Check out this language from a recent decision by the U.S. District Court for the District of D.C.:
The CityCenterDC development may be a laudable and exciting public-private partnership, and it may entail a more comprehensive level of urban planning and cooperation than the ordinary project, but the exercise will result in the creation of an enclave of private facilities. What is being constructed will be no more for the use and benefit of the population of the District than any other condominium or hotel: members of the general public will be welcome to enjoy the surrounding sidewalks, and possibly the lobby, and they can spend their dollars in the nearby shops and restaurants, but at the end of the day, they will not be permitted to go upstairs. CityCenterDC is not a public work of the District of Columbia, and the ARB’s decision to the contrary cannot be sustained.
District of Columbia v. Dep’t of Labor, No. 13-0730 (D. D.C. Mar. 31, 2014), slip op. at 4.
Now before you get too excited, this is not an eminent domain case under the Fifth Amendment, but rather a case under a federal statute called the Davis-Bacon Act, which requires contractors to pay the prevailing labor rates for “public works” projects receiving significant federal funding.
You don’t need to read the entire opinion for the details, but be sure to check out these passages, which should be familiar to condemnation lawyers who deal with public use questions:
At bottom, there are two signature elements of a public works project: public dollars going into the project, and a public facility coming out of the project. CityCenterDC has neither. It is being privately financed by for-profit entities, and it will result in the creation of condominiums, apartments, office space, retail space, and a hotel that will be privately owned and operated. The fact that the project is expected to give rise to incidental public benefits – such as employment opportunities, increased tax revenue, and even a certain amount of open space – does not transform it into a public work; these are the goals of every urban development project. And the fact that the District has imposed certain requirements – even some at the level of particularity of the width of the sidewalks – does not alter the essence of the finished product. The ARB’s reliance on these details ignores the big picture: that the project is not being built by the government, for the government, or for the people the government represents.
Slip op. at 3-4. So what’s all this about courts not being able to tell when a proposal is public or private for purposes of the Takings Clause?
And here’s a passage that somewhat mirrors Justice Thomas’ dissent in Kelo, which argued for a straightforward application of “public use” in eminent domain:
Not long after the passage of the DBA, the Supreme Court emphasized that the term “public work” in a similar depression-era statute, the Miller Act, was meant to convey a concept that is “not technical but plain and specific.” United States v. Irwin, 316 U.S. 23, 30 (1942) (holding that the Howard University library, the construction of which was funded by Congress, constituted a “public work” under the Miller Act). Similarly, the Sixth Circuit held at the time that the definition of “public work” under the Heard Act, the predecessor of the Miller Act, was “without technical meaning and . . . to be understood in its plain, obvious and rational sense.” Peterson v. United States, 119 F.2d 145, 147 (6th Cir. 1941).
Slip op. at 17 (footnote omitted). Speaking of Kelo:
In the Court’s view, the ARB’s ruling fails at the first step of the Chevron analysis because the plain and obvious meaning of the statutory phrase “public buildings and public works” does not encompass a boutique hotel, a private office building, a condominium, or an apartment building, even an apartment building that reserves units to be rented – by private landlords to private tenants – at more affordable rates. The operative agreements in this case simply are not contracts for the construction of “public buildings or public works of” the District of Columbia, and therefore, the Davis-Bacon Act does not apply.
Slip op. at 18.
There’s more, but you get our drift.
Memorandum Opinion, District of Columbia v. Dep’t of Labor, No. 13-0730 (D. D.C. Mar. 31, 2014)