Economics of Public Use

Abstract

The general rule, to which the public use limitation provides an exception, is that a government taking may proceed so long as a citizen possesses an adequate remedy for ex post compensation.See, e.g., Regional Rail Reorganization Act Cases, 419 U.S. 102, 124-25 (1974).The other major exception is where the taking is without statutory authorization.See Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1510-11 (D.C.Cir.1984) (en banc), vacated on other grounds, 471 U.S. 1113 (1985).3 410 Mich.616, 304 N.W.2d 455 (1981).4 Although the projected cost of the condemnation to Detroit exceeded $200 million, GM subsequently purchased the property from the city for slightly more than $8 million.Id. at 656, 304 N.W.2d at 469 (Ryan, J., dissenting).CORNELL LA W REVIEW ration caused by a declining industrial and population base.5 The Poletown Neighborhood Council, representing approximately 3,400 area residents whose homes, shops, and churches were to be bulldozed to make way for the plant, opposed the project, claiming it did not satisfy the public use requirement.Over two vigorous dissents, 6 the Michigan Supreme Court held the proposed taking a legitimate public use.The second case, City of Oakland v. Oakland Raiders, 7 sustained an even more unconventional exercise of eminent domain.The Oakland Raiders professional football team, after failing to renew its stadium lease with the city of Oakland, announced that it intended to move to Los Angeles.The city responded by seeking to condemn the intangible contractual rights associated with the Raiders' franchise, including player contracts.The city apparently contemplated operating the team for a brief period while seeking a private owner willing to keep the team in Oakland.Although not deciding conclusively that the proposed taking served a public use, the California Supreme Court held that neither the plan's exotic object-the intangible contractual rights of a professional sports team-nor the possibility of a resale to a private party precluded an exercise of eminent domain.8 Finally, Hawaii Housing Authority v. Midkif 9 is probably the most important of the three cases, because it is the United States Supreme Court's first pronouncement on the meaning of "public 5 Id. at 650-51, 304 N.W.2d at 467.Note, however, that the cities of Detroit and Hamtramck apparently granted GM a 12 year tax abatement.Id. at 657, 304 N.W.2d at 470.This abatement undercuts the argument for preservation of the tax base.6 Judge Ryan wrote in dissent: "With this case the Court has subordinated a constitutional right to private corporate interests.As demolition of existing structures on the future plant site goes forward, the best that can be hoped for, jurisprudentially, is that the precedential value of this case will be lost in the accumulating rubble."Id. at 684, 304 N.W.2d at 482. 7 32 Cal.3d 60, 646 P.2d 835, 183 Cal.Rptr.673 (1982).8 The court remanded the case for a full evidentiary hearing on the public use question.The trial court subsequently dismissed the condemnation action on other grounds, failing to reach the public use issue.The court of appeal in turn reversed this decision and remanded the case for further hearings on several issues, including whether the taking served a public use.City of Oakland v. Superior Court, 150 Cal.App.3d 267, 197 Cal.Rptr.729 (1983).After more proceedings, the court of appeal ultimately held the proposed taking violated the commerce clause.City of Oakland v. Oakland Raiders, 174 Cal.App.3d 414, 220 Cal.Rptr.153 (1985), cert.denied, 106 S. Ct. 3300 (1986).As of this writing, the Raiders are still playing in Los Angeles.In a similar action, the city of Baltimore unsuccessfully sought to condemn its NFL franchise, the Colts, after the team slipped out of town under cover of darkness and headed for Indianapolis.See Indianapolis Colts v. Mayor & City Council of Baltimore, 741 F.2d 954 (7th Cir.1984) (dismissing interpleader action), cert.denied, 470 U.S. 1052 (1985); Mayor & City Council of Baltimore v. Baltimore Football Club Inc., 624 F. Supp.278 (D.Md.1985) (as amended 1986) (finding no right under Maryland law to condemn Colts).9 467 U.S. 229 (1984).

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