Can Use of Eminent Domain Prevent Construction of a Mosque? By Gideon Kanner

New York is all atwitter again over the use of eminent domain, complete with a front-page article in The New York Times ("Debate Heating Up on Plans For Mosque Near Ground Zero," July 31, 2010). A Muslim group wants to put up a large mosque overlooking the site of the Sept. 11 atrocity, and many people in and out of New York perceive that as a triumphalist Muslim effort to taunt the victims of the attack on the Twin Towers. So they, including the Republican New York gubernatorial candidate, demand that the government take the site of the proposed mosque by eminent domain for a memorial to the Sept. 11 victims. But the Muslims argue that this would violate their freedom of religion. Whatever the politics of it all, they face an uphill fight on the law. Tempting though it may be at times, you don't get to examine the subjective motivation of legislators because, as the court put it in King City v. Commercial Bank of Central California, 131 Cal.App.4th 913, 943 (2005), judicial examinations of undisclosed mental processes of legislators would grossly overstep the constitutional bounds of the judiciary. What that means is that you don't get to argue in court over the subjective motivation of decisions to take private property for public use. If the stated use is public, you are confined to examining whether the condemnor is guilty of "gross abuse of discretion" or bribery in determining public necessity for the taking. And even that limited extent of judicial review has been available only since 1976 when the Legislature adopted the current eminent domain law. The Illinois Supreme Court put it concisely: "[I]n a condemnation action the purpose for which the power of eminent domain is exercised may be questioned, but 'the motives that may have actuated those in authority are not subject to judicial investigation.'"Ligare v. City of Chicago, 174 N.E.2d 934. How bad can it get? Pretty bad. The best known and probably the worst case of this genre was Rosenthal & Rosenthal v. N.Y. State Urban Development Corp., 605 F.Supp. 612 (1985), affirmed. 771 F.2d 44 (2d Cir. 1985). There, the property owners charged that the boundaries of the Times Square redevelopment project had been corruptly drawn to benefit the Mayor's allies at the expense of the plaintiffs whose unblighted land would be taken and transferred to the aforementioned friends for their financial gain. But that did not bother the court in the least. As the district judge explained, even if the city officials' motivation was illegal, as far as the U.S. Constitution was concerned, their illicit motives did not change the "public use" character of the taking. Redevelopment, said the court, is a "public use," and what motivates the takers in pursuing it, does not implicate federal constitutional concerns. The U.S. Court of Appeals affirmed, without mentioning any of the unpalatable factual allegations in its opinion. Another infamous case of this type was the Deerfield Park controversy in Illinois where the court was unperturbed by the charge that the taking of the subject property for a park, was actually intended to frustrate the construction of a racially integrated housing project. Their Lordships agreed with the district in a perfunctory opinion holding that if the district said that it needed parks, that was that. Deerfield Park District v. Progress Dev. Corp., 186 N.E.2d 360 (Ill.App. 1962). California law is no better. In Capron v. State, 247 Cal.App.2d 212 (1966) the state successfully argued that a condemnor's resort to intrinsic fraud in taking property - taking it for ostensibly one purpose, while intending to devote it to another - does not invalidate the taking. Indeed, until 1976, when the Legislature enacted the current eminent domain law, it was a black-letter California rule (laid down in People v. Chevalier, 52 Cal.2d 299 (1959)), that a condemnation resolution finding necessity for a taking is not justiciable at all, not even where it is procured by fraud, bad faith or abuse of discretion. All of which is largely academic because it has always been California law that where a condemning agency takes or purchases private property for an ostensibly public use, but instead - surprise, surprise! - devotes it to another use, no use, or even sells it to a private party at a profit, that does not give the property's former owners any right to relief. See Beistline v. San Diego, 256 F.2d 421 (9th Cir. 1958). The best known local case of that type was the condemnation of Chavez Ravine for public housing. But as you no doubt know, no public housing was built there, and the land was later conveyed to the Brooklyn Dodgers to induce them to move to Los Angeles. See Arechiga v. Housing Authority, 183 Cal.App.2d 835 (1960). (For a collection and discussion of other such cases, see my article, "We Don't Have to Follow Any Stinkin' Planning - Sorry About that, Justice Stevens," 39 Urban Lawyer 529 (2007)). Meanwhile, back in New York the political scene and the blogosphere are bubbling over the perceived affront to the memory of the 9/11 victims, or, if you are on the other side of this issue, to the sensibilities of the Muslim faith. But the problem is that decisions to condemn are a part of the political process, and in the Empire State, after the recent Court of Appeals decision in Goldstein v. N.Y. State Urban Dev. Corp., 921 N.E.2d 164 (N.Y. 2009), it is the condemnor, not the courts, who gets to say what is public use. So a taking for a public memorial to the Sept. 11 victims should be a piece of cake. But then again, New York is the capital of political correctness, so who knows what those folks will actually do? Gideon Kanner is professor emeritus at Loyola Law School, and of counsel to Manatt, Phelps & Phillips.

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