dissenting:
The Agency’s taking of the Pappases’ property by eminent domain violates both the United States Constitution and the Constitution of the State of Nevada.
The United States Constitution states that no private property shall “be taken for public use, without just compensation.”1 The Constitution of the State of Nevada similarly provides that “ [private property shall not be taken for public use without just compensation having been first made.”2
The appropriation of a private citizen’s property by eminent domain proceedings must be for a “public use” within the meaning of those words in the Constitution. The government’s taking of property and giving it to another for a private use is unconstitutional and void.
The United States Supreme Court, in Berman v. Parker, upheld the transfer of property taken by eminent domain from one private *453party to another private party; however, the taking in that case involved a public use.3 The Court permitted the transfer of privately owned property to other private parties because the redevelopment area involved slums in Washington, D.C., and the conditions in the area were injurious to the public health, safety, morals and welfare.4 This court, relying on Berman, previously upheld a redevelopment plan that was attempting to eradicate blight.5
Under Nevada law, a redevelopment area must include a “blighted area, the redevelopment of which is necessary to effectuate the public purposes.”6 The Pappases’ property was not a slum. The City’s survey, gave no indication that the property was blighted in any way. There certainly were no conditions injurious to the public health, safety, morals and welfare. The property was adjacent to a savings and loan building and across the street from a bank. The redevelopment statute requires “[a]ll noncontiguous areas of a redevelopment area [to be] blighted or necessary for effective redevelopment” before adopting a redevelopment plan.7 The Agency failed to demonstrate that the taking of the Pappases’ property was necessary for effective redevelopment; it demonstrated only that it was desirable.
The California Supreme Court has concluded that “[a] finding of blight requires (1) that the area suffer ‘either social or economic liabilities, or both, requiring redevelopment in the interest of the health, safety, and general welfare’ and (2) the existence of one of the characteristics of blight.”8 In Sweetwater Valley Civic Ass’n v. National City, a redevelopment agency sought to take a golf course it considered blighted so that a private party could construct a shopping center.9 The court concluded the agency lacked evidence of social blight and that the golf course was economically profitable; therefore, it was neither an economic nor social liability.10
Here, there was no evidence of blight in or around the Pappases’ property; thus, the goal of eliminating blight, which in some cases may be a legitimate public use, is not applicable in this case. The Supreme Judicial Court of Massachusetts considered limitations on *454the acquisition of private lands and the definition of public use in a 1955 decision involving facts similar to these.11 There, the Massachusetts Legislature proposed an act that would authorize the use of public funds to acquire private lands, to be followed by redevelopment of some portions for public use and the sale of the remainder to the highest bidder for private use.12 The court held that the expectation that adjacent areas and the city as a whole would benefit from the taking did not constitute a public use.13 The court further noted,
[I]n dealing with this difficult subject one proposition is thoroughly established practically everywhere, and so far as we are aware without substantial dissent, and that is that public money cannot be used for the primary purpose of acquiring either by eminent domain or by purchase private lands to be turned over or sold to private persons for private use.14
Federal courts have agreed, particularly when the claimed public use is pretextual:
“If officials could take private property, even with adequate compensation, simply by deciding behind closed doors that some other use of the property would be a ‘public use,’ and if those officials could later justify their decisions in court merely by positing ‘a conceivable public purpose’ to which the taking is rationally related, the ‘public use’ provision of the Takings Clause would lose all power to restrain government takings.”15
The taking of the Pappases’ property by the City of Las Vegas Downtown Redevelopment Agency under the pretextual guise of a “public use” is unconstitutional and void, since the plan was to give the property to the Fremont Street Experience, a private limited liability company, which would receive all revenues from the parking garage and retail space leases.
I would affirm the district court’s dismissal of the case.
U.S. Const. amend. V.
Nev. Const. art. 1, § 8, cl. 6.
348 U.S. 26, 32-36 (1954) (transfer of property permissible to eradicate “slums” or “blight”).
Id. at 32-33.
Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 121-22, 379 P.2d 466, 467 (1963).
NRS 279.586(1)(a).
NRS 279.586(1)(f).
Sweetwater Valley Civic Ass’n v. National City, 555 P.2d 1099, 1103 (Cal. 1976) (quoting California statute governing redevelopment of blighted areas).
Id. at 1100.
Id. at 1104.
In re Opinion of the Justices, 126 N.E.2d 795 (Mass. 1955).
Id. at 796-97.
Id. at 803.
Id. at 802.
99 Cents Only Stores v. Lancaster Redevelopment, 237 F. Supp. 2d 1123, 1129 (C.D. Cal. 2001) (quoting Armendariz v. Penman, 75 F.3d 1311, 1321 (9th Cir.1996)).