledged property

expectations when it supported the landmarks law by reasoning that the plaintiffs
were not harmed because the regulation did not interfere with the present uses;

they could continue to use the property as they were and earn a reasonable return

on their investment. According to the Court, this case was not even as

sympathetic as other cases in which the governmental acts interfered with the

present uses of the properties, and yet no taking was found.^^^ Because the law

does not interfere with what must be regarded as Penn Central's primary
expectation concerning the use of the parcel,^^^ then the claim must be rejected.

Of course, this reasoning ignores that Penn Central argued for a right to develop,
a right to create new value out of its property.

Also instructive of the takings principles important to the ad hoc analysis is

the imperfect, transferable development rights program, offered in the landmarks

law as some sort of offset or compensation for Penn Central.^^^ This reasoning
seems contradictory, particularly since the opinion rejected the argument that any

228. 438 U.S. at 130-31.

229. The reference to those expectations actually was mentioned in an attempt to distinguish

Pennsylvania Coal v. Mahon's acceptance of a conceptual severance claim by characterizing that

decision as being about "distinct investment-backed expectations" and by implication, not about

conceptual severance. Id. at 127 (citing Pa. Coal Co.v. Mahon, 260 U.S. 393, 415-16 (1922)

(Mahon is "the leading case for the proposition that a state statute that substantially furthers

important public policies may so frustrate distinct investment-backed expectations as to amount to

a 'taking.'").

230. 438 U.S. at 1 36 ("Unlike the governmental acts in Goldblatt, Miller, Causby, Griggs, and

Hadacheck, the New York City law does not interfere in any way with the present uses of the
Terminal .... [A]ppellants may continue to use the property precisely as it has been used for the

past 65 years: as a railroad terminal containing office space and concessions.").

231. Id.

232. Id. at 137.



144 INDIANA LAW REVIEW [Vol. 42:97

regulatory takings had occurred because diminution in value standing alone was
not enough of a basis for a takings claim. However, this prong of the opinion
actually relates more to the reasonableness of the program—that government had
sought to be somewhat accommodating and attempted to ameliorate, albeit
imperfectly, the impact of the regulation. Although not required to do so in order
to pass muster under a takings analysis, it bolstered the planning that went into

crafting the regulatory program—it had tried to be fair. In other words, where
the regulation is substantially related to the promotion of the general welfare^^^

and the present uses are not impaired, and a claim of negative economic impact

stands alone without substantive due process violations, there is no taking.
Primary expectations or investment-backed expectations are not impaired.^^"^

The overall lesson of Penn Central with respect to development
disagreements is to defer to the government's exercise of police power. The
decision announced a rule that was intended to definitively signal that takings
analysis was to be deferential to exercises of governmental regulatory power if
certain conditions existed to ensure that the decision was not arbitrary, and
exercises ofregulatory power are presumed to contain no substantive due process
violations where the challenged regulation was part of a well-considered plan.
This government-focused regulatory takings decision thus shows a presumption
of the validity of government regulation. Nevertheless, the no-takings calculus

also pays attention to attempts to be fair as part ofthe reasonableness calculation.

Concrete and demonstrable attempts to be fair by addressing legitimate property
expectations are part of the calculation of the reasonableness of a redevelopment

scheme.

D. Regulatory Takings and Development Disagreementsfrom the
Property-Owner's Perspective—Conceptual Severance Revisited

The flip side of the government-focused regulatory takings analysis is the
property rights-based analysis and a receptiveness to conceptual severance

—

focusing on whether an aspect or dimension of property rights has been
impaired.^^^ The conceptual severance approach is further divided into two
approaches. The first is the categorical approach under which a particular impact
on a property owner is always a taking. The second is to impose an intermediate,
heightened scrutiny standard in situations where the Court perceives inequality

of bargaining power.^^^

233. Id. at 127, 138.

234. The Court later deviated from this government-focused deferential, anti-conceptual

severance, severe impact combined with arbitrary government decisionmaking take on regulatory

takings in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982), which
resorted to a categorical rule based on a conceptual severance claim of physical occupation. This

claim was then not acknowledged to be a conceptual severance claim, but viewed as a physical

occupation claim. Id. at 427.

235. See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).

236. See, e.g., Dolan v. City ofTigard, 512 U.S. 374 (1994); Nollan v. Cal. Coastal Comm'n,



2009] REBUILDING THE PUBLIC-PRIVATE CITY 145

The cases illustrate that strong property owner protections are not easily
reconcilable with deference to government prerogatives or government

judgments. For example, the opinion in Kaiser v. Aetna,^^^ though contradictory

and more of an illustration of results-oriented jurisprudence, is instructive of the

relevant property rights interests when considering takings claims from the
property owner's perspective. These include the right to exclude, property

owners expectations, and detrimental reliance. Of these, the right to exclude and
the owner's substantial financial investment were the predominant concems.^^^

Any precedent for deference to government was eliminated by the government's
supposed complicity in the owner's investment. Granting a dredging permit,

which was an implied consent to the investment.^^^ Kaiser's overall lesson is that

government complicity in creating or allowing an investment equitably estops the

government from retreating from supporting that investment. In the

redevelopment and gentrification context, this suggests that the individuals

driven out were those encouraged to invest in the city by the City. Because they

held the city together a protectible property interest in remaining in the

conmiunity, seeing that investment and commitment come to fruition, or
continuing to enjoy that investment should be acknowledged.

7. Conceptual Severance and Investment Backed Expectations from the
Property Owner's Perspective.—Notwithstanding Penn Central's rejection of
conceptual severance, the Court in Lucas v. South Carolina Coastal

Commission^"^^ looked at the matter from the property owner's perspective. The
Court regarded the loss of even a strand in the bundle of property rights as very

important.^"^^ In particular, the right to decide to retain ownership is as

fundamental to property ownership as any other right.^"^^ The property owner was
prevented from developing two small parcels of land with attractive use value

and lucrative development potential as residential beachfront property.^"^^ The
case squarely confronted the question of what to do about the competing goals

of development and wanting to maximize financial investment for profit and the

483 U.S. 825 (1987).

237. 444 U.S. 164(1979).

238. Mat 174-75.
239. Though oriented to the interests of the property owner, the Kaiser majority opinion was

consistent with Penn Central, that there was no real balancing of the competing interests. No

deference could eliminate the problem that, in the majority's view, a compensable property interest

had been impaired. This is consistent with both the Loretto line of cases which are called physical

takings, as well as part of Penn Central by its emphasis on the economic impact; interference with

investment-backed expectations, and the character of the government regulation.

240. Lucas, 505 U.S. at 1003.

241. /J. at 1027.

242. /d at 1028-29.

243. In keeping with the view that our vision of property's value and the most important stick

in the bundle being the right to exclude, in the early nineteenth century, the beach was referred to

as a wasteland; its aesthetic use value was not fiilly appreciated by anyone at all. See Pierson v.

Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805).



146 INDIANA LAW REVIEW [Vol. 42:97

goal of environmental preservation. Though situated in the hardened framework
of property rights analysis, the underlying question was, what does fairness

dictate?

Lucas's inability to exploit the economic potential of the land by developing

his parcel was equated to the "essential right to exclude stick" in the bundle of
property rights. Thus, the Court found a balancing approach to the takings

question inappropriate because the severe impact on the property owner trumped
the governmental interest.^"^ Deference to governmental regulation "d[id] not

apply to the relatively rare situations where the government has deprived a

landowner of all economically beneficial uses."^"^^ Instead, categorical treatment

was necessary. Although it took much logical work to supportably reach this
conclusion,^"^^ the result was a categorical rule for takings where there was
elimination of value. It is difficult to imagine, however, what regulatory

circumstance would result in a hundred percent elimination of property value.^'*^
As in all regulatory takings cases, the real issue not addressed in Lucas is the

development disagreement. The whole doctrine of regulatory takings has been
raised around the question of whether the government can impose regulatory

harm on a property owner. Yet, the question is impossible to resolve sensibly
because the issue is framed in competing versions of the doctrine.^"^^ Once the
issue goes past physical appropriation, any takings analysis runs into the

overwhelming power and interest in governance contained in police power.
Property owners are supposed to protect their interests through the democratic

process. By declaring that certain property rights always trump government
regulation that is otherwise not corrupt or arbitrary or capricious,^"^^ regulatory

takings analysis in effect acknowledges the shortcomings of the local political

process. The Court in Lucas used property law to give property owners an "out"
from disagreements over development, thus, in effect, creating a "right to

development." Using property law to mediate with government on behalf of

property owners in this manner specifically fails to acknowledge the subjective,
gut-based, substantive decision made about what are fair property owner
expectations and what are fair, or unfair, government actions.

^^^

244. Interestingly, Lucas is really a temporary takings case. The Beachfront Management Act

was amended to allow for special permits in 1990, two years after the complained of 1988

amendments, yet the Court proceeded to decide the case because Lucas would be denied a remedy

for the two years during which he had been denied the ability to build. Thus, there was temporal

conceptual severance in this case. Lucas, 505 U.S. at 1012.

245. /^. at 1017.

246. Id. at 1022-23, 1025 n.l2, 1027, 1031.

247. See Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 321-22

(2002) (discussing the rareness of 100% elimination of value).

248. See, e.g., Lucas, 505 U.S. at 1003; Penn Cent. Transp. Co. v. City ofNew York, 438 U.S.
104(1978).

249. See, e.g.. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 754

n.l3(1999).

250. Even more so, beyond this lack of acknowledgment, there has been a decision to protect



2009] REBUILDING THE PUBLIC-PRIVATE CITY 147

Instead, the Lucas Court responded to the development versus preservation

dilemma by fashioning an unworkable categorical rule that total elimination of
value was a per se taking unless justified by common law understandings from
the nineteenth century. This is a significant example of a masked exercise of
substantive due process. The decision attempted to structure legal doctrine as a
bulwark against any justification for modem governmental decisionmaking that
might retard land development. The decision therefore embraced a right to
development and acknowledged it as part of the expectation of land ownership.

The increasing economic value of land, not for its productive features, such as
agriculture, but for its use features as a place of residence or commerce, raises

the question, what happens if land is no longer available under government

regulation for the desired use? In some ways, the Court' s approach is not without
precedent and makes perverse sense. As discussed above, the common law of
this country has traditionally promoted the free use and development of land.^^^

Today, it seems that the community's expectation of land has evolved such that

an expected right to development—regardless ofwhether it is in fact a right—has
been granted increasing recognition by the Supreme Court. Recognizing
community standards for this evolving economic expectation certainly has
implications for the urban side of eminent domain law. In particular, would a
categorical rule be called for in certain exigent circumstances when there is a
political process failure in the eminent domain context?

2. Inequality of Bargaining Power and Political Process Failure in the
Context ofDevelopment: Heightened Scrutiny and Expectation.—The Nollan
V. California Coastal Commission^^^ and Dolan v. City ofTigarcf^^ decisions are
regulatory takings cases that deal directly with development disputes between

property owners seeking to expand the development of their properties and the
difficulty of negotiating with government. In both cases, the right to cross

someone's land in return for the right to develop was subjected to heightened
scrutiny and held to a strict means-ends standard of fairness and appropriateness.

In both cases, the Court intervened and elevated the individual's right to be free

economically beneficial uses; while this sounds hard and fast, it is an arbitrary selection to the

benefit of the property owner. This is seemingly consistent with the eminent domain reliance on

fair market value to compensate owners even when there is significant personal loss, except that

concept is to the benefit of the government. See Lynda J. Oswald, Cornering the Quark:

Investment-Backed Expectations and Economically Viable Uses in Takings Analysis, 70 WASH. L.

Rev. 91, 123(1995).

251. See, e.g., Hadacheck v. Sebastian, 239 U.S. 394, 413-14 (1915) (no taking when

prohibited activity could be performed elsewhere). But see Lucas, 505 U.S. at 1059 (Blackmun,

J., dissenting) ("[Sjtate courts historically have been less likely to find that a government action

constitutes a taking when the affected land is undeveloped .... [T]he power of the legislature to

take unimproved land without proper compensation was [also] sanctioned by 'ancient rights and

principles.''') (emphasis added) (quoting Lindsay v. Comm'rs, 2 S.C.L. 38, 57 (S.C. Ct. App.

1796))) (emphasis added).

252. Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987).

253. Dolan v. City of Tigard, 512 U.S. 374 (1994).



148 INDIANA LAW REVIEW [Vol. 42:97

from the Government's strong-arming in negotiations to a constitutionally

protected property right. Both Nollan and Dolan were analyzed from the

property owner's perspective with no balancing of the competing interests.

The Nollans's desire to enlarge a tiny, dilapidated, single-story bungalow
along the California coast into a two-story, three-bedroom house with a two-car

garage was restricted by California's strict regulation of coastal development.
^^"^

The grant of the Nollans' application for a coastal development permit was
conditioned upon their provision of "lateral access to the public beaches in the

form of an easement across their property."^^^ They claimed that this condition
constituted a taking of their property,^^^ and the Court was receptive to their

claim.^^^ The Commission's requirement of an easement as a condition to
receiving the coastal permit meant that the substance of the permit requirement

compromised the right to exclude.^^^ Also, the manner of acquiring the easement

violated the Fourteenth Amendment by using an improper unilateral form of
bargaining.^^^

The Nollan opinion seems to have utilized a substantive due process analysis
whereby the Court's consideration of the existence of a taking was necessarily

informed by a disagreement with the nature of the underlying regulation.^^^ The
opinion begins with the observation: "We have long recognized that land-use
regulation does not effect a taking if it 'substantially advance[s] legitimate state

interests' and does not 'den[y] an owner economically viable use of his land.'"^^^

"[U]nless the permit condition serves the same governmental purpose as the

development ban, the building restriction is not a valid regulation of land use but

'an out and out plan of extortion. '"^^^ Consistent with the "substantially

advances" prong of the Agins v. Tiburon test^^^ (now repudiated in Lingle v.

Chevron^^^), the Court announced an "essential nexus" standard for such

254. Nollan, 483 U.S. at 827-29.

255. Id. at 829. "The Commission . . . had similarly conditioned 43 out of 60 coastal

development permits along the same tract of land." Id.

256. Id.

257. /J. at 836.

258. 5^^/^. at 831-32.

259. /^. at 832.

260. See id. at 838-39.

261. Id. at 834 (quoting Agins v. City of Tiburon, 447 U.S. 255, 260 (1980), abrogated by

Lingle v. Chevron U.S.A., Inc., 544 U.S. 529 (2005)). The difference in the formulation of the

Agins standard is striking. In Lucas, the Court used an "or" formulation which supported the

conclusion that diminution in value standing alone was enough for a regulatory takings. In this

case, the "and" standard is conveniently supportive of the means-end test formulated by the Court.

262. Id. at 837 (quoting J.E.D. Assoc, Inc. v. Atkinson, 432 A.2d 12, 14-15 (N.H. 1981)); see

also Dolan v. City ofTigard, 512 U.S. 374, 387 (1994) (further characterizing the permit condition

as "gimmickry").

263. Agins v. City of Tiburon, 447 U.S. 255, 260 (1980), abrogated by Lingle v. Chevron

U.S.A., Inc., 544 U.S. 528 (2005).

264. 544 U.S. 528 (2005).



2009] REBUILDING THE PUBLIC-PRIVATE CITY 149

conditions and found that this condition failed the test.^^^

Nollan appears to be primarily about the Supreme Court reacting protectively
to an inequality ofbargaining power between local government and citizens who
wish to develop. The Court sought to weigh in on behalf of the property
owner.^^^ This is colorfully illustrated by the majority opinion's use ofterms like

"extortion"^^^ and "leveraging of the police power."^^^ To extort is defined as "to
obtain from a person by force, intimidation or undue or illegal power."^^^ The
particular impact on the property owner, of being required to convey a property

interest like an easement as the condition for obtaining a permit to develop, was
deemed to present the "heightened risk that the purpose is avoidance of the
compensation requirement, rather than the stated police-power objective."^^^

Under the articulated standard in the case, the propriety of this decision could
only be reached by the Court's eschewing the deferential standard of the

"reasonable relationship test" and adopting a higher standard such as

"substantially advances a legitimate governmental interest."^^^ Thus, the

proposed bargain, impacting the right to exclude imposed by the government,

was, at best, suggestive of a substantive due process violation.

Requiring the government to provide a precise connection between the

increased impact of the proposed development and the permit condition makes
sense only in the abstract, removed from the actual context of governing. In
reality, the government is responsible for meeting multiple, often conflicting

public needs. Coastal protection perfectly reflects the tradeoffs between many
public needs.^^^ Because government has to accommodate many interests, and
has accommodated many interests in the past, the opinion does not explain why
government cannot juggle these many accommodations by offsetting the
management of one while obtaining a concession on the other.^^^ In other words,
if visual access is decreased, why can the government not compensate for that
decrease, or balance out that decrease by securing another concession that would
be otherwise beneficial to the public? Although beach access in no way
compensates for the loss of view, it shifts the public rights and public benefits in

265. A^o//a«, 483 U.S. at 837.

266. See id. at 839.

267. Id. at 837.

268. Id. at 837 n.5.

269. Webster' s Ninth New Collegiate Dictionary 440 ( 1 99 1 ).
270. A^o//<3«,483U.S. at841.

271. But see Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 532 (2005) (explicitly repudiating

the "substantially advances" heightened standard of review in regulatory takings cases). The

opinion states that the Court considers Nollan good law as an unconstitutional condition requiring

a person to give up a constitutional right in return for some government action. Id. at 546; see Mark

Fenster, Regulating Land Use in a Constitutional Shadow: The Institutional Contexts ofExactions,

58 Hastings L.J. 729, 730-31 (2007) (arguing that "exactions decisions sit uneasily alongside . .

. Lingle to make sense of its long, confusing line of takings decisions").

272. See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1009-10 (1992).

273. See Nolan, 483 U.S. at 825.



150 INDIANA LAW REVIEW [Vol. 42:97

a way that is beneficial to the public.^^"^ Narrowly viewing the issue as a loss of
a strand from the bundle of rights—the right to exclude—ignores this very
compelling context and allows property owners to narrowly conceive of and
enforce their property rights, regardless of public concessions that secure and

enhance these property rights.
^^^

Nollan involved homeowners who were opposed to sharing the beach with
the public and a Court that agreed they were right to object. The Court disagreed
that the government should be able to do anything short of a forced purchase to
impair that expectation of immunity from public access across their property,
even where economic injury does not exist.^^^ The Court considered it
unconscionable for government to use its regulatory might to allow strangers to

occupy one's land. How did an easement get equated with quartering troops on
one's land if the impact was minimal at best? The Court's willingness to
acknowledge impairment of the landowners' agency to exercise a right is

apparent. Also evident was a sense that fundamental fairness was violated
because the government always has more muscle to win. Thus, Nollan stands for
the principle that there is a fundamental right not to be strong-armed by
government because of the unequal bargaining power between citizen and
govemment.^^^ This is a neo-classic concern with the inequality of bargaining

274. Justice Brennan' s dissenting opinion points out the obvious reciprocity ofadvantage view

of this case:

[The] development obviously significantly increases the value of appellants' property;

appellants make no contention that this increase is offset by any diminution in value

.... Furthermore, appellants . . . benefit from the . . . permit condition program. They

are able to walk along the beach beyond the confines of their own property only

because the Conmiission has required deed restrictions as a condition of approving

other new beach developments.

Id. at 856 (Brennan, J., dissenting).

275. J. David Breemer, The Evolution of the "Essential Nexus": How State and Federal
Courts Have Applied Nollan and Dolan and Where They Should Gofrom Here, 59 WASH. & Lee
L. Rev. 373 (2002); Lee Ann Fennell, Hard Bargains and Real Steals: Land Use Exactions

Revisited, 86IowaL.R£V. 1 (2000); MarkFenster, Takings Formalism and Regulatory Formulas:

Exactions and the Consequences ofClarity, 92 Cal. L. Rev. 609 (2004); see also Carlson & Pollak,
supra note 16, at 1 15-16 (study indicating "'Nollan and Dolan penalize ad hoc decisions to impose

exactions . . . but may actually encourage the imposition of higher impact fees").

276. See Nollan, 483 U.S. at 857 (Brennan, J., dissenting) ("Ultimately, appellants' claim of

economic injury is flawed because it rests on the assumption of entitlement to the full value of their

new development. Appellants submitted a proposal for more intensive development of the coast,

which the Commission was under no obligation to approve, and now argue that a regulation

designed to ameliorate the impact of that development deprives them of the full value of their

improvements. Even if this novel claim were somehow cognizable, it is not significant. '[T]he

interest in anticipated gains has traditionally been viewed as less compelling than other

property-related interests.'") (quoting Andrus v. Allard, 444 U.S. 51, 66 (1979)).

277. The view that it is the impact on a few for the benefit of the many fails to explain the

outcome. It seems instead there is a sense of entitlement to have a beach house consistent with



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 5

1

power. The Court is in effect saying that imposing standards to make the
exercise of unequal power fair is important. These standards are usually read

into contracts between individuals, where one is poor, uneducated, and unaware

of his or her rights, or is desperate enough to waive fundamental rights and make

deals that are detrimental to his or her interests. Here, the citizens are affluent,

educated, and aware of their rights, and are arguably making a deal that benefits

their interests. Nevertheless, this bargaining inequality is inimical in the Court's

view and demands the Court's intervention.^^^

In Lingle v. Chevron,^^^ the Court used a challenge to a gas service station

regulation capping rents, which did not involve a regulatory taking, to clarify

regulatory takings doctrine and the appropriateness of substantive due process

reasoning. The Court repudiated any suggestion that substantive due process

analysis belonged in regulatory takings doctrine.^^^ The Court attributed the

source ofthe doctrinal confusion to btAgins v. City ofTiburon' s^^^ "substantially

advances" standard which used an impermissibly heightened means-ends test.^^^

Though Nollan (and Dolan) used the substantially advances test, the Court

identified a new source of precedent that supported those decisions. According
to the Court, these cases could survive decoupling from Agins's heightened

substantive standard by viewing them as drawing their rationale from another line

of doctrine known as "unconstitutional conditions."^^^ This ad hoc line of cases
prohibits government from conditioning receipt of some benefit upon the

surrender of a constitutional right. Curiously, the constitutional rights protected

in prior "unconstitutional conditions" cases involved civil rights like freedom of

speech and religion. Nollan and Dolan represent the first set of cases to equate

property rights with fundamental civil rights.
^^"^

Notwithstanding Lingle' s attempt to inoculate Nollan and Dolan from the

heightened means/end test, the Nollan essential nexus test, and the rough

proportionality standard, the opinions are clear in expressing a judicial

disagreement with the underlying reasons advanced for the exaction or condition

posed by the legislation. Thus, both Nollan and Dolan provide a detailed and

difficult analytic regime for municipalities to provide a factual basis for their

affluent expectations of privacy and exclusion of the public.

278. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 703-04

(1999) (upholding a $1.45 million jury verdict for landowners where they sought to develop an

ocean-front parcel, but were impeded by arbitrary delay and denial by local government).

279. 544 U.S. 528 (2005).

280. /J. at 545-48.

281. 447 U.S. 255 (1980), abrogated by Lingle, 544 U.S. 528.

282. See Jane B. Baron, Winding Toward the Heart ofthe Takings Muddle: Kelo, Lingle and

Public Discourse About Private Property, 34 FORDHAM Urb. L.J. 613, 637 (2007).

283. Lingle, 544 U.S. at 547-48.

284. See ROBERT B. STANDLER, DOCTRINE OF UNCONSTITUTIONAL CONDITIONS IN THE USA
3 (2005), available at http://www.rbs2.com/duc.pdf (summarizing the cases and articles about

unconstitutional conditions).



1 52 INDIANA LAW REVIEW [Vol. 42:97

legislative decisions.^^^ The Court's opinion provides a detailed analytic regime
for municipalities to prove the validity of their legislative decision.^^^

Dolan is a more sober and balanced opinion than Nollan. It is written from
both the government's and the property owner's perspectives because the case

had to venture where Nollan did not. The Dolan Court acknowledged the right
of the government to regulate and define the connection between the condition

and the government regulation, thus defining how far this exaction regulation
could go.^^^ The question turned upon whether the supporting "findings [were]
constitutionally sufficient to justify the conditions imposed by the city on
petitioner's building permit."^^^ After surveying various state standards, the

Court stated it was selecting the intermediate standard requiring a reasonable
relationship, which it translated to mean a standard of "rough proportionality."
"No precise mathematical calculation is required, but the city must make some
sort of individualized determination that the required dedication is related both

in nature and extent to the impact of the proposed development.
"^^^

The Court invalidated the conditions for failing the first prong of essential
nexus^^^ and failure of rough proportionality.^^ ^ Though this opinion was
arguably more balanced than Nollan, it suffers from the same substantive defect.
The Court was influenced by gut-felt fundamental fairness principles in
fashioning the unprecedented "rough proportionality" standard. Moreover, the

Court refused to "cut local government any slack," instead holding them to an
exacting and expensive standard of justifying government actions with very

precise studies individually tailored to the impacts ofindividual property owners.

Although such studies can only come at great cost, it is possible to find a
consultant to conduct studies to support one's actions. This requirement of

"more paper" signals that the Supreme Court was willing to intervene to equalize
the bargaining power between government and citizen by raising the costs of
justifying what were likely well-founded exercises of regulatory power in

285. See Dolan v. City of Tigard, 512 U.S. 374 (1994); Nollan v. Cal. Coastal Comm'n, 483

U.S. 825 (1987). But see generally D. Benjamin Barros, At Last, Some Clarity: The Potential

Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due

Process, 69 Alb. L. Rev. 343 (2005).

286. Dolan, 512 U.S. at 391, 398 (rough proportionality and individualized determination);

Nollan, 483 U.S. at 837 ("essential nexus").

287. Dolan, 512 U.S. at 388 ("[W]hether the degree of the exactions demanded by the city's

permit conditions bears the required relationship to the projected impact of petitioner's proposed

development." (citing Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 834 (1987))).

288. /J. at 389.

289. /J. at 391.

290. Id. at 394-95 ("We conclude that the findings upon which the city relies do not show the

required reasonable relationship between the floodplain easement and the petitioner' s proposed new

building.").

291

.

Id. at 395-96 ("No precise mathematical calculation is required, but the city must make

some effort to quantify its findings in support of the dedication for the pedestrian/bicycle pathway

beyond the conclusory statement that it could offset some of the traffic demand generated.").



2009] REBUILDING THE PUBLIC-PRIVATE CITY 153

furtherance of the pubhc welfare. The Dolan decision imposed an impediment

that could slow the government down and limit the scope of what it could
accomplish through exactions. Where a property owner substantially disagrees
with the exercise of a governmental regulatory power, Dolan tipped the balance

of power between government and citizen in favor of the citizen as property

owner.

The most striking aspect of the implicit role of unequal bargaining power in

the Supreme Court's property rights jurisprudence is that the property owners do

not fit the profile of people who are typically protected under the inequality of
bargaining power rationale. The owners are neither uneducated, disabled,

elderly, or impoverished. They are, in fact, the opposite—owners of lucrative
pieces of real estate who are able to reach the Supreme Court to vindicate rights
based on principle rather than on irreparable or severe harm.^^^ What about these
property owners triggers the inequality ofbargaining power scrutiny? It can only

be the view of the government as an overly powerful entity that poses threats to

property owners beyond the ability of any individual property owner to address

their complaints or concerns through the political process. Because the opinions

are silent about the need or ability of property owners to seek redress through the

political process, the Court then may be led to believe such processes to be
unavailing or too costly.^^^

In effect, the Nollan and Dolan cases evince a concern that property owners

who wish to develop have been singled out. While this singling-out is not of any
great economic detriment, it raises Fourteenth Amendment Due Process concerns
by interfering with the property owner's expectation to exploit the economic

potential of his or her property. The categorical rules signal that it is arbitrary

and capricious or unreasonable for the government to thwart the desire or

expectations of a property owner who seeks to develop, merely because the
owner is fortunate enough to own beachfront or waterfront property, as in Dolan.
Thus, the regulatory takings cases represent the landed privileged who should
essentially be immune from disadvantage because they own desirable land. The
privileges and benefits that attend to this form of property ownership are

particularly troublesome to the Court.^^"^ Apparently privileged property

ownership should be more protected from government interference or from the

needs of the public.

E. Implications ofAttempting to Split the Difference in Perspective

Between Government and Property Owner: Reigning in the

Categorical but Maintaining the Warning to Government

In Tahoe-Sierra, the Court returned to the government-focused analysis of

regulatory takings cases.^^^ The decision reflects the Court's struggle to mediate

292. See id. at 379; Nollan, 483 U.S. at 828-30.

293. See generally Dolan, 512 U.S. 374; Nollan, 483 U.S. 825.

294. See, e.g., Nollan, 483 U.S. at 831-32.

295. See Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002).



154 INDIANA LAW REVIEW [Vol. 42:97

a balance between the two approaches in simultaneous retreat from, but
acceptance of, the more property-based approach to regulatory takings. The
retreat results from recognition that the natural trajectory of the stronger
property-based takings decisions like Lucas^^^ and First English^'^^ presented

administrability problems. The Court's refusal to overrule any property-based
precedent signals that governments should take note and be careful in land use

regulation.

Tahoe-Sierra reflects the battle between Penn C^nfra/'s balancing approach
to takings and the combination of First English and Lucas gut-satisfying,

categorical, conceptual severance approach to takings.^^^ The Tahoe-Sierra
property owners were apparently powerless to affect a very complex and

technical planning and political process. In some ways, their only leverage was
to impose a financial penalty on the government for failing to devise a timely
plan.^^^ Thus, even if they did not have the political clout to move the process
along, this leverage provided at least a more consequential voice because it
exacted a financial penalty on the government for delaying the owners'

personally beneficial use (building on their lots and enjoying the lake for

themselves).^^^ Similarly, they could have financially benefited from developing

their lot and enjoying the lucrative advantage ofimproving the value of the parcel

and creating an economic opportunity for themselves.

The majority opinion explained that a temporary moratorium is neither a
taking nor not-a-taking. The answer would depend on the particular
circumstances of the case.^^^ The opinion then corralled the categorical rules
from Lucas?^^ Physical occupation cases are not precedent for evaluating a

claim of a regulatory taking.^^^ The Court seemed to imply that regulatory
takings do not therefore represent as great an affront to individual property rights.

While a categorical rule might be appropriate for a physical occupation, in the
regulatory taking context, the categorical rule will only apply when there has

296. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).

297. First English Evangelical Church v. County of Los Angeles, 482 U.S. 304 (1987).

298. See Tahoe-Sierra, 535 U.S. 302.

299. /^. at 310-12.

300. See id. Interestingly, this was one of the arguments advanced but never granted any

cognizance by the Court.

301. Mat 331.
302. The examples offered by the majority opinion illustrate that the physical part of takings

law does not make much sense because what is physical? Is the physicality the source of the

purported harm or is it the magnitude of the impact of the regulation that is the source of the harm?

See id. at 330 (explaining the Lucas rule based on "extraordinary circumstances") (citing Lucas v.

S.C. Coastal Council, 505 U.S. 1003, 1018 (1992)).

303. Id. at 322. Physical takings are still at the takings end ofthe continuum and categorically

require compensation. "When the government physically takes possession ofan interest in property

for some public purpose, it has a categorical duty to compensate the former owner regardless of

whether the interest that is taken constitutes the entire parcel or merely a part thereof." Id. (citation

omitted)



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 55

been permanent obliteration of the value of a fee simple estate. This must be an

obliteration of 100% of the value of the parcel; a mere 95% would not be enough
of a diminution to justify categorical treatment.^^"^ Instead, the operative default

rule for determining when a regulatory taking has occurred requires a fact-
specific inquiry.^^^ The matter turns on whether the issue presents a question of

whether there is an interest in protecting individual property owners from bearing

public burdens, "which in all fairness and justice should be borne by the public

as a whole."^^^ This statement brings us full circle to the purpose of the taking

inquiry—determining when it is unfair as a matter of property rights to single out
certain property owners from an Equal Protection perspective guided by a

substantive Due Process assessment offairness. The anti-subordination rationale
is clear; it looks to the impact of the deprivation as compared to others and

assesses its fairness.

Similar to Lingle's determination to rescue Nollan and Dolan, perhaps the

weakest aspect of Tahoe-Sierra is that it affirms the validity of the Lucas Court's

finding a permanent deprivation of all value when, in reality, Mr. Lucas did not

suffer a permanent deprivation of all value.^^^ The regulation was not permanent.

Without permanence, the permanent deprivation of value did not actually occur.

Yet the Lucas case precipitated a categorical rule stating that there was a

permanent deprivation.^^^ The petitioners' arguments in Titz/zo^-^/erra for similar

categorical treatment make sense as long as Lucas is retained as good law. Why
did Tahoe-Sierra decline to follow the absolutist language and reasoning of

Lucas and First English! The primary reason is that the rules announced,

notwithstanding their emotionally gratifying categorical protections from the

excess of government interference with private property rights, were

unadministrable. Regulatory takings cases are really about fairness rather than

any bedrock coherent right of property. Within the constraining rubric of

property rights, the taking principle admits of no limit—government regulation
necessarily diminishes the free use of property. While the reciprocity of

advantage rationale in Penn Central is appealing to some, to others that approach

to protection ofproperty rights is too diffuse and indirect. On the other hand, the
absolutist vision of regulatory takings admits of no limits, and any attempt to

signal limits results in rules that are difficult, if not impossible, to apply

consistently.

One might conclude that the Penn Central standard re-invoked in Tahoe-
Sierra means that local governments need not worry about regulatory takings

claims. Instead, notwithstanding Lucas's banishment to the margins of

regulatory takings jurisprudence, it is significant that Lucas was not overruled.^^^

304. See id. at 330 (citing Lucas, 505 U.S. at 1019 n. 8 (noting that the categorical rule does

not apply to diminutions in value of 95%)).

305. Id. at 332.

306. Id. at 321 (quoting Armstrong v. United States, 364 U.S. 40, 49 (I960)).

307. See Lucas, 505 U.S. at 1020 (discussing limits on Mr. Lucas's land).

308. See id. at ion.

309. The same can be said of Nollan' s and Dolan's similar, yet less convincing, banishment



156 INDIANA LAW REVIEW [Vol. 42:97

The Court backed away from the unadministrability of categorical rules, but the
cumulative effect of the past twenty years of regulatory takings jurisprudence

cautions local governments. The decision still serves the practical purpose of
signaling the theoretical limit to governmental action. It warns government that

regulations should not be permanent when they can be made temporary. While
this suggests that the government need only put an expiration or sunset date on

a regulation to remove it from Lmca^' s purview, it still lays out a theoretical limit
that puts government on notice of situations in which governmentaljustifications
will be irrelevant, average reciprocity of advantage arguments will be unavailing,

and the impact on the property owners will trump the public interest.

Also, the categorical rules still lurk, perhaps not to be reinstated in their full

form, but still threatening enough to be partially resurrected if the local
government's actions shock the conscience of the property-rights-minded

judge.^^^ Therefore, local governments are on notice to proceed carefully in
managing suburban development and should consider compensating in advance,
whenever possible, or providing a quid pro quo to forestall the next unpredictable
set of takings arguments.

ni. Critical Anti-Subordination Lessons for the
Well-Considered Plan: Toward a Meaningful Standard

Acknowledging the underlying reality of regulatory takings, anti-
subordination concerns serve two purposes. First, they focus attention on harms
that may not be directly cognizable under traditional Equal Protection or Due
Process doctrine. Second, and more importantly, they allow a move past the
strictures of property rights language typically used to challenge exercises of

eminent domain. This expands the eminent domain discussion to acknowledge
the complexity of interests at play in disagreements over development. The
context for redevelopment suggests that globalization is driving the subordination

inherent in redevelopment as well as simultaneously strengthening the need for

local economic development.^ ^^ As Margit Mayer observes, cities are trying to
remake themselves to keep up with international competition; the higher up they
are in the chain of global cities, the more imperative it is that they provide
advanced services and the more intense the restructuring of urban space.^'^
"Local political actors everywhere emphasize economic innovation, seek

to the margins of regulatory takings jurisprudence as mere land exactions that wreak

unconstitutional conditions. The banishment cannot negate the implied recognition of inequality

of bargaining power as a motivation for this doctrinal detour. Moreover, it fully supports the

Court's loud signal to local governments about a categorical definition of unfairness that they

should take care to avoid. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 385 n.6 (1994).

310. See, e.g., Lucas, 505 U.S. at 1014-16 (discussing the categorical rule of compensating

for regulatory takings).

311. See supra Part I.A-B.

312. Margit Mayer, Urban Social Movements in an Era of Globalisation, in URBAN

Movements in a Globausing World 141, 143 (Pierre Hamel et al. eds., 2000).



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 57

entrepreneurial culture, and implement labour market flexibility in order to

counter the crisis of Fordism and to meet intensified international competition.

Other policy areas are increasingly subordinated to these economic priorities.
"^^^

Thus, the globalization imperative is real. But this imperative also structures

redevelopment in a way that certain types of people who live in certain types of
places are left without a voice and without recourse in redevelopment. This

expanded vision of regulatory takings doctrine here invites us to see those

individuals, subordinated by redevelopment, as having a property-like interest in

not being denied their effective voice in the fate of their homes, small businesses,

and desire to live in their community. Regulatory takings doctrine illustrates that

the Court is willing to respond to a perceived subordination in the suburban

context The language of property rights is individualistic, categorical,

inadequate to the task of community, and ambiguous about the rights and

interests harmed by redevelopment. A new conception of the harms and interests
at stake is necessary to acknowledge how community interests should be
considered. Once we drop the blinders obscuring property rights, it will be
possible to see how regulatory takings anti-subordination underpinnings
recognize that property is constitutive of identity and that local governments are

attempting to create a new identity for their cities.^ ^"^ The categorical approach
of declaring some takings invalid because they involve "economic development"

while retaining the blight exception would still leave the very same

neighborhoods subordinated by redevelopment disproportionately affected.

These neighborhoods would continue to be burdened by a privatized public

decision-making process that is properly characterized as a political process

failure.

Land use and eminent domain doctrine invests local government with the

power to determine or resolve the outcomes of these conflicting interests by

investing government with the sole power or title of community. This sovereign

view of government looks only to the formal powers of government and the

content of these laws, but barely looks to the execution of these powers.^ ^^ One
approach might be to suggest local community institutions that would better

represent community interests in the redevelopment decision-making process.

The difficulty is that there is no unitary community; instead, there are cleavages

in interests that lead to conflict when brought together.^ ^^ Forming new local
institutions is not the answer because this only results in more fragmentation.

According to Crowley, "[P]luralists tend to overlook the structural imbalance in

organizational capacity between elites who set agendas and other stakeholders

313. Id. (citing POST FORDISM: A READER (Ash Amin ed., 1994)).
314. See generally E\\z2ibQi\\B\diCkmdiX, Appropriating "the Commons": The Tragedy of

Property Rights Discourse, in THE POLITICS OF PUBLIC SPACE 49 (Setha Low & Neil Smith eds.,
2006).

315. But see Village of Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000) (per curiam)

(permitting a plaintiff "class ofone" to bring an equal protection claim against the village in regards

to an easement the City demanded from the plaintiff).

316. Crowley, supra note 183, at 18-19.



158 INDIANA LAW REVIEW [Vol. 42:97

wishing to challenge those agendas."^ ^^ Thus, Crowley recommends
"[c]ontentious collective action [a]s an alternative mode ofparticipation for areas
lacking regular access to government officials."^^^ It is helpful, then, to focus on

two structural variables: 1 ) the "structure of political opportunities"^'^ (the threat
of disruption), and 2) "mobilizing structures."^^^ These suggestions refer to both

material, as well as social and structural, resources. Crowley also notes that
"[n]ational and local federated organizations have been decisive in the outcomes

of contention because of their independence from" what has been referred to as
the pro-growth coalition.^^' "Community organizations that depend heavily upon
urban growth coalitions for operating resources are not likely to take the lead in

challenging unwanted growth and redevelopment agendas because they might

risk alienating their supporters and losing access to valuable resources."^'^

Another key issue facing community institutions is the problem of
informality in the redevelopment process. So many aspects of transactions are
negotiated behind closed doors and are based on interpersonal relations. As
Patience Crowder observes, the need for informality in deal-making is in
potentially irresolvable tension with the public's need for transparency and

information.^^^ This reinforces the reality that there is a political process failure

in redevelopment. The lesson of critical race theory is that the Court must gently
steer this political process by sending a substantive message of fairness and

reasonableness countering subordination in redevelopment. This is accomplished

by establishing substantive standards of inclusion that cities must adhere to in
legislating and executing redevelopment projects.

In certain respects, the Court began to make this "political" intervention in
eminent domain doctrine by conditioning the validity of the exercise of eminent
domain on a well-considered development plan. With the well-considered plan
offered as safeguard, it only makes sense to define standards for what is "well-
considered." This is similar to the results of the means-ends connections

317. /J. at 12.

318. Mat 17.
319. Id. at 20 (quoting Peter K. Eisenger, The Conditions ofProtest Behavior in American

Cities, 67 Am. Pol. Sci. Rev. 1 1-25 (1973)).

320. See Doug McAdam et al.. Introduction, in Comparative Perspectives on Social
Movements 2-4 (McAdam et al. eds., 1996).

321. Crowley, supra note 183, at 22.

322. Id. Crowley elaborates on "mobilizing structures" noting.

The phrase "mobilizing structures" refers to resources that challengers can access and

convert into vehicles for mounting and sustaining collective actions. Examples . . .

include money, communications media, and meeting places, but also social structures

such as family units, friendship networks, voluntary groups, work units, businesses,

professional organizations, and government agencies that can facilitate resource

mobilization.

Id.

323. See Crowder, supra note 1 82, at 658 ("Informality in redevelopment clouds transparency

and prevents the achievement of [the] public policy [of getting information to the public].").



2009] REBUILDING THE PUBLIC-PRIVATE CITY 159

required in Nollan and Dolan\ the connection between a regulation's means and

ends must now be justified with expert studies to provide factual support for the
regulation. In the context of the "well-considered" plan, however, instead of

using the means-ends match standard, the Court should actually focus on defining

the "ends." Here, "well-considered" should be backed by bringing to the table

the stakeholders and visionaries of urban living. We are facing enormous
decisions about the future of our cities, and cities are unduly influenced by

upscale private structural pressures ofglobalization, narrow-mindedness, copycat

approaches, and investment pressures for quick returns. Ratifying plans created

under this globalized context as "well-considered" without defining standards

results in a political choice that favors the status quo. It also ratifies the worst of

what is seriously wrong with current local economic development practices.
The difficult issue is that local governments seem to need no prompting to

seek out informal relations with business elites. Thus, how can we systematically
encourage local government to reach out to others in the community? What legal
carrots-and-sticks can one provide to make it in their interest to seek out
community? A starting point is to define substantive anti-subordination
standards for the "well-considered" plan. The plans underlying eminent domain
can reflect gut-felt fairness principles of inclusion and responsiveness to

community perspectives. More specifically, this will require participatory
institutional structures that provide training and resources to enable citizen

participation in plan formulation.
^^"^

This lengthy discussion on regulatory takings suggests an argument for a

heightened standard of review. But actually, as much I would like to develop
such an argument, I have not seen, nor have I been able to come up with, a
principled basis upon which to draw the line between proper and improper

purposes. Proponents of a closer means-ends match usually throw a doctrinal

wrench in the development process that may not be proportionate to the
particular harm or impact of the redevelopment.^^^ The convergence of critical
race theory and regulatory takings anti-subordination concerns looks to the

context of a government decision and acknowledges the defects in the political

process that hamper individual property owners or residents of certain types of

324. See generally JAMES L. Creighton, THE PUBLIC PARTICIPATION HANDBOOK: Making

Better Decisions through Citizen Involvement (2005). Creighton notes, "This book shows

how to design and conduct a public participation from beginning to end." Id. at 5. For additional

resources on citizen participation, see HENRY Sanoff, COMMUNITY PARTICIPATION METHODS IN

DesignANDPlanning 6 (2000) (describing Nos Quedamos involvement ofimpoverished residents

in urban renewal at Melrose Commons); Emil E. Malizia, Structuring Urban Redevelopment

Projects: Moving Participants up the Learning Curve, 25 J. RealEst. Res. 463, 473-76 (2003)

(providing ideas for attempting to communicate lenders' expectations to community).

325. See, £.g., Nicole Stelle Gamett, The Public-Use Question as a Takings Problem, 71 GEO.

Wash. L. Rev. 934, 969 (2003) (arguing for a reasonable necessity standard of review for the

public-use clause to demand factual justification for land transfers and require the government to

justify how it chooses to acquire property).



160 INDIANA LAW REVIEW [Vol. 42:97

communities from protecting their interests.^^^ What regulatory takings doctrine
provides is the example of specific expressions ofjudicial guidance on a roadmap

of concerns that local government must consider. Critical race theory provides

an explicit, unapologetic acknowledgment that these disagreements about

development are political. Thus, perhaps the fix to what is so unsatisfying about

the Kelo majority opinion comes from focusing on the politics of the

redevelopment process and providing a hopefully ameliorating antidote to the

current state of political process failure.^^^ As John Hart Ely observes:

The Constitution has instead proceeded from the quite sensible

assumption that an effective majority will not inordinately threaten its

own rights, and has sought to assure that such a majority not
systematically treat others less well than it treats itself—by structuring
decision processes at all levels to try to ensure, first, that everyone's

interests will be . . . represented ... at the point of substantive decision,

and second, that the . . . application will not be manipulated so as to

reintroduce in practice the sort of discrimination that is impermissible in

theory.^^^

326. The divergences are also potentially, although not necessarily, quite clear. For example,

it might seem that regulatory takings is solely concerned with property owners. Justice Thomas's

unique expression ofconcern for the systematic disadvantages to certain communities, for instance,

arises because he can see disadvantage (racial and class) as it affects the property owner. See supra

notes 90-94 and accompanying text. Yet, other types of residents, namely tenants, can also be

included under the regulatory takings umbrella because strong protections of property rights

necessarily involve "conceptual severance." See Margaret Jane Radin, The Liberal Conception of

Property: Cross-Currents in the Jurisprudence ofTakings, 88 COLUM. L. REV. 1667, 1676 (1988)

(discussing conceptual severance). Tenants are the owners of strands of property rights. Thus,

tenants should be protectible under the regulatory takings property rights umbrella as well.

327. For other approaches to the role of the political process in redevelopment, see Brief for

the American Planning Association et al. as Amici Curiae Supporting Respondents, Kelo v. City

ofNew London, 545 U.S. 469 (2005) (No. 04-108), 2005 WL 166929, at *25-26 ("Another source
of protection for all property owners is to assure, to the extent possible, that eminent domain is

exercised only in conjunction with a process of land use planning that includes broad public

participation and a careful consideration of alternatives to eminent domain."); Paul Boudreaux,

Eminent Domain, Property Rights, and the Solution ofRepresentation Reinforcement, 83 Denv.

U. L. Rev. 1, 1 (2005) (proposing "eminent domain be constitutionally impermissible when it is

both used to take land destined for private hands and disproportionately hurts the poor or politically

disadvantaged"); Elisabeth Sperow, The Kelo Legacy: Political Accountability, Not Legislation,

Is the Cure, 38 McGeorge L. Rev. 405, 426-27 (2007) (discussing participation in the political

process and negotiation with politicians as the appropriate response to Kelo); see generally Joseph

William Singer, The Ownership Society and Takings ofProperty: Castles, Investments, and Just

Obligations, 30 Harv. Envtl. L. Rev. 309 (2006) (advocating a citizenship model of property

rights to create a fairness-based framework for analyzing regulatory takings).

328. John Hart Ely, Democracy AND Distrust: A Theory of Judicial Review 100-01

(1980).



2009] REBUILDING THE PUBLIC-PRIVATE CITY 161

That political process is currently subsumed within the carefully considered
redevelopment plan that Kelo says will ratify an exercise of eminent domain.^^^

As currently formulated, the Court affirmed a top-down planning process
developed by the state.^^° The reality is that within the field of urban planning,
a plan has legitimacy not because of authority granted from the state and the

convening or several meetings to merely inform residents.^^^ For example, an

international organization, the International Association for Public Participation

(IAP2), has developed core values for public participation.
^^^

The planning process involves certain inclusive procedural components. It
is supposed to directly involve residents in articulating the needs for the area and

envisioning future development, thereby receiving an opportunity to ensure that

their needs are met by the resulting development.^^^ Concededly, this last point
means both a procedural component to planning as well as a substantive

329. See Kelo v. City of New London, 545 U.S. 469, 478 (2005).
330. See generally id.

331. See genemllyKicoX^SiQWt Gdimtii, Planning as Public Use, 34ECOLOGYL.Q. 443,461-

68 (2007) (arguing that land use planning is inadequate to limit pretextual takings or lead to more

successful projects).

332. The IAP2 website states:

As an international leader in public participation, IAP2 has developed the "IAP2 Core

Values for Public Participation" for use in the development and implementation of

public participation processes. These core values were developed over a two-year

period with broad international input to identify those aspects of public participation

which cross national, cultural, and religious boundaries. The purpose of these core

values is to help make better decisions which reflect the interests and concerns of

potentially affected people and entities.

International Association for Public Participation, IAP2 Core Values, http://www.iap2.org/

displaycommon.cfm?an=4 (last visited Mar. 12, 2009).

333. See id. "IAP2 Core Values for the Practice of Public Participation:

1

.

Public participation is based on the belief that those who are affected by a decision

have a right to be involved in the decision-making process.

2. Public participation includes the promise that the public's contribution will

influence the decision.

3. Public participation promotes sustainable decisions by recognizing and

communicating the needs and interests of all participants, including decision-

makers.

4. Public participation seeks out and facilitates the involvement of those potentially

affected by or interested in a decision.

5. Public participation seeks input from participants in designing how they

participate.

6. Public participation provides participants with the information they need to

participate in a meaningful way.

7. Public participation communicates to participants how their input affected the

decision.



162 INDIANA LAW REVIEW [Vol. 42:97

component; it suggests that a plan involving the residents that is carefully

considered will yield a substantive result that ensures that their needs are

considered in the plan. Thus, it is not possible to avoid some normative view of
the proper substance of a redevelopment plan when competing needs are so great.
On the other hand, the appeal of strengthening the carefully considered plan is
limited—the disadvantages to existing residents in the political process are still
present. Yet, Professor Ann Carlson and Daniel Pollak's study has shown in the
regulatory takings setting that the doctrine, even with its pro-government

deferential standard, has impacted the way that local government officials make
land use decisions.^^"^ Similarly, it would probably take very little for the

Supreme Court to impact eminent domain redevelopment decisionmaking by
clarifying the standard for what a carefully considered plan by rights should look

like.

The state of the planning literature today suggests that planning both is and
is not the answer.^^^ The planning field is in flux. It has promised too much, and

its practitioners and theorists are never politically placed to have a very

significant role in actual planning. They have been either brought in as
procedural facilitators or advocates, but not as part of imagining what will

actually take place. Thus, just as the problem of redevelopment is complex, the

solutions are equally complex. The role of the Supreme Court is to remedy the
political process failure and not place a finger on the balance of a political

process that is unduly weighted in favor of the types of redevelopment we see.^^^
We cannot assume that in this arena, however, the States are making the best

decisions. The disaster of urban renewal proves as much. In addition, the
Supreme Court cannot substitute its judgment for what is a good project. To the
extent, however, that the Court conditions eminent domain on a carefully

considered plan—the plan that is truly well-considered in fact, not just
theory—can be easily infused with some broad but substantive teeth.
Specifically, the Court could require that the plan endorse actual planning and

inclusion in the process and the substance of the outcome. This point echoes the

Kelo dissents trying to use public ownership or public access as the measure;

instead, I focus on process because it allows greater flexibility and more directly

acknowledges its political nature. The lessons of regulatory takings doctrine are
that the Supreme Court should intervene in defining standards where there is

political process failure due to unequal bargaining power. Conceptual severance

334. See Carlson & Pollak, supra note 16, at 116-17.
335. See Robert Fishman, The Fifth Migration, 71 J. Am. Plan. Ass'n, 357, 358 (2005)

(arguing that the United States is in the early stages of another great "migration" of population

identified by Lewis Mumford in a classic 1925 article as largely shaping America).

336. Peter Marcuse, The Politics ofPublic Space; The Right to the City: Social Justice and

the Fightfor Public Space, 73.1 J. Am. PLANNING Ass'n 125 (2007) (reviewing both THE POLITICS

OF Public Space (Setha Low & Neil Smith eds., 2006) and Don Mitchell, The Right to the
City: Social Justice and the Fight for Public Space (2003)) ("Public space can be used to

limit democracy as well as further it. And Harvey links the use of public space to discussions of

the right to the city.").



2009] REBUILDING THE PUBLIC-PRIVATE CITY 1 63

allows the cognizance of different types of property owners—residential and
commercial, owners and renters.

Conclusion

Not all property owners are wealthy and politically powerful. Not all of the
poor are without political power or social capital. Nevertheless, it is the case that
in the redevelopment context, the nature of the development imperatives,

described at length above, work to the exclusion of the existing residents through
privatized decision-making processes that ironically are used to justify the

"publicness" of the redevelopment plan. The Supreme Court's decision in Kelo
is understandable for its reluctance to intervene in legislative decisionmaking

about valid and invalid purposes. The decision has the inadvertent effect,
however, of placing a hand on the balance of urban redevelopment, to the
unacknowledged detriment of residents, property owners, and small business
people. In light of the ever-increasing imperatives towards economic
development from globalization—with cities viewing their interests as
consistently aligned with national developers, corporations, and retailers—the
consistent winners and losers in that redevelopment game should not be ignored.
We cannot presume that because development is state-sponsored the interests of
the public or ofthe residents ofthe proposed redevelopment will be appropriately

considered. Both regulatory takings and critical race theory provide the language

and the logic of anti-subordination provides a way to acknowledge the
subordination. The Court has a responsibility to ensure that the eminent domain
doctrine encourages a meaningful process and substantive standards that secures
the interests of all who are present and subjected to a proposed redevelopment
scheme.