Here's the Brief in Opposition which responds to the cert petition in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012).
In that case, an Agana, Guam property owner is alleging that a taking of his residential property so that his neighbor (the former mayor of Agana) could have a driveway for his lot, violated the Public Use Clause. Of course, the taking was not justified by private necessity but as part of the "Agana Plan," an economic development plan adopted following World War II to reconfigure irregular lot lines in the city. The Guam trial court invalidated the taking, but the Guam Supreme Court unanimously reversed, holding that under Kelo v. City of New London, 545 U.S. 469 (2005), the taking was for a public use.
Disclosure: we represent the Owners' Counsel of America, which has joined an amici brief supporting the property owner/petitioner in this case.
The BIO argues that the taking was accomplished pursuant to the Agana Plan, and therefore served a valid public purpose because it remedied the problem of oddly-shaped lots in Agana:
The Agana Plan was adopted shortly after the devastation of Agana during World War II to promote the economic development of Guam’s capital city and to establish "order out of chaos" by straightening the border lines and uniting fractional lots in order to form geometric, orderly blocks. In holding that the taking in this case was for a public purpose, the Court rejected the trial court’s finding that multiple, contemporaneous takings were required to establish a valid economic development plan, and thus rejected the trial court’s isolated review of the taking at issue separate and apart from the Agana Plan.....Petitioners allege the taking of Lot 237-3-2-1 provided no public purpose and was simply a disguised impermissible taking benefitting only the Respondents. Petitioners effectively request that the taking in the matter be reviewed in isolation from the Agana Plan from which it resulted. However, the record reflects that there is no dispute that the Agana Plan was adopted for valid public purposes consistent with the Public Use Clause. Petitioners did not dispute such a fact in the lower courts, and each of the trial court, the Supreme Court of Guam, and the Ninth Circuit Court have found that the Agana Plan was adopted for valid public purposes.In conclusion, this case raises no issue of takings law of general importance warranting this Court’s review.
BIO at 1-2 (footnotes omitted). In other words, "nothing to see here folks, move along."
The BIO argues that the Agana Plan is for redevelopment and thus serves a public purpose. It points out that indeed, the Plan was validated by the Ninth Circuit many years ago in Government of Guam v. Moylan Motor Co., Inc., 407 F.2d 567 (9th Cir. 1969). It attempts to narrow the issue down to whether Kelo required that the taking of a single parcel be part of "multiple and contemporaneous takings." We thought differently of course, and the amici brief ably argues that this is a case where pretext is at issue, and the Supreme Court should provide the lower courts with standards for what that means.
The Supreme Court's docket report for the case is here,
Brief in Opposition, Ilagan v. Ungacta, No. 12-723 (Mar. 13, 2013)
