Thursday :: Jun 23, 2005

The Law Makes For Strange Bedfellows


by pessimist

Did you feel the Earth shaking violently this afternoon? You should have! It was a major disruption in the space-time continuum, caused by the realization that the generally progressive me agreed with the traitorous SCOTUS bloc - William Rehnquist, Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas - which illegally coronated King George in 2000.

What brought about this inversion of life in this universe as we once knew it? The New London Decision! [PDF]


Supreme Court Leaves Homeowners Vulnerable To Tax-Hungry Bureaucrats & Land-Hungry Developers

Today, the U.S. Supreme Court delivered a blow to home and small business owners throughout the country by allowing the government to use eminent domain to take homes so that businesses can make more money off that land and possibly pay more taxes as a result. With the final vote of 5-4, the United States Supreme Court ruled on Thursday that a city government can seize people's homes and businesses for any lawful purpose including private development.

It’s a dark day for American homeowners. While most constitutional decisions affect a small number of people, this decision undermines the rights of every American, except the most politically connected. Every home, small business, or church would produce more taxes as a shopping center or office building. And according to the Court, that’s a good enough reason for eminent domain.”
- Dana Berliner, senior attorney with the Institute for Justice, A Non-Profit Libertarian Public Interest Law Firm.

And we had doubts that King George would find a way to pay off the Federal debt after cutting taxes for the very people who will benefit from this ruling!

Note the party registration of this Connecticut legislator - in whose opinion I concur:

"I'm concerned that some cities will treat this as a license to steal and will become even more aggressive in taking private property to give it to a preferred developer."
- Connecticut House Minority Leader Robert Ward, R-North Branford.

I don't often agree with Republicans, but when they are correct I will clearly say so. Ward is correct.

But I digress.

Kicked Off The Reservation

In Catch 22, Joseph Heller created Chief White Halfoat. Chief, the Native American chief intelligence officer who can neither read nor write, was forcibly evicted with his family when oil was struck on their land. As we all know from the current news reports, oil has rarely been worth more than it is now. Oil represents big money, and big money is what drives the eviction of these residents from their homes:


Supreme Court rules against property owners

Homeowner Susette Kelo and others petitioned the Supreme Court in the case, arguing that the city has no right to take their property except to build projects for explicit public use like roads or schools.

I was in this battle to save my home and, in the process, protect the rights of working class homeowners throughout the country. I am very disappointed that the Court sided with powerful government and business interests, but I will continue to fight to save my home and to preserve the Constitution.”
- Susette Kelo, one of the homeowners challenging eminent domain abuse

The case's wheels were set in motion in 1998 when pharmaceutical giant Pfizer Inc. agreed to build a $270 million research facility next to the area in dispute. The New London City Council later adopted a redevelopment plan to transform 90 acres of the targeted neighborhood.

"This case was never about the taking of property from one person and giving it to another. This case was not some type of a land grab. This case was about New London, its six square miles and its economic survival."
- New London City Attorney Thomas J. Londregan

The City Council then transferred power of eminent domain to a private, nonprofit group of residents and business owners called the New London Development Corp., which seeks to build a hotel complex, conference center, offices and other structures.

Supreme Court Rules It Is Legal for Cities To Seize Homes

"Promoting economic development is a traditional and long-accepted function of government," Justice John Paul Stevens wrote for the majority, adding that local officials are better positioned than federal judges to decide what's best for a community.

Oh?

"With today's decision, no one's property is safe. Any time a government official thinks someone else can make better use of your property than you're doing, he can order it condemned and transferred." - Roger Pilon, director of the Center for Constitutional Studies, at the Cato Institute

I don't often agree with the Cato Institute either, but I digress.

Stevens said New London could pursue private development under the Fifth Amendment, which allows governments to take private property if the land is for public use, since the project the city has in mind promises to bring more jobs and revenue.

Considering the numerous reports of layoffs -

GM and Ford and Winn-Dixie and Bath Iron Works and Northwest Airlines and Boeing and all over Kansas and the entire nation; Napa might be putting cops on furlough, Detroit is laying off EMTs, and Amityville was horrified to discover that their hospital staff was reduced; Alliant and Mittal Steel and Broyhill Furniture and Hewlett-Packard and Trane and the Fairbanks North Star Borough School District are also reducing staff

- maybe this illogical pie-in-the-sky aproach is supposed to finally bring about the oft-promised Bu$hCo economic boom, which should quickly be killed off when the refineries switch production to heating oil about the time of Labor Day (ironic, no?) and gas prices zoom higher than ever.

But I digress. We were talking about kicking people out of their homes to benefit already-wealthy corporations:

Stevens was joined in his opinion by other members of the court's liberal wing -- David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, as well as Reagan appointee Justice Anthony Kennedy, in noting that states are free to pass additional protections if they see fit.

“I was disappointed at today's ruling by the Supreme Court on eminent domain. The Fifth Amendment allows governments to exercise eminent domain or the taking of private property for public use. This ruling now determines that economic development is a public purpose, however; it is up to each individual state to define the meaning of economic development.”
- Georgia State Senator Eric Johnson of Savannah

The 5-4 decision means that homeowners will have more limited rights. Still, legal experts said they didn't expect a rush to claim homes. "The message of the case to cities is yes, you can use eminent domain, but you better be careful and conduct hearings," said Thomas Merrill, a Columbia law professor specializing in property rights.

But as this next article reports, cautious progress in eminent domain proceedings isn't necessarily going to be the case:


Supreme Court Rules Cities Can Seize Homes and Businesses for Private Development

More than 90 homes in the Fort Trumbull neighborhood affected by the high court’s ruling have already been seized and bulldozed by the city. Many of the homes were built in the Victorian era. About ten homes and small businesses have remained. The ruling clears the way for these last homes and businesses to be destroyed.

Neighborhood organizer Kathleen Mitchell, who was instrumental in the residents’ struggle to fight the city’s eminent domain efforts, called the decision the death knell for thousands of homes and small businesses across the country. Mitchell said:

“The government has just given developers the right to destroy entire neighborhoods for their own profit.”
The ruling will have far-reaching affects. More than 10,000 properties nationwide have been threatened by eminent domain or actually condemned in recent years, according to Scott Bullock of the Institute for Justice, the Washington public interest law firm that represented the New London homeowners.

Georgia State Senator Eric Johnson said the state senate would now have to revisit tabled legislation that would have eliminated the ability of governments to use eminent domain for private economic development “and use whatever wiggle room we have to protect the rights of private property owners."

But this may prove to be an exercise in futility, considering the following:


Supreme Court rules cities may seize homes

"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," Justice John Paul Stevens wrote.

Stevens was joined in his opinion by other members of the court's liberal wing -- David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. The bloc typically has favored greater deference to cities, which historically have used the takings power for urban renewal projects that benefit the lower and middle class. They were joined by Reagan appointee Justice Anthony Kennedy in rejecting the conservative principle of individual property rights.

I really hate to say this, but the actions of these Justices today only plays into the conservative stereotype of clueless liberals. It's going to take years to overcome this fiasco!

Speaking of fiasco, ...

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. 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.

"It was the worst decision that I've ever had to make in my life, but I am charged with doing what's best for the 26,000 people that live in New London. That to me was enacting the eminent domain process designed to revitalize a city that's only six and a half square miles, with no where to go."
- State Rep. Ernest Hewett, D-New London, former New London mayor and member of the city council who voted in favor of eminent domain.

I have to wonder just who is going to be travelling to New London to see these attractions. With all of the layoffs I cited above, and the dozens more I didn't, one has to wonder how New London will attract enough tourism to justify the abuse of its citizens. Other cities are looking on with interest:

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.

Critics had feared that [a finding against the city] would allow a small group of homeowners to stymie rebuilding efforts that benefit the city through added jobs and more tax revenue for social programs. 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.

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.

"Today's decision is simply the latest in a string of our cases construing the public use clause to be a virtual nullity, without the slightest nod to its original meaning." - Justice Clarence Thomas, in a separate dissent which states that the court's ruling erases the public-use clause from the Constitution.

I slightly agree with 'Uncle' Thomas, based on the following:


Court widens scope of property seizure

Government officials do not violate the US Constitution when they seize and demolish homes and businesses to make room for private development. The Constitution's Fifth Amendment says that private property may be taken by the government if fair compensation is paid to the owner.

But there is a second requirement: The property may be taken only if it is for "public use." Such public uses include a public highway, public school, or military base. Public use also includes the taking of property for privately owned businesses such as railroads, power companies, and other firms that need contiguous land to offer regulated services to the public. Elimination of urban blight has also been identified as a public-use taking.

In a major decision that narrows the constitutional protection of property owners, the US Supreme Court ruled Thursday that the Fifth Amendment's Takings Clause authorizes government seizure of private property even when it merely offers a benefit to the public, rather than actual public use. Writing for the majority, Justice John Paul Stevens said that a century of case law interpreting the Takings Clause "dictates" that the court adopt a permissive interpretation of the government's eminent-domain power. The 5-to-4 decision means that state and local officials can continue to use the government's power of eminent domain to take private property and turn it over to a private builder as a form of economic development.

"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."
- Justice John Paul Stevens, writing the majority opinion backing New London's authority to use eminent domain.

The precise issue before the Supreme Court was whether a privately owned development project amounts to a "public use" of the homeowners' former properties. City officials said the riverfront project was necessary to boost New London's sagging tax base, and thus it qualified as an economic development project, justifying the city's use of its eminent domain power. Residents countered that the project was a land grab since their property was being turned over for $1 a year to a private developer who would retain all profits from the completed project.

The benefit to the city was an anticipated boost to local tax rolls.

Who from - the corporations moving in at almost no expense? PUH-LEEZ!

What He Say!

I try not to use the opinions of other bloggers unless the opinion says something better than I can. This blogger accomplishes that qualification:


Supreme Court Delivers Blow to Property Rights

This ruling makes me queasy. I don’t like the idea that a city can just take my house because a developer wants to build a hotel where I happen to live.

Clearly, the Constitution allows the government to take property with due compensation for “public use.” But that has traditionally meant seizing property for the building of roads and public buildings and such. Taking property for private development is a pretty big leap and seems, well, wrong.

Interestingly, the four Justices who dissented (O’Connor, Scalia, Rehnquist and Thomas) are considered the most conservative of the Court’s justices. And yet their rationale was very populist in nature. O’Connor, in her dissent said:

"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’s my fear exactly. This ruling permits wealthy developers to use city levers to do pretty much whatever they want.

Developers already wield a good deal of political power and now the opportunity to abuse that power is greater than ever.

I’m generally a big fan of development but not at the expense of people’s private homes and businesses. If someone doesn’t want to sell to a developer, the city shouldn’t be able to force them.

This is not a positive ruling.

Some elected officials do recognize this fact:

"Their opinion obviously upholds the fact that economic development is considered a public use. I'm glad for the city because now the city can move forward with development. But, I feel very sad for the people whose homes are there and now will sell their properties and move on."
- State Sen. Andrea Stillman, D-Waterford, whose district includes New London.


High Court Decision Divides New London

On Bill Von Winkle's side of town, word of the Supreme Court decision spread like the news of a passing relative. His cell phone rang incessantly. "Hello," he answered. "Yeah, we lost. I know, hard to believe, huh?"

No sooner had he hung up the phone than his letter carrier walked by. "Need a hug?" he asked.

Von Winkle is one of seven homeowners who learned Thursday that the city's plan to demolish their working class neighborhood in the name of economic development is constitutional. "I spent all the money I had to buy these properties," said Von Winkle, a former deli owner who lives in the neighborhood and owns two other rental homes. "They were not inherited. They were not a gift. I sold sandwiches to buy these properties. It took 21 years."

"The U.S. Supreme Court destroyed everybody's lives today, everybody who owns a home," said Richard Beyer, who owns two rental properties in the once vibrant immigrant neighborhood that has largely been reduced to swaths of rutted grass. "This was America."

On the other side of town, city leaders cheered the decision, calling it a victory for cash-strapped cities that want to spur redevelopment. The holdouts and their 15 homes were all that stood in the way of plans to build a hotel, office space and upscale homes. "This case makes New London look good and you should be proud to live in New London," said the city's attorney, Wesley Horton, who argued the case before the high court.

The Stacked Deck After The Cut

The court decision may have settled the eminent domain issue but it did little to bring city officials and the holdouts and closer together. It was clear Thursday that the two sides had very different opinions about what the future holds. "Nothing changes. I'm not going anywhere," Von Winkle said. "We've got new suits for 'em. We're meeting with the attorneys Wednesday and I'm sure we'll come up with something."

New London City Manager Richard Brown said he knows there will be more lawsuits over the project or the money, but said the land fight is over. He doesn't expect a showdown between bulldozers and residents. "There may have been lines drawn in the sand, but the Supreme Court decision effectively ends the eminent domain process," he said. Tying up the legal loose ends could take a few months, Horton said, but the city will be ready to take the property this fall.

"My heart goes out to the people that have to move. Now I've been validated to know that we did the right thing. This is awesome."
- State Rep. Ernest Hewett, D-New London, former New London mayor and member of the city council who voted in favor of eminent domain.

The city has budgeted $1.6 million [about $100,000 each - ed] to pay for the 15 homes. Von Winkle said has been told he will get $638,000 for his three houses. Von Winkle figures that's not even close to fair. He owns the homes mortgage-free and says he earns about $120,000 a year in rent.

Matthew Dery, who lives in one of four houses on a compound his family has owned since 1901, has said money isn't the issue. He simply isn't leaving. Ditto for Susette Kilo, whose porch overlooks the Thames River just yards away.

I wish them luck. They're playing strip poker without any of the face cards in their hands:

The Court simply got the law wrong today, and our Constitution and country will suffer as a result. One of the key quotes from the Court to keep in mind today was written by Justice O’Connor: ‘The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.’ With today’s ruling, the poor and middle class will be most vulnerable to eminent domain abuse by government and its corporate allies.
- Scott Bullock, senior attorney for the Institute for Justice

This ruling appears to be the key to unlocking a horde of eminent domain proceedings on hold across the country:


Supreme Court Leaves Homeowners Vulnerable To Tax-Hungry Bureaucrats & Land-Hungry Developers

Before it was improper for the government and cities to seize property unless the project they were taking was for a clear public use or benefit such as schools, freeways and road or to revitalize an urban area.
Cities can now buy property at the minimum price and turn-around and sell it to/as developers at a higher price.
Cities can be influenced by wealthy businesses that want to make higher profits and can afford large donations to candidates. Especially in cities, like Mesa, and towns that are rapidly rebuilding areas.


Supreme Court Rules for Eminent Domain

The decision has been closely watched in Brooklyn and Queens, where the city has reserved the right to use eminent domain to tear down private homes and businesses to build an arena for the Nets and a development near a new Mets stadium.


Supreme Court: Cities may seize homes

Developers and legal counsel in the Tampa Bay area have been closely watching the case. Robert H. Buesing, an attorney with Trenam Kemker Scharf Barkin Frye O'Neill & Mullis PA in Tampa, questioned if it is really a public purpose to take a non-blighted piece of property for a different private end use. "Here in our community the city of Temple Terrace has threatened condemnation against many successful businesses located within a 'redevelopment' called Town Center along 56th Street. And developers working closely with the city of Tampa have threatened condemnation proceedings against owners of property in the way of redevelopment of Tampa Heights," Buesing wrote.


Supreme Court ruling may affect Downtown development

In Memphis the first immediate implication is a proposal to redevelop a huge swath of the bluffs facing the Mississippi River; tearing down public and private buildings and creating a grand promenade park. The plan was developed by the Riverfront Development Corp., and approved by the Memphis City Council.

The Supreme Court ruling now gives the city attorney another tool in dealing with those opposed to the promenade, says Benny Lendermon. "It's incredibly important nationwide," says Lendermon, president of the RDC. "Many large metropolitan areas are going through financial crises right now. This gives them more flexibility to pursue economic development. We developed a plan for the best use of the property."

Others do not agree. Many property owners have resented pressure to sell. A common complaint is that when an owner doesn't sell they get harassed by building and safety inspectors. The Supreme Court may have made the process easier for developers.

Friends For Our Riverfront, a group of concerned residents and heirs to the promenade land, has opposed the RDC's plans to use private development, such as tall office towers, to pay for public improvements to the promenade. FFOR members have long suspected that the RDC would use eminent domain to acquire the land if the heirs could not reach a consensus. "Why pay when you can just take it?" says John Gary of FFOR.


Land grabs ruffle feathers in Triangle

Over the years, North Carolina communities have used eminent domain condemnation to claim properties for public roads and even for public facilities. In two high-profile development projects, officials with both the Triangle Transit Authority and the city of Raleigh are invoking eminent domain to forcibly buy land needed for rail lines, transit stops and a new convention center.

George Autry, a lawyer with Cranfill, Sumner & Hartzog in Raleigh, looks forward to Supreme Court clarification on the issue, especially given the increased use of eminent domain in this market. "There's not been much urban redevelopment that would spawn case law," he says of the Triangle. "But it's beginning to happen, like with downtown Raleigh's urban renewal plan."

Before condemning a property, local governments try to negotiate a purchase price. If a price cannot be agreed upon, the land may be condemned, upon which the government sues and takes the property at the stipulated price unless it loses in court.

Just this month, the city of Durham began tearing down the dilapidated Heart of Durham motel - a property it bought after suing in the wake of eminent domain condemnation.


Supreme Court: Cities may seize homes

The Hollywood City [FL] Commission's records show their "acquisition of private property through negotiated conveyance or eminent domain serves a public purpose and is necessary to rehabilitate and redevelop a blighted area and to preserve and restore the historical components of the Great Southern Hotel."

However, developer Charles "Chip" Abele has been seeking for nearly a year to buy a property David Mach has indicated he refuses to sell for sentimental reasons - his father reportedly bought it decades ago. "Not everyone can be bought," Mach is quoted as saying. "We don't want to be bought."

Mach, owner of the property on Harrison Street and South 19th Avenue, is quoted in the media as arguing developers wanting to build in the area near Young Circle don't need incentives anymore. The Commission's resolution authorized the city community redevelopment agency to initiate eminent domain proceedings, retain expert witnesses and consultants and "take further actions that are reasonably required to acquire the property."

Although the Court ruled against us, I am very proud of the fight we waged for my family and for the rights of all Americans. I am astonished that the Court would permit the government to throw out my family from their home so that private developers can make more money..”
- Mike Cristofaro, one of the homeowners, whose family has owned property in Fort Trumbull for more than 30 years

Criminal Courts?


Cities can seize land for private developments: U.S. top court

The U.S. Supreme Court has ruled that local governments may take people's homes and businesses against their will to make room for private developments such as shopping malls and hotels. Justice John Paul Stevens, who wrote for the majority in the court's ruling, said local officials know better than federal judges whether a development project will benefit a community. Stevens said states could pass extra laws to restrict developments and protect individual property rights.

The majority and the dissent both recognized that the action now turns to state supreme courts where the public use battle will be fought out under state constitutions. Today’s decision in no way binds those courts. This is a terrible precedent that must be overturned by this Court, just as bad state supreme court eminent domain decisions in Michigan and Illinois were later overturned by those courts. The Institute for Justice will be there every step of the way with homeowners and small businesses to protect what is rightfully theirs.”
- Chip Mellor, the president of the Institute for Justice

The People-less Court

"The 5-4 split and the nearly equal division among state supreme courts shows just how divided the courts really are. This will not be the last word.”
- Scott Bullock, senior attorney for the Institute for Justice

This could fill the schedule of Court TV!


States' Rights?

State supreme courts have been divided on the public-use issue. Eight have ruled that private economic development does not amount to a public use and have barred condemnations in such cases. They are Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, South Carolina, and Washington.

Six state high courts have ruled that private economic development projects are a public use. Those states are Kansas, Maryland, Minnesota, New York, North Dakota - and Connecticut.

In March 2004, the Connecticut Supreme Court ruled that the New London project was a public use because it is aimed at bringing higher tax revenues and jobs to the economically depressed city. The state high court employed an expansive reading of the term. Public use can mean "public usefulness, utility, or advantage, or what is productive of general benefit," the state high court said.

The ramifications of this 'ruling' are dooming the country in a manner similar to that of the 1886 SANTA CLARA COUNTY v. SOUTHERN PAC. R. CO. ruling - the one which was interpreted as granting to corporations rights identical to those of individuals, which opened the legal door to today's ruling.

If individuals were able to raise the same kind of funds that corporations can, then the playing field would be level. But since the Civil War, corporate interests have had the undisputed upper hand, losing it through overconfidence in themselves and their system only during the Great Depression until Franklin Roosevelt got the country running well enough again for them to see a financial interest and design to retake 'what was theirs'.

I have to say that the Court's 'liberals' should be seriously ashamed of themselves. They were badly mistaken that they were making the right choice.

I hope they sleep well from now on. The rest of us cannot, thanks to their foolishness.


Kelo et al v. City of New London, 04-108 [PDF].


Uncited quotes taken from the following sources:

Reaction to Thursday's U.S. Supreme Court eminent domain decision

Supreme Court Leaves Homeowners Vulnerable To Tax-Hungry Bureaucrats & Land-Hungry Developers

Supreme Court Rules Cities Can Seize Homes and Businesses for Private Development

Supreme Court rules against property owners

Court widens scope of property seizure


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