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NousDefionsDoc
06-23-2005, 19:20
Fox News
High Court Expands Reach of Eminent Domain
Thursday, June 23, 2005
WASHINGTON — A divided Supreme Court (search) ruled Thursday that local governments may seize people's homes and businesses against their will for private development in a decision anxiously awaited in communities where economic growth often is at war with individual property rights.
The 5-4 ruling represented a defeat for some Connecticut (search) residents whose homes are slated for destruction to make room for an office complex. They argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.
As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.
Writing for the court, Justice John Paul Stevens (search) said local officials, not federal judges, know best in deciding whether a development project will benefit the community. States are within their rights to pass additional laws restricting condemnations if residents are overly burdened, he said.
"The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue," Stevens wrote in an opinion joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
"It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area," he said.
Justice Sandra Day O'Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.
Connecticut residents involved in the lawsuit expressed dismay and pledged to keep fighting.
"It's a little shocking to believe you can lose your home in this country," said resident Bill Von Winkle, who said he would refuse to leave his home, even if bulldozers showed up. "I won't be going anywhere. Not my house. This is definitely not the last word."
Scott Bullock, an attorney for the Institute for Justice representing the families, added: "A narrow majority of the court simply got the law wrong today and our Constitution and country will suffer as a result."
At issue was the scope of the Fifth Amendment, which allows governments to take private property through eminent domain if the land is for "public use."
Susette Kelo and several other homeowners in a working-class neighborhood in New London, Conn., filed suit after city officials announced plans to raze their homes for a riverfront hotel, health club and offices.
New London officials countered that the private development plans served a public purpose of boosting economic growth that outweighed the homeowners' property rights, even if the area wasn't blighted.
"We're pleased," attorney Edward O'Connell, who represents New London Development Corporation, said in response to the ruling.
The lower courts had been divided on the issue, with many allowing a taking only if it eliminates blight.
"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."
She was joined in her opinion by Chief Justice William H. Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas.
Nationwide, more than 10,000 properties were threatened or condemned in recent years, according to the Institute for Justice, a Washington public interest law firm representing the New London homeowners.
New London, a town of less than 26,000, once was a center of the whaling industry and later became a manufacturing hub. More recently the city has suffered the kind of economic woes afflicting urban areas across the country, with losses of residents and jobs.
The New London neighborhood that will be swept away includes Victorian-era houses and small businesses that in some instances have been owned by several generations of families. Among the New London residents in the case is a couple in their 80s who have lived in the same home for more than 50 years.
City officials envision a commercial development that would attract tourists to the Thames riverfront, complementing an adjoining Pfizer Corp. research center and a proposed Coast Guard museum.
New London was backed in its appeal by the National League of Cities, which argued that a city's eminent domain power was critical to spurring urban renewal with development projects such Baltimore's Inner Harbor and Kansas City's Kansas Speedway.
Under the ruling, residents still will be entitled to "just compensation" for their homes as provided under the Fifth Amendment. However, Kelo and the other homeowners had refused to move at any price, calling it an unjustified taking of their property.
The case was one of six resolved by justices on Thursday. Still pending at the high court are cases dealing with the constitutionality of government Ten Commandments displays and the liability of Internet file-sharing services for clients' illegal swapping of copyrighted songs and movies. The Supreme Court next meets on Monday.
The case is Kelo et al v. City of New London, 04-108.
i work on the muddy end of the land development business...all is not sweetness and light...what passes for 'public use' deserves more scrutiny...there have been times where i've bitten the had that feeds me...but i can sleep nights...
Roguish Lawyer
06-23-2005, 19:37
You don't like the decision? Why not? :munchin
from my provencial and narrow minded world view, it puts too much power in the hands of a few, in too many cases i've seen 'public use' be more akin to private profit than public benefit...a shopping mall is a lousy reason to bulldoze affordable housing...
NousDefionsDoc
06-23-2005, 19:59
You don't like the decision? Why not? :munchin
And I quote
local governments may seize people's
Roguish Lawyer
06-23-2005, 20:08
Haven't read it yet. I guess I owe you guys some thoughts. Start with the relevant text:
nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
Issue is whether an office building is "public use" or not, right?
Roguish Lawyer
06-23-2005, 20:10
Decision is here (http://a257.g.akamaitech.net/7/257/2422/23jun20051201/www.supremecourtus.gov/opinions/04pdf/04-108.pdf).
The Reaper
06-23-2005, 20:17
I disagree with the decision. Read the dissenting opinion, and look who dissented.
The government should not be able to seize private property for other private purposes. Compensation will be minimal compared to the value after it is seized and developed. Is there additional compensation then? Reminds me of the early railroad robber barons and their profiteering at the expense of the public.
This is stealing from the little guy to line the developers pockets. It is wrong. Wars have been fought over it.
TR
NousDefionsDoc
06-23-2005, 20:26
against their will for private development
No. It is not whether an office building is public use. It's whether the local government can't siezse private property for private use. If this stands, you own nothing safe from anybody. There is only public and private. If both can take, where do you stand?
This is government by consent of the governed?
Peregrino
06-23-2005, 20:29
And the Plutarchs win another one. This is more about the generation of wealth and the ability to tax that revenue than it is about the rights of affected individuals. Once again "The Golden Rule". He who has the gold (or stands to profit from it) makes the rules. The 5th Ammendment also requires compensation but property forfieted and siezed is rarely compensated at "fair market value". I seriously doubt the residents of what is obviously (potentially) very valuable real estate (why else is a developer slavering over it?) will get fair compensation, let alone a fraction of what that property is worth to the developer. We have related issues here in NC with hostile annexation laws. Cities can force the annexation of surrounding areas without the consent of the residents. There have been a few lawsuits but so far they have only served to delay the inevitable. Iminent domain is a dangerous concept fraught with abuse and the SCOTUS has once again deprived persons of "life, liberty, and property". Not a good day in any free society. My .02 - Peregrino
Issue is whether an office building is "public use" or not, right?no...the issue is whether a car dealership, a shopping mall or any other endeavor that generates private profit that a government entity can then tax equates to public use...i argue the contrary...this is government for industry, not for the people...hell, it's damn near fascist...hell, it is fascist......in my never humble opinion...
Roguish Lawyer
06-23-2005, 20:33
Gotta go, so I'll be quick.
Very quickly skimmed the opinion, skipped Kennedy's concurring, and quickly read the O'Connor and Thomas dissents. Justice Thomas wrote the best opinion, as he often does. Even cited an article written by one of my law school friends. I guess I have to agree with his analysis at a high level, but I have been involved in enough local land use disputes to be biased in favor of developers. I'll read it all more carefully later, but I'm thinking I'll probably agree with Kennedy at the end of the day (based on what O'Connor said about his opinion). We'll see.
Where are our law students? :munchin
Bill Harsey
06-23-2005, 20:33
Individual property rights and takings have been big issues out here in the Northwest in Timber country.
Environmental laws are often carefully tailored to put a lot folks out of business by taking away the legal right to harvest timber or ranch privately owned lands. When the land becomes essentially worthless, that is the owner cannot make enough money from it to pay the taxes or buy food they are driven off and someone else gets to take over.
This is a common form of taking out here.
The supreme court ruling is terrible and has parallel tracks to the situation I just described.
What happens when it's decided a new national park is more important than farming or harvesting timber.
Maybe a new species of wild flower needs protecting so it's in the publics interest to take people off the land.
This is being done with water wars all the time, salmon versus farming, Klamath Falls Oregon. Look into the Columbia River, salmon versus power versus farming fight. (environmentist, big corporation and private business)
Think it only happens in timber country?
Ever heard of National Grasslands?
Coming soon to a theater near you...
Roguish Lawyer
06-23-2005, 20:36
Compensation will be minimal compared to the value after it is seized and developed.
Wrong.
Is there additional compensation then?
No, but that gets considered when the taking is being valued.
What happens when it's decided a new national park is more important than farming or harvesting timber..then you have Escalante/Grand Staircase National Monument, Canyons of the Ancients National Monument and a lotta people who used to live on the Colorado Plateau living in Carson City...but it made Robert Redford happy and a proud president announced the creation from a state not involved to the delight of Hollywood and the media... :mad:
Roguish Lawyer
06-23-2005, 20:39
No. It is not whether an office building is public use. It's whether the local government can't siezse private property for private use. If this stands, you own nothing safe from anybody. There is only public and private. If both can take, where do you stand?
This is government by consent of the governed?
Wrong. The question is whether a taking for purposes of development that will benefit the public constitutes "public use." Put differently, whether local governments can take for public benefit when the "use" (in the possessory sense) is not public.
You guys need to understand that there are a bunch of cases already decided in this area. I do not agree that this is such a draconian expansion of power. It flows naturally from the Hawaii Housing case which, while I don't like it, is binding precedent.
Where are our law students? NDD has some in the front leaning rest, The Reaper put the rest in the dying cockroach...
Roguish Lawyer
06-23-2005, 20:42
no...the issue is whether a car dealership, a shopping mall or any other endeavor that generates private profit that a government entity can then tax equates to public use
Not that narrow. I think Kennedy's opinion probably goes this way, but I need to read it. The question is whether there is any remaining restriction on the power to take -- I suspect that, after fully considering the issue, I may think there is.
Now I am just posting really fast since there are so many replies. It's like speed chess. :D
Bill Harsey
06-23-2005, 20:44
Some overview here,
What can be abused will be abused.
This is what folks are concerned about.
Roguish Lawyer
06-23-2005, 20:45
What happens when it's decided a new national park is more important than farming or harvesting timber.
Maybe a new species of wild flower needs protecting so it's in the publics interest to take people off the land.
This is being done with water wars all the time, salmon versus farming, Klamath Falls Oregon. Look into the Columbia River, salmon versus power versus farming fight. (environmentist, big corporation and private business)
I have no problem at all with this. In fact, all of you outdoorsmen should support environmental condemnations, provided that just compensation is paid. If you want to take someone's property for public use, including environmental use, you have to pay JUST compensation.
If someone doesn't like a taking and won't take the money, they still have the Second Amendment to fall back on.
Now I am just posting really fast since there are so many replies. It's like speed chess.suck it up...drink water, take two motrin and drive on...
Roguish Lawyer
06-23-2005, 20:46
OK, I'm really going home now. May rejoin tonight, but may not be until tomorrow afternoon.
I am sure I will enjoy what I find here when I return. :munchin
Bill Harsey
06-23-2005, 20:49
I have no problem at all with this. In fact, all of you outdoorsmen should support environmental condemnations, provided that just compensation is paid. If you want to take someone's property for public use, including environmental use, you have to pay JUST compensation.
If someone doesn't like a taking and won't take the money, they still have the Second Amendment to fall back on.
Often there is ZERO compensation and that's what has folks very concerned out here.
Peregrino
06-23-2005, 21:00
I have no problem at all with this. In fact, all of you outdoorsmen should support environmental condemnations, provided that just compensation is paid. If you want to take someone's property for public use, including environmental use, you have to pay JUST compensation.
If someone doesn't like a taking and won't take the money, they still have the Second Amendment to fall back on.
Suicide by government enforcer? It's not a just compensation when refusal guarantees imprisonment or death. I admire Socrates but I have no desire to emulate him. Peregrino
BTW - I've skimmed the decision too. This slippery slope was greased years ago with a lot of big money. Individual rights are only secure if you don't have anything somebody else wants.
aricbcool
06-23-2005, 21:05
What about the sentimental or "subjective" value of property?
How does one determine just compensation for that?
Picture Grandpa and Grandma with the old farm house being forced out of their home because of a new shopping mall.
Never mind that the farm had been in the family for 5 generations
Never mind that they watched their kids grow up there, spent the best and worst years of their lives there, never lived anywhere else, etc.
Private property became a thing of the past when they started taxing it every year.
This decision is merely a reminder of that fact.
--Aric
The Reaper
06-23-2005, 21:05
Wrong.
No, but that gets considered when the taking is being valued.
Who determines the value?
Is value solely determined by dollars?
The people who legally owned the land, paid the taxes, and raised their families on it, or the government which wants to condemn the property and reallocate it to a privately held company?
So the government which is elected to represent the people can take their property and redistribute it as they see fit?
I do not think that is democracy in action, sounds more like communism to me.
TR
The Reaper
06-23-2005, 21:08
Not that narrow. I think Kennedy's opinion probably goes this way, but I need to read it. The question is whether there is any remaining restriction on the power to take -- I suspect that, after fully considering the issue, I may think there is.
Now I am just posting really fast since there are so many replies. It's like speed chess. :D
Power corrupts.
Absolute power corrupts absolutely.
I am beginning to see why some people hate lawyers.
TR
The Dave
06-23-2005, 21:21
RL, I'm just curious if you might know the answer to this...
Lets say the Gov. comes in to seize the property. Aside from sentimentel value, how is "Just compensation, or Fair Market" determined? Is the Gov. going to pay the homeowner, the amount, say a private appraiser would determine the value at?
If House A is the one being seized, and House B is just, say 2 or 3 blocks away, also is a very comporable home (Valued at $250k), would house A's homeowners be paid the true value ($240-$250k)?
I'm guessing no, or that they have their own "appraisers" to really low ball the properties.
I agree with TR, sounds like communism.
Bill Harsey
06-23-2005, 21:36
On that parallel track of government taking, let me cite an example of how subtle this can be in Oregon and offer no compensation.
First note we pride ourselves with having the very toughest timber harvest and reforestation laws in the nation. All commercial timber activities on public or private land are subject to the Oregon State Board of Foresty rules and regs.
Here is a good law,
By Oregon State Board of Forest Practices law no trees on public or private land can be harvested within so many feet of a fish bearing stream. This is called a Riparian Buffer. The purpose of this standing timber buffer is to provide some shade and help keep the water temperature within the correct range that young migrating salmons and steelhead trout eggs hatch at the right time to grow up and make the long journey downstream to salt water.
This is a good thing to do in my point of view.
With all the fighting and arguing right now. I don't know if the riparian buffer is 50 or 200 feet on each side of a stream.
Here is a problem with the above stated riparian buffer law. I know of instances where it has been enforced in seasonal streams that have no migrating fishes BECAUSE THEY DRY UP IN THE SUMMER.
This means none of the trees in the riparian buffer zone (of a stream for which the law was never intended because it has no salmons or steelhead trouts) can be harvested for timber to be sold.
A strip of timber up to two hundred feet of either side of a stream might be all there is on the privately owned property.
So no trees can be harvested. Same thing is being done with pairs of nesting owls that need huge circles of territory left undisturbed around them. This is actually hard on the spotted owls because then they have to fly clear across into the next clearcut to hunt mice, but back to my point...
This is an example of taking with ZERO compensation.
Ambush Master
06-23-2005, 21:44
Better/Worse yet,
One of the "failing" municipalities on the Left Coast (or wherever), starts "Flipping" properties to "fund" their cities/interests !!! Or a major developer, with the politicos in their pockets, start pulling this card for their highly profitable private ventures !!! Way outside of the old "for the public good" standards/for the public's good that historically have existed. The individual States will have to legislate this one to keep this trainwreck from happening !!
Lotsaaaa..... luck !!!
Peregrino
06-23-2005, 22:39
Just finished reading the entire brief. My opinion stands. A little less free, a little more subject to the tyranny of the masses/moneyed. Kudos for Justices O'Connor et.al. and Justice Thomas for their dissention. Interestingly both dissenting opinions refer to the actual Constitution or "original material" (e.g. Blackstone) and both challenge the validity of the arguments used in the precedents cited by the majority. I actually like Justice Thomas' opinion better than Justice O'Connor's. Both decry the erosion of the "public use" clause and interestingly enough both raise the spectre of a state's "police powers" (though I'm not sure they use it in the same manner I would). Both also challenge the majority's slavish deferrence to the legislatures as to what constitutes acceptable public use. (I've never been a fan of legislatures/legislative bodies when it comes to money and its redistribution - and that's exactly what this case is about.) Interesting. Peregrino
Roguish Lawyer
06-24-2005, 00:07
Often there is ZERO compensation and that's what has folks very concerned out here.
That is not OK. If you are going to take someone's property, you should have to pay full value. At least in California, the law is actually quite pro-takee in that respect. Now whether the takee has adequate counsel or not, that's another question.
Roguish Lawyer
06-24-2005, 00:10
What about the sentimental or "subjective" value of property?
How does one determine just compensation for that?
Picture Grandpa and Grandma with the old farm house being forced out of their home because of a new shopping mall.
Never mind that the farm had been in the family for 5 generations
Never mind that they watched their kids grow up there, spent the best and worst years of their lives there, never lived anywhere else, etc.
Private property became a thing of the past when they started taxing it every year.
This decision is merely a reminder of that fact.
--Aric
Totally compensable. The property owner can testify about all of this stuff at a valuation hearing.
Boy, you guys are awfully romantic. I do not mean that disrespectfully, either.
Roguish Lawyer
06-24-2005, 00:16
Who determines the value?
Is value solely determined by dollars?
The people who legally owned the land, paid the taxes, and raised their families on it, or the government which wants to condemn the property and reallocate it to a privately held company?
So the government which is elected to represent the people can take their property and redistribute it as they see fit?
I do not think that is democracy in action, sounds more like communism to me.
TR
The government and the property owners are adverse parties in a legal proceeding. Ultimately, a judge or jury will decide the value of the property after a trial. The government does not get to pick the value -- it can just advocate a position on value, as can the landowner.
In California at least, and I suspect in other states also, the property owner can testify about what the property is worth to them from a subjective point of view (or otherwise), and such testimony is admissible and sufficient to support a finding of value without anything else.
Roguish Lawyer
06-24-2005, 00:17
I am beginning to see why some people hate lawyers.
Just beginning? ;)
Roguish Lawyer
06-24-2005, 00:19
RL, I'm just curious if you might know the answer to this...
Lets say the Gov. comes in to seize the property. Aside from sentimentel value, how is "Just compensation, or Fair Market" determined? Is the Gov. going to pay the homeowner, the amount, say a private appraiser would determine the value at?
If House A is the one being seized, and House B is just, say 2 or 3 blocks away, also is a very comporable home (Valued at $250k), would house A's homeowners be paid the true value ($240-$250k)?
I'm guessing no, or that they have their own "appraisers" to really low ball the properties.
I agree with TR, sounds like communism.
Contested trial with all admissible evidence considered. Appraisers usually testify. There are special pro-landowner rules that allow non-expert testimony on value as discussed in some posts above.
What if we need to build a new military base somewhere? You guys have a problem with condemnation then? :munchin
Roguish Lawyer
06-24-2005, 00:21
On that parallel track of government taking, let me cite an example of how subtle this can be in Oregon and offer no compensation.
First note we pride ourselves with having the very toughest timber harvest and reforestation laws in the nation. All commercial timber activities on public or private land are subject to the Oregon State Board of Foresty rules and regs.
Here is a good law,
By Oregon State Board of Forest Practices law no trees on public or private land can be harvested within so many feet of a fish bearing stream. This is called a Riparian Buffer. The purpose of this standing timber buffer is to provide some shade and help keep the water temperature within the correct range that young migrating salmons and steelhead trout eggs hatch at the right time to grow up and make the long journey downstream to salt water.
This is a good thing to do in my point of view.
With all the fighting and arguing right now. I don't know if the riparian buffer is 50 or 200 feet on each side of a stream.
Here is a problem with the above stated riparian buffer law. I know of instances where it has been enforced in seasonal streams that have no migrating fishes BECAUSE THEY DRY UP IN THE SUMMER.
This means none of the trees in the riparian buffer zone (of a stream for which the law was never intended because it has no salmons or steelhead trouts) can be harvested for timber to be sold.
A strip of timber up to two hundred feet of either side of a stream might be all there is on the privately owned property.
So no trees can be harvested. Same thing is being done with pairs of nesting owls that need huge circles of territory left undisturbed around them. This is actually hard on the spotted owls because then they have to fly clear across into the next clearcut to hunt mice, but back to my point...
This is an example of taking with ZERO compensation.
Bill, that is a regulatory taking, which is something I think should be compensated. Different issue than the one raised by this case. This case is more about whether cities should be able to force people to sell when there is a project the city thinks is beneficial to the community.
Roguish Lawyer
06-24-2005, 00:26
Better/Worse yet,
One of the "failing" municipalities on the Left Coast (or wherever), starts "Flipping" properties to "fund" their cities/interests !!! Or a major developer, with the politicos in their pockets, start pulling this card for their highly profitable private ventures !!! Way outside of the old "for the public good" standards/for the public's good that historically have existed. The individual States will have to legislate this one to keep this trainwreck from happening !!
Lotsaaaa..... luck !!!
I respect your point of view, but respectfully suggest that this just won't happen. Condemnation proceedings are very expensive for cities. You not only have to pay for the property, often in excess of market value (because subjective value also is taken into account as discussed above), but you also have to pay for litigation over valuation, appraisals, etc. You have to really want the property to condemn it, because you are going to overpay when you condemn.
I base this on my prior experience in local politics as a political consultant, and also on some litigation experience in the area. There may be different rules in other jurisdictions.
Roguish Lawyer
06-24-2005, 00:28
I still have not read the opinion, so I reserve the right to change my position on the case. :p
Bill Harsey
06-24-2005, 07:37
Bill, that is a regulatory taking, which is something I think should be compensated. Different issue than the one raised by this case. This case is more about whether cities should be able to force people to sell when there is a project the city thinks is beneficial to the community.
Correct and as I said before, I think these are parallel tracks of law designed to take property at will when it serves someone elses purpose.
There will be a meeting of these two "streams" to become a river.
A government that can now forcibly take private property from one person for the benefit (profit) of another private party is not the one I approve of.
Roguish Lawyer
06-24-2005, 07:56
Correct and as I said before, I think these are parallel tracks of law designed to take property at will when it serves someone elses purpose.
There will be a meeting of these two "streams" to become a river.
A government that can now forcibly take private property from one person for the benefit (profit) of another private party is not the one I approve of.
Bill, in the case we are talking about, there is no question that compensation needs to be paid. The question is whether there is a power to take.
With a regulatory taking, the question is whether there is a taking at all. If there is no taking, there is no basis for compensation under the Takings Clause.
Where are our law students? :munchin
I'm going to read the opinion first, we read the Hawaii Housing case in this past semester.
This holding has a big impact here in DC. The city promised to build a stadium for the new baseball team in SE, near the Navy Yard, and plans to invoke eminent domain to acquire property.
Bill Harsey
06-24-2005, 09:49
Bill, in the case we are talking about, there is no question that compensation needs to be paid. The question is whether there is a power to take.
With a regulatory taking, the question is whether there is a taking at all. If there is no taking, there is no basis for compensation under the Takings Clause.
Yep, that's the big discussion in these parts.
Mix in land use, zoning, environmental issues and regulations, traditional resource providing industries and, uh, liberals... then you have a real party.
The Reaper
06-24-2005, 10:19
What if we need to build a new military base somewhere? You guys have a problem with condemnation then? :munchin
1. When did condemnation for a military base become a private acquisition? That is for government/public purposes, which has always been legal.
2. When did the government last condemn land to build a new military base, counsel?
TR
Bravo1-3
06-24-2005, 10:51
The prolem I have is that the definition of "Public Use" is far to broad. We charge property taxes, income taxes, sales taxes and others to fund the city/county/state governments. This decision only serves to encourage various levels of government to increase their funding through condemnation. Most states don't have the kinds of protections that RL is talking about.
Bill, just look at what the City of Keiser(kastan) tried only 2-3 months ago, trying to pay 10% of the value of an entire neighborhood to build a strip mall. Fortunately, some creative thinkers filed Measure 37 claims against the city, and the city council weren't bright enough to see their way out of it.
Look at what the City of Portland and Krispy Kreme did to Waddles Resturant.
I can't even imagine the kind of celebrations the Peoples Central Committees in Portland and Eugene are going to have over this.
Bill Harsey
06-24-2005, 11:09
The prolem I have is that the definition of "Public Use" is far to broad. We charge property taxes, income taxes, sales taxes and others to fund the city/county/state governments. This decision only serves to encourage various levels of government to increase their funding through condemnation. Most states don't have the kinds of protections that RL is talking about.
Bill, just look at what the City of Keiser(kastan) tried only 2-3 months ago, trying to pay 10% of the value of an entire neighborhood to build a strip mall. Fortunately, some creative thinkers filed Measure 37 claims against the city, and the city council weren't bright enough to see their way out of it.
Look at what the City of Portland and Krispy Kreme did to Waddles Resturant.
I can't even imagine the kind of celebrations the Peoples Central Committees in Portland and Eugene are going to have over this.
There it is RL,
What can be abused will be abused.
Peregrino
06-24-2005, 11:22
There it is RL,
What can be abused will be abused.
Bill - If I may: "What can be USED will be Abused." This was on the front page of most of the papers I saw this morning - and the tone varied from glee (local politicians/developers) to dismay (everybody else). Government exists to redistribute wealth and punish incentive. This just reinforces that impression. RL - I'm glad California is so pro-victim, not everyplace else is. Then the victims have to front the cost of the legal fight and most proceeds go to paying the lawyers. Not quite fair. Peregrino
Roguish Lawyer
06-24-2005, 11:55
http://www.opinionjournal.com/editorial/feature.html?id=110006862
REVIEW & OUTLOOK
Kennedy's Vast Domain
The Supreme Court's reverse Robin Hoods.
Friday, June 24, 2005 12:01 a.m. EDT
The Supreme Court's "liberal" wing has a reputation in some circles as a guardian of the little guy and a protector of civil liberties. That deserves reconsideration in light of yesterday's decision in Kelo v. City of New London. The Court's four liberals (Justices Stevens, Breyer, Souter and Ginsburg) combined with the protean Anthony Kennedy to rule that local governments have more or less unlimited authority to seize homes and businesses.
No one disputes that this power of "eminent domain" makes sense in limited circumstances; the Constitution's Fifth Amendment explicitly provides for it. But the plain reading of that Amendment's "takings clause" also appears to require that eminent domain be invoked only when land is required for genuine "public use" such as roads. It further requires that the government pay owners "just compensation" in such cases.
The founding fathers added this clause to the Fifth Amendment--which also guarantees "due process" and protects against double jeopardy and self-incrimination--because they understood that there could be no meaningful liberty in a country where the fruits of one's labor are subject to arbitrary government seizure.
That protection was immensely diminished by yesterday's 5-4 decision, which effectively erased the requirement that eminent domain be invoked for "public use." The Court said that the city of New London, Connecticut, was justified in evicting a group of plaintiffs led by homeowner Susette Kelo from their properties to make way for private development including a hotel and a Pfizer Corp. office. (Yes, the pharmaceutical Pfizer.) The properties to be seized and destroyed include Victorian homes and small businesses that have been in families for generations.
"The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue," Justice John Paul Stevens wrote for the majority. Justice Kennedy wrote in concurrence that this could be considered public use because the development plan was "comprehensive" and "meant to address a serious city-wide depression." In other words, local governments can do what they want as long as they can plausibly argue that any kind of public interest will be served.
In his clarifying dissent, Justice Clarence Thomas exposes this logic for the government land grab that it is. He accuses the majority of replacing the Fifth Amendment's "Public Use Clause" with a very different "public purpose" test: "This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'"
And in a separate dissent, Justice Sandra Day O'Connor suggested that the use of this power in a reverse Robin Hood fashion--take from the poor, give to the rich--would become the norm, not the exception: "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."
That prospect helps explain the unusual coalition supporting the property owners in the case, ranging from the libertarian Institute for Justice (the lead lawyers) to the NAACP, AARP and the late Martin Luther King's Southern Christian Leadership Conference. The latter three groups signed an amicus brief arguing that eminent domain has often been used against politically weak communities with high concentrations of minorities and elderly. Justice Thomas's opinion cites a wealth of data to that effect.
And it's not just the "public use" requirement of the Fifth Amendment that's undermined by Kelo. So too is the guarantee of "just compensation." Why? Because there is no need to invoke eminent domain if developers are willing to pay what owners themselves consider just compensation.
Just compensation may differ substantially from so-called fair market value given the sentimental and other values many of us attach to our homes and other property. Even eager sellers will be hurt by Kelo, since developers will have every incentive to lowball their bids now that they can freely threaten to invoke eminent domain.
So, in just two weeks, the Supreme Court has rendered two major decisions on the limits of government. In Raich v. Gonzales the Court said there are effectively no limits on what the federal government can do using the Commerce Clause as a justification. In Kelo, it's now ruled that there are effectively no limits on the predations of local governments against private property.
These kinds of judicial encroachments on liberty are precisely why Supreme Court nominations have become such high-stakes battles. If President Bush is truly the "strict constructionist" he professes to be, he will take note of the need to check this disturbing trend should he be presented with a High Court vacancy.
The Reaper
06-24-2005, 12:17
They need an environmental finding of an endangered species, like some special cockroach.
Then the land would be worthless for development, and the enviro-wackos and libs (to include the ACLU) would defend it to the end.
TR
Peregrino
06-24-2005, 12:18
Once again the WSJ hits the nail on the head. Anybody else think the coffin (containing the Constitutional Rights codified by the Founding Fathers) has enough nails in it to sink yet? It's obviously being buried in a "sea" of indifference at least from the courts and legislatures. Peregrino
The Reaper
06-24-2005, 12:22
Wait till you see the namby pamby new SC Justice that Congress affirms.
Then we will really be near the end.
TR
Roguish Lawyer
06-24-2005, 12:39
Hey TR (and others feel free too):
What do you think about this decision?
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=467&invol=229
I guess we couldn't really deploy 7th Group to Hawaii to seek regime change . . .
:munchin
The Reaper
06-24-2005, 12:46
Land reform on former royal property. Unique to Hawaii.
I do not like it, but I understand the intent, and the public benefit.
That explains the lease-hold vs. fee simple types of property there.
State specific, should be applicable in any other state which was formerly a sovereign monarchy with royalty holding all property rights.
TR
Hey TR (and others feel free too):
What do you think about this decision?
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=467&invol=229
I guess we couldn't really deploy 7th Group to Hawaii to seek regime change . . .
:munchin
A Little late now isn't it?
I am absolutely sickened by the outcome of U.S. vs. Miller in 1939, but there isn't really much to be done about it now except learn from it.
Roguish Lawyer
06-24-2005, 13:22
I have now read everything. I think it is more difficult than you might think to distinguish between a redevelopment taking, such as the one at issue in this case, from a taking for mining, agricultural or other purposes -- all of which are permitted under well-established precedent.
While I think Justice Thomas correctly analyzes things from a textual standpoint, I must say that Justice Kennedy's opinion recognizes the practical reality that economic development is as much of a legitimate public purpose as the others that people here accept. I'm not so sure that rational basis review is sufficient, and probably would require a heightened level of scrutiny of such takings, but I think if truly just compensation is paid, local police powers justify these takings in many circumstances.
The Reaper
06-24-2005, 13:27
"if truly just compensation is paid"
Lot of wiggle room in those words counsel.
I hope that no one here ever loses their home of a lifetime because a business wants your property, and has greased enough palms at City/County/State Hall to get it.
This is a sad day for America, and the Constitution. :(
TR
Roguish Lawyer
06-24-2005, 13:29
I hope that no one here ever loses their home of a lifetime because a business wants your property, and has greased enough palms at City/County/State Hall to get it.
That would not be permitted even under the majority's decision.
That would not be permitted even under the majority's decision.
You have entirely too much faith in the Human element of the equation.
The Reaper
06-24-2005, 13:42
That would not be permitted even under the majority's decision.
How would we know what precipitated the condemnation proceeding?
Does your average property owner have the resources to afford competent representation and take the issue to the courts?
This sets the stage for a whole new series of land grabs.
TR
Roguish Lawyer
06-24-2005, 15:05
How would we know what precipitated the condemnation proceeding?
Does your average property owner have the resources to afford competent representation and take the issue to the courts?
This sets the stage for a whole new series of land grabs.
TR
The government has the burden of establishing that the taking is for a public use. That's why there was an ample record in the case we are discussing. In my state, the government has to pay the property owner's attorneys' fees and costs if it seeks to take property and loses on this issue.
You are correct that there may be situations where the property owner cannot afford competent counsel. I think that is a broader issue, however. Wealth translates into legal power in many contexts. This certainly is a strong argument against the Court's decision.
In old English law, property is ultimately owned by the Crown, a property owner had a right to use it subject to the wishes of the Crown. Early legal scholars have argued that sovereign states, as original possessors, hold absolute ownership of property. Possession was then subsequently granted to citizens by the state, with the implied reservation that the state can take it back. The 5th Amendment tried to balance the idea that government has a right to take property, with the right of property owners, by requiring compensation and justification of public use. My textbook even includes speculation that the compensation requirement was inserted to protect the then wealthy landowners from "egalitarian redistributions of wealth." The 5th Amendment does not grant the taking power, it only confirms it.
It’s interesting that Justice O’Connor wrote a dissenting opinion in this case, since she wrote the majority opinion in Hawaii Housing. This opinion only says that this taking is within the meaning of “public use” under the Fifth Amendment, and defers to the State, in this case the City of New London. It’s for the states to decide whether they want to be stricter. “Nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.” (Opinion at 19) Justice Thomas attacked this in his dissent, stating that “…a court owes no deference to a legislature’s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property.” (Thomas Dissent at 13) Justice Thomas, in his dissent, adheres to a strict reading of the Constitution. It’s interesting he cites Blackstone, since my textbook views Blackstone’s position on this as an “overstatement.”
I agree with the majority opinion from a standpoint of efficiency, as well as the premise that the state has ultimate sovereignty. If there is a more productive, beneficial use of the property, and the free market cannot extract that benefit, then the state should step in. In this case the area is part of a city in decay. If the city has an integrated development plan, which of course would result in increased tax revenues, but also in revitalization, many of the benefits of which can not be quantified, should it not be able to pursue the plan for the greater good of the citizens? One detail here is that the land would be transferred to private developers, who would profit from the endeavor. Well, the city is not in the business of developing land, it must pass that job to a commercial developer, and no developer is going to take on the project unless it can make money. Of course this raises the specter of rich developers unduly influencing the legislature.
Things get trickier when it comes to just compensation. Five of the fifteen parcels are held as investment properties. What do those owners think is just compensation? The standard is fair market value, which is derived from comparable sales in the area. Some factors to consider with regards to compensation:
- Increase/decrease in value, how do we account for the fact that property values shoot up if a school is slated to be built nearby, or dive down if a sewage treatment plant is coming. Or should it be the value with no development coming.
- Sentimental value
- Cost of moving, typically not factored into compensation, this would include higher cost of acquiring property elsewhere
- Increase in value that accrues to holdouts
Thus, just compensation does not mean full compensation, but based on RL's information it is more than I thought.
The Reaper
06-25-2005, 09:38
The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If `Thou shalt not covet' and `Thou shalt not steal' were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free. John Adams, A Defense of the American Constitutions, 1787
Property is surely a right of mankind as real as liberty. John Adams
I have come to the conclusion that one useless man is a disgrace, two men are called a Law Firm, and three men or more are called a Congress. John Adams
If the present (Continental) Congress errs in too much talking, how can it be otherwise, in a body to which the people send one hundred and fifty lawyers, whose trade it is to question everything, yield nothing, and talk by the hour? Thomas Jefferson
Among the natural rights of the colonists are these: first, a right to life; secondly, to liberty; thirdly to property; together with the right to support and defend them in the best manner they can. Samuel Adams
[A]ll power is originally vested in, and consequently derived from, the people. That government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty and the right of acquiring property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their government whenever it be found adverse or inadequate to the purpose of its institution. James Madison
Democracies have been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their death. James Madison
The dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights... . In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Justice Potter Stewart
The right to enjoy property without unlawful deprivation, no less that the right to speak out or the right to travel is, in truth, a “personal” right. Justice Potter Stewart
Next to the right of liberty, the right of property is the most important individual right guaranteed by the Constitution and the one which, united with that of personal liberty, has contributed more to the growth of civilization than any other institution established by the human race. William Howard Taft
The reason why men enter into society is the preservation of their property. John Locke
Government has no other end, but the preservation of property. John Locke
Every government interference in the economy consists of giving an unearned benefit, extorted by force, to some men at the expense of others. Ayn Rand
1. Abolition of property in land and application of all rents of land to public purposes. Karl Marx
Roguish Lawyer
06-25-2005, 11:32
The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.
Well, then we already have had tryanny for years by allowing eminent domain in any form. You are OK with taking property for roads and military bases -- how is that any less tyrannical? It's not so much.
I was really surprised to see you supporting the decision in Hawaii Housing, because that was basically a communist redistribution of land from the wealthy to everyone else. It's OK with you based on how the owners got the land in the first place?
No one here seems to be so pure that they would make private property as sacred as you keep saying it is, which would require eliminating takings altogether. The only question is where you draw the line between a taking "for public use" and a taking that is not "for public use."
I do not believe that anyone here can demonstrate that there is any meaningful difference between a taking for a new freeway and a taking for a redevelopment project of the nature in this case. This case does NOT allow taking property from one citizen and giving it to another willy nilly. In this case, there were significant and valid public policy reasons for wanting this project. The closing of the military base really hurt the community, and the Pfizer facility offered hope. Economic revitalization of a community is no less valid a public purpose than building a new road or a stadium -- it is done for the benefit of the public.
I indicated above that I think the majority defers too much to local communities, and a heightened standard should be applied to make sure that no one is being bought off or whatever. But you guys are not as principled as you would like to think. :p
By the way, TR, have you seen a movie starring Al Pacino and Keanu Reeves? Just curious. ;)
NousDefionsDoc
06-25-2005, 11:56
Are military bases and roads for-profit propositions? Do all citizens benefit from their construction?
Are office parks and malls for-profit propositions? Do all citizens benefit from their construction?
If the tierra-tenientes want to build another strip mall, let them pay whatever it takes to buy the land. And if they can't, let them build it somwhere else.
Your argument doesn't hold water counselor, and you're pissing The People off.
I have a problem with eminent domain for public benefit. I don't have a better solution however.
I have a huge problem with profit domain for private corporations or even wealthy individuals.
The Reaper
06-25-2005, 12:18
What NDD said.
The issue is the difference between public and private.
I take it Counselor, that you are not a fan of John Adams?
TR
The property rights of Americans have been under full frontal assault since 1937. Excellent thought starters on the topic inlcude Ely's The Guardian of Every Other Right and Reich's article in the 1964 Yale Law Review, "The New Property."
If private property is the small zone in which the individual can stand and exercise personal sovereignty, what exactly does it include today? Almost nothing of consequence. Our freedom is an inch deep.
I will stop myself there, though, or my weekend will be lost to apoplexy. :mad:
Roguish Lawyer
06-25-2005, 18:57
The issue is the difference between public and private.
Agreed.
I take it Counselor, that you are not a fan of John Adams?
LOL -- actually, I am. Sorry to delay the positive feedback. What I am about to do was planned before I saw your post.
I can't add anything to this discussion, but I know two things.
1) This country seems to be running in circles sometimes - like circling a drain.
2) This will be overturned.
When you give the government power, you rarely get it back.
The Reaper
06-25-2005, 22:29
I can't add anything to this discussion, but I know two things.
1) This country seems to be running in circles sometimes - like circling a drain.
2) This will be overturned.
When you give the government power, you rarely get it back.
Sigi:
Who do you appeal to from the Supreme Court?
TR
The sad part in all this is that very few people in any one area care about the issue. For people who vote in any area few will hear about it in the news or even find out about one taking place in their area. If they do they will think the "new area" might be a nice area to go shopping.
Few people in any area care about the issue. The guys with the big bucks grease the politico's hands and the deal goes through. A few small fries are kicked off their land, making for some good local news stories, a home being torn down as a little old lady cries on the sidewalk. Election time rolls around and the money bags of the politico's with the greased hands are stuffed with money by the guys with the big bucks. The politicos are re-elected and the cycle continues.
An uninformed vote at election time is a wasted vote. Learn about who is running in you area and cast a wise vote.
But as we can see, sometimes the people we vote for make a 180 after the election and vote the other way on issues.
Pete
NousDefionsDoc
06-26-2005, 09:53
Sigi:
Who do you appeal to from the Supreme Court?
TR
God, but they appear to have a problem with His jurisdiction as well.
The Reaper
06-26-2005, 10:04
God, but they appear to have a problem with His jurisdiction as well.
Now where are you going to find a lawyer in Heaven?
Better apply for a change of venue, lots of representation down there. :D
TR
Roguish Lawyer
06-26-2005, 10:30
Now where are you going to find a lawyer in Heaven?
Better apply for a change of venue, lots of representation down there. :D
TR
He's on a roll! LMAO
Roguish Lawyer
06-26-2005, 10:31
This thread demonstrates that you guys really are committed to your motto, I think. Poor little homeowners being oppressed by The Man . . . :rolleyes:
The Reaper
06-26-2005, 10:36
This thread demonstrates that you guys really are committed to your motto, I think. Poor little homeowners being oppressed by The Man . . . :rolleyes:
For a Federalist, you sure are pretty supportive of the erosion of private property rights for other private interests with deeper pockets.
I do not think that the Founders would have supported this decision.
TR
Roguish Lawyer
06-26-2005, 10:39
For a Federalist, you sure are pretty supportive of the erosion of private property rights for other private interests with deeper pockets.
I do not think that the Founders would have supported this decision.
TR
You never did answer my question about the movie. Another clue is The Paper Chase.
The question is whether the taking is "for other private interests with deeper pockets." Those takings are not permitted -- there has to be a significant public benefit. There was no issue about that in this case -- it is not much different from the blight cases, really.
The Reaper
06-26-2005, 10:45
You never did answer my question about the movie. Another clue is The Paper Chase.
The question is whether the taking is "for other private interests with deeper pockets." Those takings are not permitted -- there has to be a significant public benefit. There was no issue about that in this case -- it is not much different from the blight cases, really.
Saw them both. Are you identifying with Pacino's character?
I am sure that Pfizer has more private right to the property than those peasants who were the previous rightful owners.
And Pfizer needs the space to benefit the public by stocking up more of those fine Pfizer products, like Vioxx.
I am sure that if the public shows up at the new building, they will be welcome to come up to the executive suites on the top floor and enjoy the view.
TR
Roguish Lawyer
06-26-2005, 11:52
Saw them both. Are you identifying with Pacino's character?
I am sure that Pfizer has more private right to the property than those peasants who were the previous rightful owners.
And Pfizer needs the space to benefit the public by stocking up more of those fine Pfizer products, like Vioxx.
I am sure that if the public shows up at the new building, they will be welcome to come up to the executive suites on the top floor and enjoy the view.
TR
Well screw all of the unemployed people in the community. Let Pfizer build its new facility elsewhere. :boohoo
Well screw all of the unemployed people in the community. Let Pfizer build its new facility elsewhere. :boohoo
The people who lost their house will not be the people hired at any new structure. Retired people living on a fixed income will be handed a small sum and kicked to the curb. They will be forced to buy a home (sink more into it) that will not be as good as their former home. Their neighbors will be scattered throughout the city and will have to start all over.
This was not a fine line they walked over but a multi-lane highway they leaped over.
Pete
Airbornelawyer
06-27-2005, 12:16
...
2) This will be overturned.
...Notwithstanding Justice O'Connor's dissent, this decision was consistent with the erosion of the public use/public purpose distinction of a long line of cases, including the Midkiff decision which she authored (and which, as RL correctly notes, was little more than thinly-disguised socialist redistribution). There is no clear grounds on which it would be overruled without also overruling Midkiff and Berman, as Justice Thomas notes in his separate dissent. But note that no justice joined Thomas, so there is apparently only one vote for returning to the narrow interpretation of public use.
The interesting thing to me, frankly, is how dramatically this decision is being played, as a major change in the ordering of liberty in the United States. Not only is the outcome consistent with the 1954 decision in Berman, it is almost identical. In Berman, Congress approved a development scheme for an entired "blighted" area and began condemnation proceedings on all the properties not otherwise acquired, including those that themselves were not blighted such as plaintiff Berman's department store. The Court upheld the plan, deferring to Congress' determination that the area was blighted, a comprehensive redevelopment plan was justified, and transfers to private developers were a legitimate tool of the plan. In Kelo, you have a city-approved economic development plan that called for taking the land not only of blighted buildings, but also of the otherwise well-kept homes and businesses of the plaintiffs. The Court in both cases was presented with the same two questions: (i) is economic redevelopment a legitimate public purpose? and (ii) should the courts defer to the legislative branches of government in these decisions? In both cases, it reached the same conclusion.
The only real differences are these: first, the blight of the DC neighborhood in Berman was greater than the economic woes of New Haven, allowing Justice O'Connor to claim that the taking in Kelo was of a different nature, when in fact it appears to be merely more of a different magnitude (a point Justice Thomas makes, and more eloquently than I have). Second, the rejuvenated property rights movement, in the wake of egregious cases such as Poletown, has been effective in recent years in drawing attention to just how much local governments have gotten away with, and it seemed to some observers that the pendulum might be shifting back the other way.
But even though the pendulum has swung back to a fair degree, it is not enough, and Kelo, being entirely too consistent with existing precedent, was a bad case for the property rights movement to rest its hopes on.
Roguish Lawyer
06-27-2005, 12:41
Excellent points, AL. Absolutely correct.
Peregrino
06-27-2005, 12:50
Excellent points, AL. Absolutely correct.
That's why I preferred Justice Thomas' dissent. The case law completely supports the majority decision. That doesn't mean justice has been served by any of it. Time to return to the Constitution and quit using questionable precedents to justify the continuing erosion of liberty.
Brief Hijack - What's the deal about SCOTUS recessing unexpectedly today?
Peregrino
BTW - RL, Like your new signature lines. Definitely "Quotable Quotes".
Roguish Lawyer
06-27-2005, 12:54
BTW - RL, Like your new signature lines. Definitely "Quotable Quotes".
Credit goes to The Boss.
Peregrino
06-27-2005, 13:06
Credit goes to The Boss.
TR will appreciate that! :D Peregrino
BMT (RIP)
06-28-2005, 12:37
For Release Monday, June 27 to New Hampshire media
For Release Tuesday, June 28 to all other media
Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.
Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.
On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.
Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.
The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."
Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.
"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development."
Clements' plan is to raise investment capital from wealthy pro-liberty investors and draw up architectural plans. These plans would then be used to raise investment capital for the project. Clements hopes that regular customers of the hotel might include supporters of the Institute For Justice and participants in the Free State Project among others.
Roguish Lawyer
06-28-2005, 12:39
Now THAT'S FUNNY!!!! ROTFLMAO! :D
Funny, yes.
If it goes through? THAT would be justice.
The Reaper
06-28-2005, 16:11
He should start selling shares.
I'm in.
TR
NousDefionsDoc
06-29-2005, 18:42
DAMN! BMT beat me to the punch! I was just getting ready to post this. ROTFLMAO
The chicken has come home to roost.
Just Desserts Cafe
ROTFLMMAO!
Doc
This story is getting a lot of air play on Fox right now on Hannity and Colmes. (about the hotel...) :D
Roguish Lawyer
06-30-2005, 14:54
Interesting thoughts on regulatory takings and this case from Professor Eugene Volkh at volokh.com:
[Eugene Volokh, June 30, 2005 at 12:32pm] 0 Trackbacks / Possibly More Trackbacks
Kelo and Regulatory Takings: A post by Mark Tushnet on a lawprofs' discussion list led me to wonder how the Kelo dissents' theory would deal with regulatory takings.
Two background items: First, under the Takings Clause, there are two kinds of takings, (1) "physical takings" in which the title to the property is actually taken, and (2) "regulatory takings," in which the owner keeps the formal title but loses the right to use the property in certain ways, the right to exclude people, the right to sell the property, the right to leave it in a will, or what have you. Generally speaking it takes a lot of interference with the owner's rights to make regulation qualify as a "regulatory taking" (at least outside the special context of regulations that require landowners to let people onto their property, which are on the way to being physical takings, and which I will set aside for purposes of this post). Still, the Court has held that, for instance, banning virtually all development on a parcel, and thus rendering its value nearly nil, would qualify as a taking even if the owner still owns the parcel. See Lucas v. South Carolina Coastal Council (1992).
Conservatives are generally bigger fans of the regulatory takings doctrine than are liberals; Lucas, for instance, was written by Scalia, and joined by Rehnquist, O'Connor, Kennedy, and Thomas; libertarians tend to like it, too. Some liberals believe that regulatory takings should almost never be found, or even that the doctrine shouldn't exist, and that no regulation short of taking of title (or possibly interference with the right to exclude) should be considered a "taking."
Second, the debate in Kelo can be seen as pitting two different interpretations of "public use" in "nor shall private property be taken for public use, without just compensation": (1) "Public use" means "continuous public ownership or access," for instance if the government keeps the property or sells it to a common carrier (and access simply means the ability to go on the property, as for instance when the government takes land and sells it to a private railroad, but the railroad is required to let the public ride). (2) "Public use" means "public benefit," which may be derived by the government's selling it to a private developer whose development will (the government thinks) help the public.
So here's the question: Which reading of "public use" is most consistent with the generally conservative-libertarian notion that regulation can become a "regulatory taking"? When regulations deny you all right to use your land, for instance, and you claim that the government has "taken your property" -- in the sense of taken your right to exploit the property, which is part of your proprty rights -- "for public use," which meaning of "public use" would you be using?
It seems to me that the answer is not "public ownership or access." The government, after all, isn't taking the property so that the public can own it or access it. Nor is it taking it so that some private third parties can own it or access it. The only person who owns it or can access it is still you. Under the "continuous ownership or access" model, the regulation is neither a taking for public use nor a taking for private use. It sounds like it's not a taking at all, and you're thus entitled to no compensation.
But the "public benefit" model fits regulatory takings well. If the government stops you from developing your parcel in order to serve public environmental or esthetic goals, then it's taking your right to exploit the property in order to provide a public benefit, and thus you're entitled to compensation. Lucas in fact took this very view: Such regulations should be seen as takings because they "carry with them a heightened risk that private property is being pressed into some form of public service" (emphasis added).
So it seems to me that if the regulatory takings theory is sound, and regulations that make land nearly worthless should be treated as similar to physical takings, "public use" in the Takings Clause needs to be read as "public benefit." The question then becomes: Is it proper to read "public use" as "public benefit" for one kind of takings, and "continuous public ownership or access" for another?
Perhaps the answer is yes: Maybe the regulatory takings theory isn't really a textual interpretation of the Takings Clause, but rather a necessary backstop developed in order to avoid end-runs around the Clause; since its role is functional rather than textual, then some of the textual limitations on the Clause may be dispensed with. Or perhaps the answer is that the critics of regulatory takings doctrine (mostly liberal, I think) are right, and regulation should never be seen as a taking (again, perhaps unless it interferes with the right to exclude the public), even if it strips the owner of nearly all the value of his land.
Or perhaps there's some other explanation still. But it seems to me that if one does support the regulatory takings doctrine as part of the broader takings doctrine, and one thinks that it should be read consistently with the text of the clause -- which is to say that the text of the clause should be read consistently for regulatory takings and possessory takings -- then it seems to me that the Kelo majority's "public benefit" model is stronger than the dissents' "continuous public ownership or access" model.
Roguish Lawyer
06-30-2005, 15:10
why Kelo wasn’t such a surprise
I know more than a little about public use law, because John Eastman & I co-authored an amicus curiae brief in Kelo for the Claremont Institute’s Center for Constitutional Jurisprudence. I have a few reactions to the outrage against the Supreme Court’s decision in Kelo, which people can consider for what they’re worth.
First, anyone who’s outraged by the result needs to understand that the law went south more than 50 years ago. In a 1954 case called Berman v. Parker, the Supreme Court gave local governments broad power to use "blight" as a rationale to redistribute private property, and suggested in the process that the Public Use Clause was a dead letter. My sense is that, by the 1970s and 1980s, local governments had gotten so accustomed to deference that they stopped using blight and started citing economic development by itself. Kelo just ratified that development.
To be sure, it’s a little more egregious when the city kicks an owner out purely to generate more revenue than when it does so on the pretext that the owner’s land is blighted because it doesn’t have a 2-car garage. But anyone who’s mad about Kelo should have been mad about Berman. I guess Kelo’s different because it’s a new decision, because condemnation is more prevalent now than it was in 1954, because pro-property groups are better organized now than then, and -- most of all -- because in Kelo the Supreme Court issued a holding that everyone can understand without complicating issues like "blight."
silver linings after Kelo
Also, as awful as I think the Kelo decision is, I think there are some good things for interested readers to focus on.
First, I think the case will galvanize public-use litigation even though New London won. Kelo was expected to lose 7-2 or 8-1, but the decision was 5-4, and with really strong dissents by Justices Thomas and O’Connor, and a concurring opinion by Kennedy that gives litigants some useful pointers how to win the next case. I think most land-use lawyers and most state courts will see the closeness of the case as a sign to reconsider public-use law seriously.
Second, in his dissent, Justice Thomas made it respectable to go back to the original meaning of "public use" -- government property like courthouses and roads, or property owned by utilities with a duty of access to the public. Thomas also said that the Founders regarded property as a "fundamental, natural right."
Third, and most important, Kelo made it crystal-clear that it’s a risky business to expect federal-court judges to defend property rights. It’s not enough to armchair-criticize a court opinion; citizens who want to protect their rights need to organize locally. Ironically, by losing, Kelo may end up doing property rights more of a favor -- by galvanizing ordinary citizens to support efforts to redraft state state "blight," "economic development," and "TIF" laws. These are the laws that give local governments to condemn land and assign it to businesses or local developers. These laws usually are quite open-ended, and they usually signal to state courts that the courts ought to defer to local findings that condemnations are necessary. Practically, I don’t think public-use law will ever be able to fix the abuse; what is needed is state legislation that (a) sets clear and agreed-on criteria saying when it is appropriate to use eminent domain, (b) requires courts to review local determinations independently, and (c) requires local governments to consider what impact proposed condemnations will have on property rights.
Anyone who’s interested should consult the Claremont Institute’s Center for Local Government, which is active in these things.