The Kelo Amendment: Protect Homes, Not Flags

Even Stevens . . .

2005-08-26T08:19:00.000-04:00

. . . is unhappy (kind of) with the Kelo decision, which he drafted:
It is not every day that a Supreme Court justice calls his own decisions unwise. But with unusual candor, Justice John Paul Stevens did that last week in a speech in which he explored the gap that sometimes lies between a judge's desire and duty.

John Paul Stevens at an American Bar Association meeting this month in Chicago,
where he was critical of the death penalty. Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term's decisions,
including his own majority opinions in two of the term's most prominent cases.

The outcomes were "unwise," he said, but "in each I was convinced that the law
compelled a result that I would have opposed if I were a legislator."
In one, the eminent domain case that became the term's most controversial decision, he said that his majority opinion that upheld the government's "taking" of private homes for a commercial development in New London, Conn., brought about a result "entirely divorced from my judgment concerning the wisdom of the program" that was under constitutional attack.
His own view, Justice Stevens told the Clark County Bar Association, was that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." But he said that the planned development fit the definition of "public use" that, in his view, the Constitution permitted for the exercise of eminent domain.

Battle in Arizona

2005-08-15T12:55:00.000-04:00

This:
Tempe this week will try to convince a judge that the city should be
allowed to take immediate possession of land from 13 property owners to build a
$200 million mall.

People Still Care

2005-08-04T10:24:00.000-04:00

Good news in USA Today:

States across the country are rushing to pass laws to counter the potential impact of a U.S. Supreme Court ruling in June that allows state and local governments to seize homes for private development.

Dean's Dishonesty about Kelo

2005-07-31T20:56:00.000-04:00

It's hard to imagine a more dishonest account of why Kelo happened than this one from Democratic Chairman Howard Dean:

After asking the students to donate money to the Democratic National Committee, Dean said "one of the biggest problems in this culture of corruption that the Republicans brought to Washington, is they sold our government to the highest bidder.

"If we want it back, we'll have to buy it back," Dean said.

He also said the president was partly responsible for a recent Supreme Court decision involving eminent domain.

"The president and his right-wing Supreme Court think it is 'okay' to have the government take your house if they feel like putting a hotel where your house is," Dean said, not mentioning that until he nominated John Roberts to the Supreme Court this week, Bush had not appointed anyone to the high court.

Dean's reference to the "right-wing" court was also erroneous. The four justices who dissented in the Kelo vs. New London case included the three most conservative members of the court - Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas. Justice Sandra Day O'Connor was the fourth dissenter.

The court's liberal coalition of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer combined with Justice Anthony Kennedy to form the majority opinion, allowing the city of New London, Conn., to use eminent domain to seize private properties for commercial development.

"We think that eminent domain does not belong in the private sector. It is for public use only," Dean said.

If Dean really wants to protect property, he needs to convince his fellow Democrats that this is a wise idea, not falsely blame Republicans for the results of a liberal jurisprudence.

More Bad News in San Diego

2005-07-19T08:30:00.000-04:00

This:
San Diego redevelopment officials are using the threat of taking private property to compel a laundry business in Little Italy to negotiate selling its land to make way for a condominium and retail project.
The board of the Centre City Development Corp., the city's downtown development agency, voted unanimously last week to give the owners of Alsco, a linen and uniform laundry with 150 employees, a month to reply to the demand.

Your outrage matters

2005-07-12T16:02:00.000-04:00

The latest in Connecticut:
Democratic leaders of the General Assembly on Monday urged municipal leaders not to use their eminent domain powers until the legislature has time to consider changing the state's laws on seizing property.
The state lawmakers said they want time to thoroughly examine the issue in the wake of last month's U.S. Supreme Court ruling that found New London had the authority to takes homes in the Fort Trumbull neighborhood for a private development project.

Response to Kelo

2005-07-11T19:29:00.000-04:00

The Washington Times has this report on the legislative response to Kelo.

Another One Bites the Dust

2005-07-07T09:46:00.000-04:00

Bad news from Monrovia:
Despite the pleas of a local landowner, the City Council voted
unanimously to initiate eminent domain proceedings on an auto- shop yard in the city's southeast.
. . .
"This is a very difficult issue for me,' Councilman Dan Kirby said before casting his vote Tuesday . "But I cannot in good conscience let this corner stay as it is, with all those young people living down there, fighting to get ahead just like all the rest of our children do in this town.'
Buller, 67, has owned the corner triple lot at Duarte Road and California Avenue since 1981. The auto yard faces railroad tracks and the crypt at Live Oak Memorial Park. Bougainvillea and bottle-brush trees have overgrown a chain-link fence
that hides the yard from the street.
Buller, who lives in San Dimas, said he turned down three previous offers from the city because he needs the space to
store cars he works on in his spare time. He also has a mechanic and smog-test business as tenants.

Ms. Kelo speaks

2005-07-06T19:57:00.000-04:00

She's not giving up:

The U.S. Supreme Court has ruled against them, but a group of New London residents are not giving up the fight to save their homes from development. People living in the Fort Trumbull area say the fight has just begun.

Susette Kelo says, "This started out just to be about me."

When Susette Kelo filed her suit against the City of New London she was merely trying to save her home, protect her property from being seized for development by eminent domain. When all this started Kelo was David the city, Goliath. Now Kelo is the face of a cause.

"Every poor person, every minority, every middle class American is in jeopardy of losing their home."

Late last month the U.S. Supreme Court ruled against Kelo, ruled the city could take her home and others in this neighborhood, for development which it says would benefit the entire community. You might think a Supreme Court decision would be the final chapter. But Kelo doesn't think that way.

"We're gonna go to the House of Representatives in Washington, we're gonna legislate in the legislature in the State of Connecticut, we're gonna continue to fight."

In her letter to the editor today, Susette Kelo says when the developers come here, quote, “I will chase them from my property. We will not leave our homes. We have not yet begun to fight.”

"It's pretty tough to do all this work, and continue with your life and work full-time jobs and everything else."

But Kelo won't quit now, won't even think of it. After all, she says this is not about money, it's not about principle, it's about something much more basic.

"I'm just a simple person, just trying to keep their home."

News Channel 8 asked Susette Kelo what she thinks about being the face of cause for people around the nation. She says she never really looked at it that way but she's happy to have the support from all those people, she says that has re-invigorated her as far as fighting her fight.

Proposed Amendment for Tennessee

2005-07-06T19:54:00.000-04:00

State Sen. Mae Beavers writes:

At least eight states forbid the use of eminent domain for economic development unless it is to eliminate blight. Other states either expressly allow a taking for private economic purposes or have not spoken clearly to the question.

What about Tennessee? Could your property be taken for economic development?

We have already seen several occasions in Tennessee where private businesses have been taken to make way for private development that would bring in more tax money.

It is my intention to file a Constitutional Amendment to make sure that this does not happen in Tennessee in the future. The Constitutional Amendment is only one way to protect your rights. This route would take longer since it has to pass two legislatures.

More immediately, I intend to make sure that the laws are written in such a way that your local government cannot infringe on your individual property rights by taking your property for economic development.

In a newspaper article written by James Madison in 1792, one of our founding fathers expressed his thoughts on property rights: “If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property.”

It is shocking to see what has happened in this country. It is more than shocking to believe that you could lose your home to private developers.

The law has always allowed government to seize land for the public use. But would our Founding Fathers have considered high-end condos and big end stores owned by private corporations “public”?

IJ to Appeal Norwood, Ohio Case

2005-07-06T13:58:00.000-04:00

The fight continues:

Less than two weeks after the U.S. Supreme Court ruled that eminent domain for private profit is constitutional under the U.S. Constitution, the Institute for Justice will ask the Ohio Supreme Court to accept a case that could rein in eminent domain abuse and protect Ohio homeowners under state law.

“With this case, the Ohio Supreme Court has a prime opportunity to do what the U.S. Supreme Court refused to do—protect home and small business owners from eminent domain abuse,” said Bert Gall, an attorney with the Institute for Justice, which is representing the Norwood property owners for free. “The U.S. Supreme Court said states are free to provide greater protection to their citizens, and given the way Ohio cities have shamelessly abused the power of eminent domain, the state’s highest court should do just that.”

IJ will file papers today asking the state’s High Court to review a decision by the Hamilton County Court of Appeals that said it was okay for the City of Norwood to condemn Carl and Joy Gamble’s home of 35 years—along with the rental home owned by small businessman Joe Horney—so private developer Jeffrey Anderson can add new chain stores, condominiums and office space to his $500,000,000 real estate empire.

The Protest

2005-07-06T13:55:00.000-04:00

Good description of the protest in New London here:

More than 300 protesters from as far away as Maine and New Jersey packed the steps of City Hall and spilled onto State Street Tuesday to voice their opinion of eminent domain.

It wasn't good.

Ted Whittenkraus of Wells, Maine, said he came not because “this decision affected everyone in the country who owns property.”

“It devalued everyone's property,” Whittenkraus said. “It tore the Constitution apart; it's in as bad a condition as that flag at the top of the building there.”

He pointed to the dirty, tattered American flag flying on top of City Hall.

“That's in shreds. It's a disgrace,” he said.

Whittenkraus, 56, also pointed out that the median age of the crowd probably hovered somewhere around 40. There was a lot of white hair and balding heads in that angry sea of shouting people.

“If you look around, these aren't your typical protest people,” he said. “These are adults. We're not here because mom and dad are supporting us while we write our thesis on what's wrong with the country. We're middle class Americans who have jobs to go to and families to support and we care very deeply about this.”

Among them were brothers John and George Mytrowitz of the Mulberry Street Coalition of Newark, N.J., who said they are facing the loss of their family business, an auto body shop that's been in the city for 92 years, to eminent domain.

“They want to take it away and give it to a developer who's connected with city hall officials,” George Mytrowitz said.

“A convicted drug felon, also,” John added.

“They want to take it away and give it to him, and I guess they're all going to get rich off of everybody else's property,” George said.

“We're here in support of Susette Kelo,” John said, “and of anybody that's being abused by this plague of eminent domain across the country.”

Debbie Montgomery of East Haddam said she came not because she faced any such action in her town, but to support the cause.

“I'm here because I'm a new homeowner,” she said. “It took us two years to build our home. And I think I would just be devastated if they came through and said we're going to take your house just because we can.”

“I am here for the same reason,” said Karen Goyette of Danielson. “This whole situation makes me very angry, and we have to stand up for what is ours. Simple. This is America, things like this are not supposed to happen.”

Bill Downie of Oakdale was one of several people who carried bright yellow flags depicting a serpent with the words “Don't tread on me,” modeled after the flag carried by Colonists in the Revolutionary War.

“I think we were fighting against a country back then that's not even as tyrannical as our own country is right now,” Downie said. “I'm sure our founding fathers are rolling over in the grave, because that wasn't their intent to have something like this happen.”

Ted Loebenberg of Providence, a friend of one of the families in the Fort Trumbull neighborhood, said he came to support the family, but not for that alone.

“This doesn't stop any city government from taking whatever they want,” Loebenberg said. “They just did it in Rhode Island. They took a gentleman's farm that had been in his family for 40 years because Fidelity wanted to expand their commercial property.”

Steve Pudlow of Norwich said, “This is an issue of what this country was founded on, and if your property can be taken away just because some large corporation or some developer manages to buy a city councilman, no property owner is safe. If a Hooters can pay more taxes, then you can be tossed out to make room for Hooters.”

Ken Smiley of Plainfield was there, he said, because of developer Gene Arganese's plans to build an auto racetrack there has had an impact on his home.

“The result of this is already being felt in Plainfield,” he said. “People have sold their property, thinking, ‘Hey, my property may be taken from me.' That kind of threat scares people all over this country.”

The protesters joined in singing “This Land Is Your Land” and shouting “Let them stay! Let them stay!” for the residents of Fort Trumbull.

John Fitzpatrick of Westmoreland, N.H., said he came down for the rally because he did not believe a 5-4 Supreme Court decision was “a mandate to throw people out of their houses.”

“It's almost surreal to me that something like this could happen in this country,” Fitzpatrick said.

Kathleen Maroney of New York City put it another way.

“It's not a New London thing, it's a national thing,” she said. “My great grandparents came to this country as immigrants, worked hard to buy their little houses. The dream is gone. They could take it from you now. The American dream is now shattered.”

But Still Some Hope?

2005-07-06T13:52:00.000-04:00

Efforts in Connecticut:

The top Republican in the state House of Representatives gathered support Tuesday for a bill that would ban eminent domain for economic development projects.

House Minority Leader Robert Ward, R-North Branford, collected about two dozen signatures from House members, including Republicans and some Democrats. All of them support voting on the legislation during a possible summer session planned in the coming weeks to consider bills vetoed by the governor.

Ward's staff said he needs 76 co-sponsors for the bill to be taken up. But Democratic legislative leaders said they are not certain that would guarantee a debate on the legislation. Some Senate Republicans have also said they want a special session.

Gov. M. Jodi Rell, a Republican, announced Tuesday that she supports Ward's efforts to have the General Assembly call itself back into session to deal with eminent domain. Rell has not said whether she would use her powers to call lawmakers back to the Capitol.

New London Pressing Forward

2005-07-06T13:49:00.000-04:00

In today's news:

Some Connecticut residents staged a protest Tuesday night before a city council meeting in New London, Conn.

But council members did not change their minds about a plan to seize private homes to make way for a private development.

The council heard a lot of criticism during a public hearing.

Their decision to take some homes to make room for the private development was the "eminent domain" case that made it all the way to the Supreme Court last month where the judges ruled in the council's favor.

Both Parties Support Property Rights in Texas

2005-07-05T14:57:00.000-04:00

In Texas, both Democrats and Republicans are supporting property rights:

Saying the U.S. Supreme Court erred when it ruled recently that local governments can seize land for private development, Texas lawmakers are rallying around proposed constitutional amendments and other legislation to help prevent such seizures.
Both conservative Republicans and liberal Democrats in Austin said last week that they support the proposals to allow Texans to vote on the issue this November, saying the high court's ruling undermines the fundamental right to own private property.

2005-07-05T11:16:00.000-04:00

Remember how Nancy Pelosi looked like an idiot when she talked about Kelo the other day? People are noticing:

People Craving Liberty on July 4

2005-07-05T11:03:00.000-04:00

This is what our country is all about:
Protestors are using Independence day to make a point about civil liberties.
Some people think freedom is at risk on this fourth of July.
The demonstrators went to the Statehouse to make their claim that citizens are letting government, and the courts, go too far.
Demonstrators at the Statehouse criticized supreme court justices, and a recent decision on eminent domain.

John Tierney on Eminent Domain

2005-07-05T10:58:00.000-04:00

Sad stories from Pittsburgh:

In the 1960's, the bulldozers moved into East Liberty, until then the busiest shopping district outside downtown. Some of the leading businessmen there wanted to upgrade the neighborhood, so hundreds of small businesses and
thousands of people were moved to make room for upscale apartment buildings, parking lots, housing projects, roads and a pedestrian mall.
I was working there in a drugstore whose owners cursed the project, and at first I thought they were just behind the times. But their worst fears were confirmed. The shopping district was destroyed. The drugstore closed, along with the department stores, movie theaters, office buildings and most other businesses.
You'd think a fiasco like that would have humbled Pittsburgh's planners, but they just went on. They kicked out a small company to give H. J. Heinz more room. Mayor Tom Murphy has attracted national attention for his grand designs - and fights - to replace thriving small businesses downtown and on the North Side with more upscale tenants.
The city managed to clear out shops and an office building to make room for a new Lazarus department store, built with $50 million in public funds, but Lazarus did not live up to its name. It has shut down and left a vacant building. Meanwhile, the city's finances are in ruins, and businesses and residents have been fleeing the high taxes required to pay off decades of urban renewal projects and corporate subsidies.
Yet the mayor still yearns for more acquisitions. He welcomed the Supreme Court decision, telling The Pittsburgh Post-Gazette that eminent domain "is a great equalizer when you're having a conversation with people." Well, that's one way to describe the power to take people's property.

Molly Ivins Sides with . . . Scalia and Thomas?

2005-07-04T08:00:00.000-04:00

Yep:

As one who cares a whale of a lot more about personal rights than property rights, let me leap right into the fray over a Supreme Court decision on the side of the property rights advocates, many of whom I normally consider nut balls. But at least they're more in touch with reality than a majority of the Supreme Court.

The justice who nailed this one was Sandra Day O'Connor, bless her. She wrote in dissent: "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result."

Condos in Monrovia

2005-07-04T07:55:00.000-04:00

Distressing:

When Bernard Buller bought an old gas station in Monrovia 22 years ago, the corner lot facing railroad tracks and a cemetery must have seemed like the last place anyone would want to put houses.

But Monrovia has changed. Now, with a decades-long city agenda to upgrade Monrovia's image and property-tax values, and a red-hot housing market, Buller's lot has become a prime development site.

Buller doesn't want to sell his property, at the corner of Duarte Road and California Avenue. But city officials insist they need his lot to improve the whole block. And they're initiating eminent domain proceedings to get it.
...
But he's paid off the mortgage on his property. He relies on his tenants' rent for income. He can't find any other suitable place to work on cars. He just doesn't want to leave.

"I'm dug in there, big time," Buller said. "Everything in this world is not about money. This is my life. This income I have coming in, I need that to live. And what I'm doing with my life is my hobby. I like my life the way it is."

On Wisconsin

2005-07-04T07:52:00.000-04:00

Signs of progress:

Wisconsin Attorney General Peg Lautenschlager says she she will hold four public hearings about the state’s power of eminent domain.

Following the U.S. Supreme Court ruling that allowed the state of Connecticut to seize several homes to build an office complex, Lautenschlager said that she would like to explain Wisconsin’s position on the matter.

“Since the ruling, I have talked to many Wisconsinites who have serious concerns about the implication for homeowners,” she said.

“Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

The Supreme Court decision gave the states great discretion in placing further restrictions on the taking of private property.

No times or dates for the hearings have yet been announced, but Lautenschlager said they will be held in Janesville, Eau Claire, Wausau and Milwaukee.

Action in Rhode Island

2005-07-01T20:25:00.000-04:00

Efforts moving forward:

The Rhode Island House Thursday night approved legislation dealing with the controversial issue of eminent domain is being considered by state lawmakers.

The two bills, passed in the House and sponsored by Rep. Victor G. Moffitt, R-Coventry, target the Big River Reservoir property that Gov. Don Carcieri attempted to take as the site for Rhode Island State Police headquarters. A second R.I. bill deals with the U.S. Supreme's Court's decision on eminent domain.

That measure urges Congress to nullify the High Court's decision last week by amending the U.S. Constitution to fully protect and guarantee private property rights.

Georgia Governor Takes a Stand

2005-07-01T20:22:00.000-04:00

The latest from Georgia:

Gov. Sonny Perdue pledged Thursday that he will do all in his power to ensure that the government’s power to seize property for public use, commonly referred to as eminent domain, is not abused in Georgia.

The issue has come to the forefront after an opinion from the U.S. Supreme Court that a local government could seize private property even though the project would not be publicly owned. Critics have said the landmark case opens the door for governments to abuse eminent domain for projects of private developers, since the Supreme Court determined that such projects are for the public good if they increase the property tax base.

“Nothing in the court’s opinion, however, prevents a state like Georgia from enforcing stronger restrictions on eminent domain than what the Supreme Court is willing to impose,” Perdue said in a statement issued Thursday. “In fact, the court is essentially inviting state governments to become the protectors of property rights. We accept that invitation.”

Another Picture of the Kelo House

2005-07-01T17:06:00.000-04:00

Is Rep. David Obey (D-Wis) Dumb Too?

2005-06-30T20:25:00.000-04:00

Is dumb too harsh a word for this response to the proposed federal legislation:

In opposing a Republican amendment about the issue today, Rep. David Obey (Wis.), ranking Democrat on the House Appropriations Committee, said on the floor today that the decision was "nutty" but that the solution is legislation or a constitutional amendment, not punitive measures.

"The idea that this House, every time we don't like a court decision, should decide that we're not going to allow federal money to be used to enforce that court decision is as nutty as the original court decision in the first place," Obey said. "So I would hope that we would recognize that the Founding Fathers created the system of separation of powers. They created three independent branches of government for a purpose."

What? The federal funding at issue is not funding of the enforcement of any Supreme Court decision. It's funding for the actual development of property. This isn't a punitive measure? Punitive against whom? It doesn't make sense. The Court hasn't ordered the federal government to fund private takings. There is no separation of powers issue. What are the Democrats talking about? Congress controls spending--that's its primary job.

I suppose a cynic would suggest that the Democrats are intentionally making nonsensical noise to avoid having to actually take a firm stand on the Kelo decision.

House Bill

2005-06-30T20:21:00.000-04:00

Representative Gingrey has introduced a version of Cornyn's Protection of Homes, Small Businesses, and Private Property Act of 2005 in the House. Again, this only limits eminent domain abuse in cases involving federal funds. This is only a small percentage of takings.

Pelosi Dodges the Issue

2005-06-30T20:05:00.000-04:00

Is Nancy Pelosi deliberately dense here, or does she really not understand the issue? Democrats are in trouble if this is their response to Kelo. First, she pretends that she thinks Cornyn's bill withholds money from the Court. Then she acts as though a federal restriction on federal spending would violate separation of powers or something. This is really a bad performance for the leading Democrate in the House:

Q Later this morning, many Members of the House Republican leadership, along with John Cornyn from the Senate, are holding a news conference on eminent domain, the decision of the Supreme Court the other day, and they are going to offer legislation that would restrict it, prohibiting federal funds from being used in such a manner.

Two questions: What was your reaction to the Supreme Court decision on this topic, and what do you think about legislation to, in the minds of opponents at least, remedy or changing it?

Ms. Pelosi. As a Member of Congress, and actually all of us and anyone who holds a public office in our country, we take an oath of office to uphold the Constitution of the United States. Very central to that in that Constitution is the separation of powers. I believe that whatever you think about a particular decision of the Supreme Court, and I certainly have been in disagreement with them on many occasions, it is not appropriate for the Congress to say we're going to withhold funds for the Court because we don't like a decision.

Q Not on the Court, withhold funds from the eminent domain purchases that wouldn't involve public use. I apologize if I framed the question poorly. It wouldn't be withholding federal funds from the Court, but withhold Federal funds from eminent domain type purchases that are not just involved in public good.

Ms. Pelosi. Again, without focusing on the actual decision, just to say that when you withhold funds from enforcing a decision of the Supreme Court you are, in fact, nullifying a decision of the Supreme Court. This is in violation of the respect for separation of church -- powers in our Constitution, church and state as well. Sometimes the Republicans have a problem with that as well. But forgive my digression.

So the answer to your question is, I would oppose any legislation that says we would withhold funds for the enforcement of any decision of the Supreme Court no matter how opposed I am to that decision. And I'm not saying that I'm opposed to this decision, I'm just saying in general.

Q Could you talk about this decision? What you think of it?

Ms. Pelosi. It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken. It's an elementary discussion now. They have made the decision.

Q Do you think it is appropriate for municipalities to be able to use eminent domain to take land for economic development?

Ms. Pelosi. The Supreme Court has decided, knowing the particulars of this case, that that was appropriate, and so I would support that.

Resistance in Brooklyn?

2005-06-30T19:59:00.000-04:00

From Brookyln:

It’s not that Frank Yost went out of his way to get involved in the fracas surrounding developer Bruce Ratner’s plans to build a basketball arena and skyscrapers in Prospect Heights.

The maelstrom came to him, so to speak — Yost’s bar, Freddy’s Bar & Backroom, sits in the middle of Ratner’s development site at Dean Street and Sixth Avenue.

Now the building housing the former speakeasy is about to become another Ratner acquisition, but the bar may not sink so quickly.

“We’re talking about, as part of the project, bringing in lots of food establishments and restaurants,” James Stuckey, executive vice president of Forest City Ratner, told The Brooklyn Papers this week. “Doesn’t it make sense for a business like Freddy’s to be relocated back in the project?”

Yost isn’t so sure.

When plans for the 19,000-seat arena and 17 towers of commercial and residential buildings were announced in late 2003, the bar on Dean Street near Sixth Avenue became ground zero for neighborhood opposition to the Ratner plan, quickly becoming plastered over with anti-Ratner literature and fliers decrying its dependence on eminent domain condemnations.

Several anti-Ratner arena events have been held there and members of the project’s opposition regularly meet in the old bar.

. . .
As far as relocating the bar goes, Yost said he’s not sure what to do.

“I haven’t gotten back to them yet. I am speaking with lawyers just to find out what can they do to me,” he said.

“It’s been very difficult to fight off the wolves and do business at the same time,” he said.

Republicans pressing forward with reform in Congress

2005-06-30T19:56:00.000-04:00

It looks like Congress is not going to ignore Senator Cornyn's proposed bill to limit Kelo in cases where federal money is used:

Congressional Republicans are livid about the Supreme Court decision that allows local governments to condemn people's homes to make way for private development.

House Majority Leader Tom DeLay calls it a "horrible decision" that leaves everybody's home at risk.

There's now a move to limit the impact of the ruling. Republicans want to cut off federal funding to any local government that uses the ruling to condemn homes and businesses so they can be replaced by shopping malls or other private development.

House Judiciary Committee Chairman James Sensenbrenner said the federal government's money won't be used "to finance taking somebody's property.

The Next Kelos

2005-06-30T14:33:00.000-04:00

The Institute for Justice is tracking the following:

Cities' Actions Since Kelo

Freeport, Texas

Hours after the Kelo decision, officials in Freeport began legal filings to seize some waterfront businesses (two seafood companies) to make way for others (an $8 million private boat marina), according to the Houston Chronicle.

Lake Zurich, Ill.

Five property owners facing condemnation for private development had asked Lake Zurich officials to hold off until the Kelo decision. The Chicago Tribune reports that City officials are now moving to condemn.

Boston, Mass.

Two days after the Kelo decision, Boston City Council President Michael Flaherty called on the mayor of Boston to seize South Boston waterfront property from unwilling sellers for a private development project. “Eminent domain is one tool that the city can use,” Flaherty told the Boston Globe.

Arnold, Mo.

“Arnold Mayor Mark Powell applauded the decision,” reports the St. Louis Post-Dispatch. The City of Arnold wants to raze 30 homes and 15 small businesses, including the Arnold VFW, for a Lowe’s Home Improvement store and a strip mall—a $55 million project for which developer THF Realty will receive $21 million in tax-increment financing. Powell said that for “cash-strapped” cities like Arnold, enticing commercial development is just as important as other public improvements.

Baltimore, Md. (West Side)

The City of Baltimore is moving to acquire shops on the city’s west side for private development. Ronald M. Kreitner, executive director of Westside Renaissance, Inc., a private organization coordinating the project with the city’s development corporation, told the Baltimore Sun, “If there was any hesitation because of the Supreme Court case, any question is removed, and we should expect to see things proceeding in a timely fashion.”

Baltimore, Md. (East Side)

Baltimore’s redevelopment agency, the Baltimore Development Corp., is exercising eminent domain to acquire more than 2,000 properties in East Baltimore for a biotech park and new residences. BDC Executive Vice President Andrew B. Frank told the Daily Record the Kelo decision “is very good news. It means many of the projects on which we’ve been working for the last several years can continue.”

Newark, N.J.

Newark officials want to raze 14 downtown acres in the Mulberry Street area to build 2,000 upscale condo units and retail space. The Municipal Council voted against the plan in 2003, but then reversed its decision eight months later following re-election campaigns in which developers donated thousands of dollars. Officials told the Associated Press that the Mulberry Street project could have been killed if the U.S. Supreme Court had sided with the homeowners in Kelo.

Lodi, N.J.

Save Our Homes, a coalition of 200 residents in a Lodi trailer park targeted by the City for private retail development and a senior-living community, goes to court on July 18 to try to prevent a private developer from taking their homes. Lodi Mayor Gary Paparozzi called the Kelo ruling a “shot in the arm” for the town. He told the Bergen County Record, “The trailer park is like a poster child for redevelopment. That’s the best-case scenario for using eminent domain.”

Cleveland, Ohio

Developer Scott Wolstein has planned a $225 million residential and retail development in the Flats district. Wolstein has most of the property he needs, but is pleased that Kelo cleared the way for the City to acquire land from any unwilling sellers. If eminent domain is “necessary,” he told the Plain Dealer, “we think this makes it clear that there won’t be any legal impediments.” Previously, city leaders publicly supported Wolstein’s call for eminent domain.

Dania, Fla.

The South Florida Sun-Sentinel reports that Dania Beach City Manager Ivan Pato “expressed joy” over the ruling in Kelo. Dania plans to buy a block of properties for a private development project, and Pato said the city will use eminent domain to oust unwilling sellers. “Unless we expand the city’s tax base … our residents are facing rising taxes on their property,” Pato said. “Redevelopment is the only way we will be able to make ends meet.”

Memphis, Tenn.

The Riverfront Development Corp. is planning a massive, 5-mile development effort, including the use of eminent domain to claim a four-block section from the current owners for a mixed-use development. “[Kelo] definitely gives the city more tools in its tool box for dealing with the legal issues surrounding that piece of property,” RDC president Benny Lendermon told the Commercial Appeal.

Hollywood, Fort Lauderdale and Miramar, Fla.

Broward County officials yesterday cleared the way for new condo and retail development in these three cities. Hollywood residents in the targeted area fear their homes may now be taken for economic development following the Kelo decision. Mayor Mara Giulianti said the City would use eminent domain on a “case-by-case basis” to remove homeowners unwilling to sell.

West Allis, Wisc.

West Allis officials want to “revitalize” the West Allis Towne Center, a shopping mall. If the Supreme Court had ruled in favor of the homeowners in Kelo, officials may not have been able to use eminent domain to claim the mall, West Allis development director John Stibal told the Milwaukee Journal Sentinel.

Volokh Raises a Good Point, But . . .

2005-06-30T14:03:00.000-04:00

This is for all of you who like to get into the philosophical stuff. Eugene Volokh raises an interesting point:

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.

Good point, but isn't the real distinction this: If the Government gives land to a private developer, the private developer has a right to exclusive use of the land. The public has no right of access. However, in the case of the regulatory taking, there is a constant public encroachment on the use of the land. That right is enforceable (and enforced) by the government.

So while we need to be careful with our terminology, perhaps, I don't think that we need to buy into the "public benefit" argument advanced by the majority in Kelo. When the state prohibits me from building on a piece of property, it is using my property--not merely benefiting from it, right? (Doesn't the state have a continous right of access to enforce these regulations?) This would be a regulatory taking that could be reconciled with the position of the dissenters in Kelo, right?

The New Mentality of Cities After Kelo

2005-06-30T12:33:00.000-04:00

Some local politicians don't even see anything wrong with what they are doing:

Four developers who have indicated an interest in constructing new housing on a site adjacent to the New Hope Golf Course on Bass Lake Road will be asked to make presentations at a July 18 New Hope City Council work session.
Five, 12-unit buildings comprise the Bass Lake Road Apartments, bounded by Bass Lake Road, Yukon Avenue, 58th Avenue North and the New Hope Golf Course.
New Hope city officials earlier identified the Bass Lake Road Apartments area as a top redevelopment priority.
. . .
Eminent domain probably will be required to acquire the Bass Lake Road Apartments property, Sondrall said.
“We’ve had no discussion at all with the property owner,” Sondrall said.
“Relocation benefits and the whole nine yards will be required. Anytime government acquires property that’s rented, we’re expected to pay relocation benefits.
“As soon as you put an offer in writing, you draw a line in the sand. Everyone who lives there then is entitled to relocation benefits. You can’t summarily go out there and padlock the doors without a judicial process.”

The sad joke is, you can padlock the doors after the judicial process.

Petition for Kelo Amendment

2005-06-30T12:11:00.000-04:00

Someone has created a petition for amending the Constitution to protect people from eminent domain.

Impact of Kelo

2005-06-30T12:08:00.000-04:00

More bad news in the wake of Kelo:
"A sad day for anybody that owns property anywhere in the
country."

That's how Ardmore business owner Scott Mahan described June 24, the day the U.S. Supreme Court issued its decision in a closely watched eminent-domain appeal.For Mahan and several other property and businesses owners on Lancaster Avenue potentially targeted for demolition, and for township
residents who join them in opposing Lower Merion's plan for redeveloping downtown Ardmore, the 5-4 decision in the case of Kelo vs. The City of New London was unquestionably a blow.

Where Randy Barnett is Wrong

2005-06-29T16:38:00.000-04:00

I think that Randy Barnett, a great law professor and libertarian, gets something wrong when he criticizes people who are taking the proposed eminent domain action against Justice Souter seriously. After linking to the story of the proposed taking, Barnett writes:
Update: I had posted this link facetiously but see that some commentors, both pro and con, are taking it more seriously. Retaliating against a judge for the good faith exercise of his duty is not only a bad idea, it violates the holding of Kelo itself, for the intent would be to take from A to give to B, in this case to punish A. I had considered deleting this post altogether--and perhaps this would still be a good idea--but, since other blogs had linked to it, decided instead to add this postscript.

Although a municipality cannot take land to punish a judge, I don't see why a developer cannot want to use land for a hotel to punish a judge. The intent of the government, not the private party, matters.

There are lots of libertarians like me who would make a pilgrimage to stay at a hotel on Justice Souter's property. Maybe that makes us mean-spirited. Who cares? The point is, our outrage at Souter makes his property very economically attractive. (I wouldn't make a pilgramage to stay at a hotel down the street from Souter, for example).

Does it matter why the property is economically attractice to a developer? I don't think so. And assuming that the property is actually economically attractive, a municipality could justifiably believe that condemnation of the property for development would generate higher tax revenue. Thus, the taking would be legal.

No one is suggesting (are they?) that the city Weare would have a bad motive in taking Souter's property (other than the bad motive expressly allowed by the Court in Kelo, that is)?

Interestingly, if Justice Souter's house were taken by eminent domain, and he appealed all of the way to the Supreme Court, he would have to recuse himself, leaving the Court at a 4-4 split. If the developer were to also make a play for Justice Stevens' house, then Stevens would have to recuse himself, leaving a 4-3 majority for enforcing the takings clause as written.

Injustice in Toledo

2005-06-29T12:02:00.000-04:00

Another sad story:
As vehicle haulers packed with new Jeeps thundered down Stickney Avenue behind him, Herman Blankenship remained defiant.
"I'll tell you what: I'm nobody. I've never caused much trouble around town, but I'm going to be the biggest pain [for city officials]," he said. "They took my land from me. They
made me an advocate."
Still, Mr. Blankenship's legal battles with the city of Toledo may be all but over.
Yesterday, the U.S. Supreme Court declined to hear Mr. Blankenship's lawsuit against the city. He and his wife, Kim, claimed the city unfairly seized Kim's Auto & Truck Repair for the expansion of the DaimlerChrysler Jeep plant.

Hands Off My Home!

2005-06-29T10:59:00.000-04:00

The Institute for Justice has announced its Hands Off My Home campaign.
Also, the IJ is having a rally to try to save Ms. Kelo's home:

Bullock said, “We’ll be working across the country, but we’re not giving up on New London, Conn. On July 5 at 6 p.m., there will be a rally at the New London Town Hall to ask the City Council to save these homes and allow Susette Kelo, the Dery family and the rest of the homeowners to stay in Fort Trumbull. The City and the New London Development Corporation don’t need these homes to accomplish their private development projects, and we will ask them to finally do the right thing and let these people stay in the homes they know and love.”

Push to Amend Texas Constitution

2005-06-29T08:15:00.000-04:00

Every state should follow:
Last week, the U.S. Supreme Court ruled local governments can buy out private land and then turn the property over to developers for economic development.
Some state lawmakers are trying to stop that through the Texas Constitution.
Less than a week after the Supreme Court ruling, some lawmakers say there should be a Texas constitutional safeguard to keep private property from being taken over for economic development reasons.
"The court said in its decision the states still have the power and abilities to restrict this power, and I think we have the opportunity to do it now," Rep. Frank Corte, Jr, R-San Antonio, said.
"And I would definitely not support any municipality profiting in the name of economic development by taking private property," Rep. Charles Anderson, R-Waco, said.
Local and state government in Texas has the power of eminent domain to pay for private land for public use.
But several House and Senate lawmakers say using it for economic development could line the pockets of private companies.
"And making money for individuals in my opinion is not a high public purpose," Rep. Garnett Coleman, D-Houston, said.

Bipartisanship in Illinois

2005-06-29T08:03:00.000-04:00

A good start:
In an ironic twist, the publicity around the U.S. Supreme Court’s recent affirmation of municipalities’ rights to take private land and turn over to other private owners for economic development could end up curbing that trend
— at least in Illinois.
Tuesday, both a Republican and a Democratic legislator announced plans to review Illinois’ stance on eminent domain issues, and both indicated they want to enhance individual property owners’ rights.
At the same time, Gov. Rod Blagojevich’s office also got in on the act, announcing the governor, too, is drawing up legislation to curtail the practice.

Democrats Kill Effort to Save Connecticut Homes

2005-06-29T08:01:00.000-04:00

The Democratic Party should be ashamed of itself:
Republican leaders in the state Senate have called for another special session to consider legislation limiting Connecticut's eminent domain laws following its defeat in the General Assembly on Tuesday.

The proposal, offered in response to last week's U.S. Supreme Court ruling allowing New London to take homes for a private development project, was killed on a mostly 22-11 party-line vote in the Democratic-controlled Senate.

The House of Representatives, which also is run by Democrats, defeated a similar proposal 82-50.

Closing Arguments in Daytona Beach Case

2005-06-28T21:35:00.000-04:00

Today in Florida:

Closing arguments were presented Tuesday in a trial that pits boardwalk businesses against the city, which wants to build condos in their place.

But the business owners don't want to give up their land for the price being offered, WESH 2 News reported.

The city's attorneys are trying to persuade a judge to force the property owners to sell their land so a private developer can demolish the boardwalk businesses and move forward with plans to build a $120 million hotel-condo project.

The city claims the area is blighted and that it has the right to take the property under eminent domain laws for the purpose of economic development.

But attorneys for the property and business owners of the Midway Fun Center, Fun Fair go-kart rides and Capt. Darrell's Oyster Bar and Restaurant say the properties are not blighted and that many improvements have been made over the years.

They are also arguing that the public purpose of a hotel-condo project does not outweigh the taking of their properties.

After Tuesday's closing arguments, both sides will have 10 days to submit a written argument to the judge.

The defendants have already said that if the judge rules in favor of the city, they plan on asking for a new trial and possibly filing an appeal.

Hope in Connecticut

2005-06-28T21:34:00.000-04:00

News of this:

Republican state senators are trying to limit Connecticut's eminent domain laws after the U-S Supreme Court ruled New London can take homes for private development.

They're proposing an amendment to prevent municipalities and government agencies from taking owner-occupied residential property with four or fewer units.

The legislature is debating the issue tonight.

Fairfield Senator John McKinney says he doesn't believe the government should be in the business of taking homes for private interests.

Last week's Supreme Court decision granted local governments broad rights to seize private property to generate tax revenue. But the court also ruled that states can restrict that power.

Not clear is whether the proposal will pass. Democrats who control the Senate say such an important issue should wait until next year's session, when legislators can gain more public input.

At least eight states already forbid the use of eminent domain for economic development unless it is to eliminate blight.

WATCH THIS NOW!

2005-06-28T21:26:00.000-04:00

You know the guy who is trying to use Eminent Domain to take Justice Souter's house? Well, he runs Freestar Media. Go to their home page and watch the video towards the bottom of the page called Grand Theft Building. You will be outraged at the actions by the City of San Diego.

MSNBC Poll

2005-06-28T17:14:00.000-04:00

You can vote in the MSNBC Kelo poll here. Results so far:

Should cities be allowed to seize homes and buildings for private projects as long as they benefit the public good? * 112332 responses

Yes, all parties benefit in the long run..............................2%
No, property owners will lose and developers gain........98%

It seems like most people are outraged by eminent domain abuse--but will they care enough to remember this issue in November?

Major Announcement from Institute for Justice

2005-06-28T17:07:00.000-04:00

From IJ:

TIME/DATE:
10 a.m./Wednesday, June 29, 2005

PLACE:
National Press Club, Zenger Room529 14th Street NW, 13th FloorWashington, DC

FOR THOSE OUTSIDE OF WASHINGTON, D.C.,
A SPECIAL PHONE LINE HAS BEEN ADDED
SO YOU MAY LISTEN IN.
CALL (800) 633-8680.

PARTICIPANTS:
Scott Bullock, Senior Attorney, Institute for Justice
Dana Berliner, Senior Attorney, Institute for Justice
Property Owners Who Stand to Lose Their Homes & Businesses

CONTACT:
John Kramer or Lisa Knepper (202) 955-1300

SUMMARY:
Less than one week after the U.S. Supreme Court issued its Kelo decision allowing governments to take property from the rightful owner only to hand it over to another private party for his or her private gain, the Institute for Justice, which represented homeowners in the case, will make a major announcement concerning a national effort to combat eminent domain at the state and local level.

Through IJ’s Castle Coalition—a nationwide network of citizen activists determined to stop the abuse of eminent domain in their communities—the Institute for Justice will announce the “Hands Off My Home” campaign to give ordinary citizens the means to protect their homes from government-forced takings for private development.

The Castle Coalition acts as a resource for citizens threatened by eminent domain, offering information, training and support to help them battle condemnation abuses in their communities. The Castle Coalition is a project of the Institute for Justice, the nation’s leading legal advocate against eminent domain abuse.

Mr. Clements' Letter

2005-06-28T15:44:00.000-04:00

Here's Mr. Clements' letter requesting to build a hotel on Justice Souter's property:
Monday, June 27, 2005
Mr. Chip Meany
Code Enforcement Officer
Town of Weare, New Hampshire
Fax 603-529-4554

Dear Mr. Meany,

I am proposing to build a hotel at 34 Cilley Hill Road in the Town of Weare. I would like to know the process your town has for allowing such a development.

Although this property is owned by an individual, David H. Souter, a recent Supreme Court decision, "Kelo vs. City of New London" clears the way for this land to be taken by the Government of Weare through eminent domain and given to my LLC for the purposes of building a hotel. The justification for such an eminent domain action is that our hotel will better serve the public interest as it will bring in economic development and higher tax revenue to Weare.

As I understand it your town has five people serving on the Board of Selectmen. Therefore, since it will require only three people to vote in favor of the use of eminent domain I am quite confident that this hotel development is a viable project.

I am currently seeking investors and hotel plans from an architect. Please let me know the proper steps to follow to proceed in accordance with the law in your town.

Thank you.

Sincerely,

Logan Darrow Clements
Freestar Media, LLC

I will stay at this Hotel

2005-06-28T15:37:00.000-04:00

Is it wrong of me to hope this taking of Justice Souter's house actually occurs? (The copy of Atlas Shrugged is a nice touch too. It certainly feels like Atlas Shrugged lately):
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.

Slate's Collection of Cartoons

2005-06-28T13:17:00.000-04:00

Slate has a nice collection of editorial cartoons pertaining to eminent domain. I have yet to find an editorial cartoon supportive of the Supreme Court's decision. Let me know if you find one.

Another Cartoon

2005-06-28T09:20:00.000-04:00

Another Cartoon

2005-06-28T09:16:00.000-04:00

Another Cartoon

2005-06-28T09:14:00.000-04:00

Another Editorial Cartoon

2005-06-28T09:11:00.000-04:00

Open Source Amendment Idea

2005-06-28T08:46:00.000-04:00

It looks like someone else has taken my open-source amendment idea and run with it: See this, and this, and this, and this.

Eminent Domain is Campaign Issue in Virginia

2005-06-28T08:43:00.000-04:00

From Charlottesville:
Assaults on the U.S. Supreme Court ruling that allows local governments to seize homes or businesses for private development continued Monday as House of Delegates candidates pledged rewrites of state law.
Former Charlottesville Mayor David J. Toscano criticized the high court’s decision in Kelo v. City of New London and suggested legislation is needed to tighten Virginia’s legal definition of “public use.”
. . .
Charlottesville Republi-can Tom McCrystal, who faces Toscano in the Nov. 8 election, said he has discussed the case with GOP legislative leaders and predicted quick action in the 2006 General Assembly session to undo the decision in Virginia law.
“I think it’s going to be dead very quickly,” McCrystal said. “We just need to set the rules prohibiting eminent domain for private use.… I think you will see a move afoot to see that that happens in January.”

The Bad Manners of Eminent Domain

2005-06-28T08:38:00.000-04:00

It's not just unfair. Sometimes, it's discourteous too:

When the Redwood City Council authorized a downtown land acquisition for a new cinema and retail project, ousted property owners were left “bruised” and resentful by its lack of respect, according to a civil grand jury report released yesterday.
The report concluded the Redevelopment Agency did not give fair and equitable treatment to those evicted. It recommends the City Council tell the RDA to develop written guidelines on property treatment of citizens and conduct staff training. The council should also set up a method to handle complaints about the RDA, the report states.
Mayor Jeff Ira, who had yet to see the report, concedes the city could have been more sensitive and vowed “it will never happen again.”
Multiple property owners were affected when the city began its $100 million downtown revitalization through a new 20-screen theater and retail complex. The land bound by Broadway, Jefferson Avenue and Middlefield Road was declared a “blighted area” and snatched through eminent domain.
James Celotti, 76, sued the city for taking his old, two-story building and in May 2004, Superior Court Judge Quentin Kopp ruled in his favor. Kopp found that although city officials claimed a public parking lot would be built on the land it actually was used to benefit a private developer.
The next month, Celotti settled for $3 million and Ira later sent him a letter of apology.
. . .
Ira doesn’t think specific guidelines for RDA are necessary but
said the staff were spoken with at length about how to deal with similar situations in the future.
The primary problem, Ira said, was that the city viewed the situation as a business venture while the Celottis saw it as a very emotional, personal matter. The building was in the family since 1976 when Celotti bought it for retirement.

City to Destroy Barbershop

2005-06-28T08:33:00.000-04:00

Another sad story of a family business destroyed:
Glaston "Alex" Sims has been cutting hair on Seacrest Boulevard for almost 50 years.He built the cream-colored shop in 1956. For decades it's been a mainstay for men in Boynton Beach's African-American community, a reliable spot for spruce-ups and friendly conversation. "We've got generations in here," said Guarn Sims, one of Alex's sons, who frequently mans one of the four scuffed barber chairs. "We've got gentlemen who are 75 and 80 years old. And their sons and their grandsons. This here's home."
. . .
The shop he built is directly in the path of an ambitious edevelopment project called the Heart of Boynton. Around the intersection of Seacrest and Martin Luther King Jr. Boulevards, the city plans to replace decades of blight with nice new residences and storefronts. The shop stands in the way of an expanded park and cemetery, according to drawings on the CRA Web site. The city has agreed to buy the building for $225,000, plus another $20,000 for "relocation," in a deal finalized in the last few weeks, said Doug Hutchinson, director of Boynton's Community Redevelopment Agency.The family's not happy about it, Guarn Sims said. He said the deal will force his father, 76, to retire. The career barber was hoping to ease into semi-retirement, renting out a couple of chairs to younger barbers who'd keep the bulk of the business going.
Hutchinson said the CRA is giving the Simses considerably more than the shop's $100,000 appraised value. "They were willing sellers," he said.But Guarn Sims said the sale was made under the implied threat of eminent domain, a threat that appears all the stronger since the U.S. Supreme Court ruled last week that localities can take private property and give it to developers who will increase the tax base or create jobs."That was the nail in the coffin," Guarn said, referring to his faint remaining hope that the sale could be called off.

Testimony about Blight in the Dayton Beach Case

2005-06-28T08:31:00.000-04:00

More evidence of an unfair taking:
A former city commissioner took the witness stand Monday to fight the city's effort to seize his business and replace it with new shops, restaurants and condominiums. In testifying against the condemnation of his Boardwalk restaurant, Darrell Hunter disputed the city's declaration of blight -- a necessary step for Daytona Beach to use its power of eminent domain to force the property owners to sell.
"In the over 50 years I've been down there, the only place that was ever any problem was a city-owned property, which was not on the Boardwalk," said Hunter, a sea captain and the name behind Capt. Darrell's Oyster Bar and Restaurant. "It was a park that was behind the Bandshell, not on the Boardwalk."

People are Taking Action Against New London

2005-06-28T08:22:00.000-04:00

Check out this letter to the editor of New London's local paper:

Letters To The Editor:

New London, in commandeering private property for commercial use and forcing a tragic Supreme Court decision stripping Americans of yet another Constitutional right, has done a fine job of shooting itself in the foot. While abusing eminent domain to promote economic development and tax revenue, New London actually has drawn to itself national shame and notoriety that will have the opposite effect from what it intended.
I, and many other nonresidents I know, will now avoid New London at all costs. In fact, I vow to never set foot in the city again and spend a dime in it. In frequenting the Amtrak station, I would eat and shop at local establishments. No longer.

I gladly will drive to the next Amtrak station to avoid contributing to the sullied city. And gee, I bet there will be all kinds of new residents and new small businesses lining up to establish themselves in a city that might just rip their lives and personal and financial investments out from under them.

Citizens' homes being torn out from them under the vile threat of condemnation if they didn't comply with the city? Lives and families upset and overturned for private, commercial interest? And I am going to frequent and support such a city that values the dollar over humanity?
So long, New London. This fine piece of promotion and economic development coupled with the possibility of the sub base closing should position you squarely as a city in its ugly death throes in the next decade.

Gerald LeBeau
Danielson

Property Owners Caught in the Nets

2005-06-28T08:20:00.000-04:00

Sports teams are the worst when it comes to eminent domain:
New Jersey Nets owner Bruce Ratner, eager to move the National Basketball Association franchise to Brooklyn in 2008, announced Monday he had finalized a Community Benefits Agreement with eight neighborhood organizations.
. . .
The developer's effort to move out of Continental Arena also received a boost Thursday from the U.S. Supreme Court. By a 5-4 margin, the court recognized economic development as a legitimate reason for communities to seize property under their right of eminent domain. While Ratner already has acquired most of the land in the project area, some opponents have owed never to sell.

Good News in Oklahoma

2005-06-27T18:37:00.000-04:00

We need more action like this:

State Sen. Clark Jolley, R-Edmond, said Monday that he will offer a bill to protect private property owners from having their property taken for private economic development.

In a press release issued Monday, Jolley said a Supreme Court ruling in a Connecticut case allowing a city to use eminent domain to seize property for private development is frightening.

Jolley said he is still working on specifics in the bill, but said it will give greater protection to private property owners.

Eight other states already have laws prohibiting the use of eminent domain for economic development unless the land being seized is blighted.

The Attempt to Take Dayton Beach

2005-06-27T18:32:00.000-04:00

Business owners on the Daytona Beach boardwalk are fighting for the right to keep their businesses:

The future of the Daytona Beach boardwalk will soon be in the hands of a Volusia County circuit judge. The city is trying to force some business owners along the boardwalk to sell out to make room for luxury hotels and condos. The city wants a total makeover for the boardwalk area and has handpicked a developer for the $150 million project, but some of the business owners who were there first will not go down without a fight.

The Daytona Beach boardwalk has been one of the symbols of the tourist town for decades, but some city leaders have decided it's run down and they're trying to force local business owners to sell out on the grounds that their property is blighted.

"I found that there wasn't a substantial amount of deteriorating structures currently. So, therefore, I cannot come to the conclusion that the area is blighted," said urban planning expert Ethel Hammer.

Hammer testified at a court hearing on behalf of some of the business owners who stand to lose what they've built. They have taken the city to court to protect their property rights, but the city wants them gone and is trying to use eminent domain, which can allow local governments to seize private property to make way for new development. But the original business owners say the city's definition of blighted property goes way too far.

"Your yard, landscaping, mildew on your house, I don't think that goes to the heart of declaring an area blighted," said Hammer.

Testimony should wrap up Tuesday. Judge John Watson could very well decide the case immediately, right from the bench, or issue a written ruling in a few days.

Missouri Gov. Matt Blunt

2005-06-27T18:29:00.000-04:00

Missouri Gov. Matt Blunt is at least planning to look at the issue:

Missouri Gov. Matt Blunt today announced his intention to issue an Executive Order creating a special task force to study federal and state eminent domain laws.

Blunt's decision to form the Missouri Task Force on Eminent Domain comes four days after the United States Supreme Court ruled against homeowners in Connecticut who sought protection from having their homes taken by a private developer for a commercial project.

"Today [June 23, 2005] in a 5-4 decision the United States Supreme Court dealt a blow to the property rights of private landowners and greatly expanded the rights of the government to seize a person's most precious property-a home, a farm or a business-and give it to another private interest just so the government can increase tax revenues. I agree with the dissenting Justices that the Court's decision effectively erases the Public Use Clause from the United States Constitution.

"This is a terrible ruling that undermines the balance that ought to exist between private property owners and the needs of the public," Blunt said. "I am charging this commission with conducting a thorough review of federal and state eminent domain laws to protect Missouri home, farm and business owners from falling victim to a government tax grab."

Senator Cornyn's Bill

2005-06-27T18:11:00.000-04:00

Senator John Cornyn introduced The Protection of Homes, Small Business, and Private Property Act of 2005, which would limit the effect of Kelo in takings with federal money. (Cornyn's statement is here). This is certainly a step in the right direction, but most abuses of eminent domain do not involve federal money. I'm sure Cornyn is reluctant to expand his bill to cover all takings because he worries about the Constitutionality of such measures.

Cornyn could rely upon the Commerce Clause for broader legislation. There is little doubt that municipal takings can affect interstate commerce. (Consider every stadium taking where the team threatens to go to another state). And the Raich decision certainly preserves the Supreme Court's broad reading of the Commerce Clause. But conservatives should be wary of using the Commerce Clause so broadly--since the ultimate goal is to reign it in, right?

What the Blogosphere thinks

2005-06-27T14:01:00.000-04:00

Here's a good collection of posts on Kelo from around the web.

Susette Kelo in front of her soon to be demolished home

2005-06-27T12:55:00.000-04:00

Susette Kelo: "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."
(from IJ)

H. Res. 340 Criticizes Kelo Decision

2005-06-27T12:35:00.000-04:00

This doesn't exactly save anyone's home, but it's nice to see nonetheless. It suggests that Congress might pass legislation to curb Kelo, but this would not be the best way to address the Kelo problems, as it would require exercise of Congressional power through the Commerce Clause, I suspect. Anyway, here's the resolution:

Mr. GINGREY (for himself, Mr. WILSON of South Carolina, Ms. HARRIS, Mr. OTTER, Mr. HAYWORTH, Mrs. DRAKE, Mr. DOOLITTLE, Mr. SMITH of Texas, Mr. ISTOOK, Mr. WESTMORELAND, Mr. TIAHRT, Mr. MILLER of Florida, Mr. FOLEY, Mr. POE, and Mr. BLUNT) submitted the following resolution; which was referred to the Committee on the Judiciary

RESOLUTION
Expressing the grave disapproval of the House of Representatives regarding the majority opinion of the Supreme Court in the case of Kelo et al. v. City of New London et al. that nullifies the protections afforded private property owners in the Takings Clause of the Fifth Amendment.
Whereas the takings clause of the fifth amendment states `nor shall private property be taken for public use, without just compensation'; Whereas upon adoption, the 14th amendment extended the application of the fifth amendment to each and every State and local government;
Whereas the takings clause of the 5th amendment has historically been interpreted and applied by the Supreme Court
to be conditioned upon the necessity that Government assumption of private property through eminent domain must be for the public use and requires just compensation;
Whereas the opinion of the majority in Kelo et al. v. City of
New London et al. renders the public use provision in the Takings Clause of the fifth amendment without meaning;
Whereas the opinion of the majority in Kelo et al. v. City of New London et al. justifies the forfeiture of a person's private property through eminent domain for the sole benefit of another private person;
Whereas the dissenting opinion upholds the historical interpretation of the takings clause and affirms that `the public use requirement imposes a more basic limitation upon government, circumscribing the very scope of the eminent domain power: Government may compel an individual to forfeit her property for the public's use, but not for the benefit of another private person';
Whereas the dissenting opinion in Kelo et al. v. City of New London et al. holds that the `standard this Court has adopted for the Public Use Clause is therefore deeply perverse' and the beneficiaries of this decision are `likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms' and `the government now has license to transfer property from those with fewer resources to those with more'; and
Whereas all levels of government have a Constitutional responsibility and a moral obligation to always defend the property rights of individuals and to only execute its power of eminent domain for the good of public use and contingent upon the just compensation to the individual property owner: \
Now, therefore, be it Resolved, That--
(1) the House of Representatives--
(A) disagrees with the majority opinion in Kelo et al. v. City of New London et al. and its holdings that effectively negate the public use requirement of the takings clause; and
(B) agrees with the dissenting opinion in Kelo et al. v. City of New London et al. in its upholding of the historical interpretation of the takings clause and its deference to the rights of individuals and their property; and
(2) it is the sense of the House of Representatives that--
(A) State and local governments should only execute the power of eminent domain for those purposes that serve the public good in accordance with the
fifth amendment;
(B) State and local governments must always justly compensate those individuals whose property is assumed through eminent domain in accordance with the fifth amendment;
(C) any execution of eminent domain by State and local government that does not comply with subparagraphs (A) and (B) constitutes an abuse of government power and an usurpation of the individual property rights as defined in the fifth amendment;
(D) eminent domain should never be used to advantage one private party over another;
(E) no State nor local government should construe the holdings of Kelo et al. v. City of New London et al. as justification to abuse the power of eminent
domain; and
(F) Congress maintains the prerogative and reserves the right to address through legislation any abuses of eminent domain by State and local government in light of the ruling in Kelo et al. v. City of New London et al.

CNN Poll on Eminent Domain

2005-06-27T12:13:00.000-04:00

Internet polls are not exactly representative samples of public opinion, but the results of this CNN internet poll are encouraging.

Demand more from Frist

2005-06-27T08:27:00.000-04:00

U.S. Sen. Saxby Chambliss has spoken out against the Kelo decision:
“This shouldn’t happen in America,” continued Sen. Chambliss. “The Kelo case is a troublesome expansion of the power of local governments to confiscate private property. This case appears to allow seizure of homes owned by lower-and middle-income people to benefit the wealthy and powerful. Congress needs to take a look at what we need to do to restore the protections of the Fifth Amendment to property owners in our country.”

Bravo. Unfortunately, Senator Bill Frist (perhaps mindful that big business contributions are necessary for his presidential run) was a bit more muted in his response:

"[T'here are many important questions that we need to consider. How can we be sure that a public purpose is served, when government transfers property from one private owner to another? Does this decision give governments too much power over private property owners? What assurances do Americans have, those who work so hard to buy their own homes, that government will not take those homes away? Will this decision give undue advantages to politically connected developers and wealthy individuals?

“Private property has long been a cornerstone of the Constitution and our American society. Indeed, our economy is based on the principle of private ownership of property.

"It was John Adams who said ‘Property is surely a right of mankind as real as liberty.’

"Any infringement on that right cannot be undertaken lightly. We should give careful consideration to these questions and explore the practical implications of this decision.”

This is called "lip service." With all due respect, Senator Frist, we need action, not words. Frist says:

”The concern here -- as voiced by Justice Sandra Day O'Connor in her dissent -- is that "under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner." Indeed, I share that concern.

Sorry, Senator, but "I share that concern" is a little too much like "I feel your pain." Don't share our concern--do something about it.

Progress in Alaska

2005-06-27T08:22:00.000-04:00

Some state reps in Alaska are already taking action:
Representatives Bob Lynn (R-Anchorage) and Lesil McGuire (R-Anchorage) have both requested that Legislative Legal Services draft legislation to protect Alaskan property owners from government abuse of private property rights.
. . .
"I have called Legislative Legal Services today to draft a bill to protect Mr. and Mrs. Alaska from government abuse of private property rights," said Representative Lynn. "I'm shocked at the Supreme Court decision that allows government to run roughshod over individual property rights, so a developer can build a big box store where your bedroom used to be. Eminent domain has a proper place for public use, but it's beyond outrageous to use eminent domain to increase tax revenue from commercial development, at the expense of homeowners. I hope to have a proper bill to introduce in January - or sooner if a special session is called by the governor for the gas pipeline - and I hope every Alaska legislator will co-sign the bill."

Representative McGuire said, "As Judiciary Chair, the Supreme Court decision astonishes me and has compelled me to introduce legislation that will clarify that the Alaska Constitution and eminent domain laws will protect Alaskans from having their land taken by the government for mere economic development purposes. There is an appropriate place for eminent domain use by the government, but only in very narrow circumstances. This court ruling expands eminent domain beyond these narrow circumstances and into areas Alaskans simply should not tolerate. It is the intention of the Judiciary Committee to clarify the narrow circumstances for use of eminent domain and prevent such infringement for all Alaskans."

Representatives Lynn and McGuire will introduce separate bills, or work together to combine the individual bills into one. Both Representatives have the same goal - to protect private property rights from invasive government actions. Legislation will be fine-tuned over the interim for introduction during
the opening days of the upcoming session.

Free Coffee

2005-06-27T08:13:00.000-04:00

Okay, I doubt that many will feel much sympathy for this adult theater in Pittsburgh, but free speech ought to count for something, and at least the coffee is free:
The Garden is the last remaining adult theater in Pittsburgh. The city has spent eight years trying to take the property from its owner, George Androtsakis of New York, to help redevelop the rundown area around the North Avenue theater.

So far, the city has spent more than $700,000 attempting to buy a building whose assessed value is $313,500. The legal fight has reached the state Supreme Court; the U.S. high court ruling certainly doesn't hurt the city's chances of eventually prevailing.

Which would be bad news for the two Garden employees I spoke with -- the manager, a man in his 30s of apparent Indian descent, and the cashier, who looked in his mid-40s and had letters spelling out "hate" tattooed on the knuckles of his right hand.

At the risk of stating the obvious, neither gentleman was willing to give his name.

Asked whether they are concerned the Supreme Court decision might eventually cost them their jobs, the manager responded indifferently. "If it happens, it happens," he said. "We would have to find new jobs, I guess."

The cashier nodded.

"I've been a cook, bused tables, done construction," he said. "I got two kids. I do whatever it takes to support my family."

The manager, who said he has worked at the Garden for four years, claimed not to have followed the lengthy legal wrangling over the theater.

"I don't pay attention to all of the other stuff," he said. "I'm just trying to run a decent theater."

I pointed to a sign above a table with a large urn and plenty of paper cups.

"The free coffee is a nice touch," I said.

The manager shrugged. "People seem to like it," he said.

Even Liberals are Upset

2005-06-27T08:09:00.000-04:00

Property rights used to be a conservative cause, but now, even liberals are upset. Like this one:

I had a rush of patriotism last week, built on seeing the World Trade Center site for the first time since 9/11, then hiking through Battery Park to glimpse the Statue of Liberty and later trundling up to Boston and summoning echoes of the Revolutionary War.Or maybe the rush came because I'm 300 pages into John Adams' biography. Whatever. I felt like a Yankee Doodle Dandy by way of the O.C.

The point is, I was high on my country last week. Then,
wouldn't you know it, the U.S. Supreme Court had to come along and ruin everything. In a 5 to 4 decision, the justices gave cities wider berth through eminent domain to claim private property for business development. The majority
was led by the court's so-called liberal wing. If that's liberalism, for the first time ever I feel like sending Rush Limbaugh a few bucks.

I think that a significant number of Democrats would support efforts to curtain eminent domain abuse, and for this, we have Kelo to thank.
(No, they don't have to send money to Rush).

Another Cartoon

2005-06-26T11:19:00.000-04:00

More Cartoons

2005-06-26T11:15:00.000-04:00

More Cartoons

2005-06-26T11:10:00.000-04:00

Another Last Resort

2005-06-26T11:06:00.000-04:00

Another Cartoon

2005-06-26T11:04:00.000-04:00

Cartoonish Behavior

2005-06-26T11:01:00.000-04:00

Separation of Church and Land (or how Costco won the war)

2005-06-26T10:44:00.000-04:00

Your church isn't safe. A Costco might want the land:

Religion squared off with consumerism in Cypress, California, last May when the Cypress City Council voted unanimously to seize, through use of the city’s power of eminent domain, 18 acres of land owned by the Cottonwood Christian Center in order to build a Costco discount store.

The city council was rather arrogant about its power:

In Cypress, writes Greenhut, "City officials did not dress up what they were doing in legalistic language. They were brazen in their goals. They ridiculed church members at public meetings. They bragged about their ability to use eminent domain for whatever reason they chose, and they made it clear that the government's desires should take precedence over the desires of `a narrow special interest,' which is how city officials repeatedly referred to the church."

The church eventually settled.

Baby, You Can Drive My Car (Business Away)

2005-06-26T10:40:00.000-04:00

Another story from the IJ report:

In 1998, the City of Merriam condemned William Gross's property, which he leased to a used car dealership, so that Gross's neighbor, a BMW dealership, could expand.246 The City sold Gross's property to Baron's BMW for the same price it paid Gross and gave Baron's $1.2 million in tax-increment financing to build a new BMW dealership and add a Volkswagen dealership. The Merriam City Council said the project served the public interest because the City would make $500,000 per year in sales tax revenues from the BMW and Volkswagen dealerships.

What happens when a Porsche dealership wants the BMW lot?

No property is safe. This is a crisis.

Moore Injustice in Texas

2005-06-26T10:35:00.000-04:00

From the IJ Report:

Todd Moore and his family once owned 1,700 acres of farmland in a rural area outside Dallas that now encroaches upon the sprawling suburbia of Plano. Over the years, the Moore family has generously given chunks of their land to Plano, including the original 661 acres for Oak Point Park, which is already the largest park in the city and has won national awards for park management.

Apparently, however, they haven't been generous enough to satisfy Plano City officials. Now that the city is overrun with housing developments, it wants to condemn the rest of the Moores' land, so that all those newcomers to the city can enjoy the enhanced property values and quality of life all the extra open space may bring them. The Plano City Council has approved the use of eminent domain to take the land, out of fear that the Moores might sell out to a developer first. According to City Councilman Shep Stahel, if somebody were to develop the land, it would result in two small subdivisions sticking down into the park, and "[t]hat's inconsistent with a nature preserve." For his part, Todd Moore is amazed at the City's lack of gratitude: "It's beyond me why they would want to condemn land from a family that's always given."

Welcome to the world of eminent domain.

The disingenuous "Last Resort" Defense

2005-06-26T10:23:00.000-04:00

Cities guilty of eminent domain abuse always argue that they use eminent domain only as a "last resort." Like this:

Newport City Manager Phil Ciafardini said the court ruling bolsters Newport's eminent domain case involving the proposed shopping center on the 56-acre site overlooking I-471 between 10th Street and Carothers Road. Lower courts have ruled in Newport's favor. The case is before a state appeals court. He said Newport won't go on an eminent domain spree. "It's used as a last resort and very sparingly," he said.

Or this:

"It's a very difficult decision and one that should only be taken as a last resort to reverse a negative situation in a particular area," said New Rochelle Mayor Timothy Idoni, who several years ago favored using eminent domain to acquire land for a huge IKEA store.

Great. This means that eminent domain will only be used if you refuse to sell your home. This is great comfort, right? I think this from Pittsburgh sums it up:

The mayor and Golomb try to sound nice about it by assuring us that eminent domain is only in their plans as a “last resort,” if the business and property owners don’t cooperate. This promise is meaningless. If eminent domain is on the table at all, then the city is, in fact, using the threat of eminent domain as a weapon against those local Pittsburghers. Their “last resort” promise is like a thug pointing a gun at you and telling you that he sure hopes you voluntarily cooperate with him so he doesn’t have to shoot you as a “last resort.” His enthusiasm for your voluntarily cooperation and “last resort” assurances probably wouldn’t make you feel any less like the victim of an armed robbery.

Senator Santorum Speaks

2005-06-26T09:53:00.000-04:00

There's a lot I don't like about Senator Santorum, but I do like this:

During a visit to the Danville area on Friday, Senator Rick Santorum of Pennsylvania talked with Newswatch 16 about the high court's ruling. He fells the Supreme Court made the wrong decision. "That, to me, is really undermining people's fundamental rights to property," said Santorum. "And that's an important right in our Constitution."

The ruling gives local governments flexibility in bringing in economic opportunities to benefit an entire community. Montour County Commissioner Trevor Finn agrees with Sen. Santorum that the implications of the decision could be too costly. Finn told Newswatch 16, "If you have Johnny's Meat Market, and they've been there for 100 years, and all of the sudden a big super center wants to open up, it would give a politician the right to throw Johnny out and his family out after 100 years of service. I just don't think it's a good idea."

Sen. Santorum hopes state and local politicians will take steps to prevent the new powers from being abused. "I think most elected officials, local elected officials, realize eminent domain really only should be used in the most extreme cases where there's a real huge public benefit," said Santorum.

This is great, but we need more, Senator Santorum. You carry a lot of weight in Pennsylvania. Use your influence to get state politicians to do something about eminent domain abuse. And if they don't, help push a Constitutional amendment.

Letters to the New York Times

2005-06-25T12:22:00.000-04:00

When was the last time that all the letters to the New York Times agreed with Scalia and Thomas? The response to Kelo is unanimous in the letters section today. Wendy Miller sums things up well:

To the Editor:

Regarding those being evicted, you refer cavalierly to those "who will, in any case, be fully compensated" (editorial, June 24).

How, may I ask, do you fully compensate an 87-year-old woman who is being evicted from the home in which she was born and in which she probably wanted to die?

I wonder if you will feel the same way when the government decides that it needs to evict you from your home with "full compensation."

Having been evicted from rentals because of change of ownership and condo conversions, I once believed that as an owner, I could at last be secure in my own home. Obviously, that is true only until such time as the government decides that it needs my home for the "public good."

Wendy Miller

San Rafael, Calif., June 24, 2005

Another Picture of the Gambles' Home

2005-06-25T12:13:00.000-04:00

It will probably be torn down soon.

The Oral Argument

2005-06-25T11:57:00.000-04:00

I was reviewing the oral argument from Kelo and found this interesting:

13JUSTICE BREYER: Justice Douglas says
14 there that as long as it's an objective within
15 Congress and legislature's legitimate grant of power,
16 they can do it, I mean, as long as there's a -- so
17 why does there have to be a limit within that broad
18 limit?

19 MR. BULLOCK: Well, Your Honor, the limit
20 is that there cannot be takings for private use.

21 JUSTICE BREYER: Of course, there can't,
22 purely. But there is no taking for private use that
23 you could imagine in reality that wouldn't also have
24 a public benefit of some kind, whether it's
25 increasing jobs or increasing taxes, et cetera.

1 That's a fact of the world.

2 And so given that fact of the world, that
3 is law, why shouldn't the law say, okay, virtually
4 every taking is all right, as long as there is some
5 public benefit which there always is and it's up to
6 the legislature.

7 MR. BULLOCK: Your Honor, we think that
8 that cuts way too broadly.

9 JUSTICE BREYER: Because?

10 MR. BULLOCK: Because then every property,
11 every home, every business can then be taken for any
12 private use.

13 JUSTICE BREYER: No. It could only be
14 taken if there is a public use and there almost
15 always is.

You can almost always claim that there is a public benefit to the use of eminent domain. You can always talk about tax dollar generation or additional jobs, or just beautification.

Under Breyer's conception of the takings clause, there is virtually no constitutional protection against the taking of your home or business, so long as just compensation is paid.

Doesn't Scalia nail the issue in the following exchange?

11 JUSTICE SOUTER: Well, I'm not interested
12 in the label. I'm just saying if the government says
13 we need to increase the tax base because we have a
14 depressed city, so we are going to take some of our
15 tax money now, and we are just going to buy up
16 property that people are willing to sell to us, and
17 we are going to assemble parcels. And when we get a
18 big enough one, we are going to sell them to a
19 developer for industrial purposes. And that will,
20 that will raise the tax base. Is there anything
21 illegitimate as a purpose for governmental spending
22 in doing that?

23 MR. BULLOCK: No, Your Honor. We do not
24 believe that that would be -- it's not a public use.

25 JUSTICE SOUTER: Why isn't there a public
1 purpose here?

2 MR. BULLOCK: Well, Your Honor, because
3 this case affects the eminent domain power, which is
4 regulated by the Fifth Amendment -5

JUSTICE SOUTER: No, but we are talking
6 about -- I mean, I realize that, but I mean, I
7 thought your point was that it was use of eminent
8 domain power for an improper purpose. And you
9 characterize that purpose as conveying property to
10 private owners.

11 Well, in my example, the same thing is
12 going on except that it's not using the eminent
13 domain power. If the purpose in my example is a
14 proper public purpose, why isn't it a proper public
15 purpose when the government does it by eminent
16 domain? What changes about the purpose?

17 MR. BULLOCK: Your Honor, because of the
18 public use restriction of the Amendment. That's what
19 we really -20

JUSTICE SCALIA: Mr. Bullock, do you
21 equate purpose with use? Are the two terms the same?
22 Does the public use requirement mean nothing more
23 than that it have a public purpose?

24 MR. BULLOCK: No, Your Honor.

25 JUSTICE SCALIA: That's your answer to
1 Justice Souter.

The St. Louis Blues

2005-06-25T11:37:00.000-04:00

Another family is about to lose their home:

A South St. Louis family say its disappointed with Thursday's Supreme Court decision on eminent domain. The family could end up losing its house to a local developer.

You can't miss the Thompson's home in South St. Louis. It's the only one that's not boarded up. That's because the family decided not to sell to a local developer interested in building a shopping center in its place. The Thompson's took their fight to the court. Thursday, the Supreme Court ruled local governments can take people's homes against their will for private development. What the ruling does for the Thompson's case is remove any argument under the U.S. Constitution.

The President's Response--Not Enough

2005-06-25T11:30:00.000-04:00

Here's the White House's answer to a question about the Kelo decision:

Q Thank you. Scott, does the President plan to introduce legislation to counter the Supreme Court's decision on eminent domain? Isn't a man's home his castle?

MR. McCLELLAN: First of all, on the Supreme Court decision from yesterday, we were not a party to that case. The President has always been a strong supporter of private property rights. Obviously, we have to respect the decisions of the Supreme Court, and we do.

That's an okay "first of all," but there was no "second of all." We need a "second of all." We need the President to lead on this issue. Sure, he respects the decision--as he must. But he can also push for a Constitutional Amendment to protect people's homes. Bush has come out in favor of a (stupid) amendment to save flags. Aren't homes and family businesses more important?

Chicago, Chicago--That Store Stealin' Town

2005-06-25T11:23:00.000-04:00

It seems like seven times out of ten, it's condos. Cities love their condos:

Eminent domain gives a city the power to take private land -- for a fair price -- so long as the deal benefits the public. A Connecticut case awaiting an important ruling by the U.S. Supreme Court is mirrored by many eminent domain cases across the country including the fight over a Jefferson Park bike shop.

They all ask the question, "when is it proper for a public body to take private land for what will be private use?" Don Zordani is a former bicycle racing champion who has made his living selling bikes. Nearly 35 years ago, he bought an old Jewell store in Jefferson Park and turned it into a shop that has had -- over the years -- a sizable clientele.

The city wants to take the bike shop and surrounding properties and allow a private developer to build a seven story condominium tower.

Zordani sees that as an abuse of the city's power to condemn. "This is not something for the city or the park district, or a school. it would just be for a private developer to make the lot of profit," said Don Zordani.

Stop Abuse Near Syracuse

2005-06-25T11:15:00.000-04:00

If you live in Central New York state, make your feelings known about this:

This spring, representatives for DestiNY and OCIDA crafted an agreement regarding the proposed R&D Park in Salina. Wednesday morning, the OCIDA Board held a meeting to discuss the agreement and possibly vote on it. But neither a discussion nor a vote took place.

"Members of the agency are in favor of the project and would like the project to succeed. At the same time, we have an obligation to those families who own businesses and work for the businesses that are in Phase 3," said OCIDA Chairman Robert Baldwin.

Phase 3 beings the part of the agreement in which OCIDA agrees to use eminent domain to condemn more than two dozen Salina businesses to make way for the R&D Park.

Phil Jakes-Johnson represents Solvents and Petroleum in Salina. He sees OCIDA's decision to hold off on a vote as a sign the board is seriously considering his group's objection to eminent domain.

"OCIDA Board members, volunteer board members, are giving due deliberation to magnitude of this agreement," he said.

Again, people are trying to do something about this.

Eminent Domain Abuse Hurts Families

2005-06-25T11:04:00.000-04:00

This isn't just about homes. It's about families. Like the Dudko family (watch the video--It will break your heart):

A Bristol family knows all too well about eminent [domain]. Their homes and land were taken by the city for economic development last year.

"I hate to see it happen to anyone because I lived through it", says Mary Dudko.

The crushed up wood pile used to be a 100 year old farmhouse. The city demolished the home and their land under eminent domain.

The family says the city told them they wanted about 40 acres of their land for economic development to expand their industrial park for more property taxes. The family kept saying no, but after a seven year fight, they were forced out.

"We definitely did not get fair market value. That doesn't happen", says Mike Dudko.

Michael Dudko says the family was given less than half of what the land was worth. What he finds unfair is the city hasn't done anything with the land. That is because Yarde Metals, the company that was going to move in, gave up after a long court battle.

Dudko says the family may have felt differently if the city was building a road, or doing something for public use, and not giving away their heritage for private gain.

"I think some of our freedoms are disappearing because of economics. Money is really starting to rule this country", says Dudko.

More Trouble in Texas

2005-06-25T10:54:00.000-04:00

The Kelo decision has emboldened developers and their political buddies. Like this, in Freeport, Texas (watch the video):

You dreamed of the day you would own it. You saved money to buy it and hoped to live in it for years. So what would you do if the city bulldozed your home in the name of economic development? It can.

The city wants to use eminent domain to take 300 feet of Western Seafood's property for private economic development.

The United States Supreme Court ruled Thursday local governments may take homes and businesses, even against the owner's will, to build shopping mall or hotels.

It's a landmark decision with huge implications. It's being closely watched in Freeport where there is a power struggle over property.

For more than half a century, shrimp boats have docked outside Western Seafood in Freeport. It is one of the few businesses along the Brazos River -- at least for now.

"When people hear about eminent domain, they usually think about roads and bridges and tunnels being built," said Wright Gore, business owner. "But in this case, this is purely for taking from one private property owner and giving to another. And in this case it's our next door neighbor."

Gore is trying to save his grandfather's business. The city wants to use eminent domain to take 300 feet of Western Seafood's property and let developers who own the adjacent land build a marina, restaurants and a hotel along the waterfront.

"This is to take an area that is very much underutilized and to utilize it to the fullest extent to move this city forward," said Mayor Jim Phillips, Freeport.

New businesses would generate new revenue for the city.

Freeport said it now gets about $37,000 in property taxes from the area. The city estimates that after the area is redeveloped, taxes would bring in $400,000 a year to Freeport.

It looks like people are trying to do something about it.

Football is More Important that Freedom in Dallas

2005-06-25T10:47:00.000-04:00

We all love NFL football, right? If you want to give up your home to make way for a new stadium and condos, well, that's your right. But if you'd rather keep your home, I guess you're just out of luck. If this bothers you, write to the Dallas Cowboys and let them know:

The Arlington City Council is expected to authorize on Tuesday eminent domain proceedings against as many as 19 properties needed for a new Dallas Cowboys stadium and approve resolutions paving the way for 33 more condemnations in the coming weeks.

Mayor Robert Cluck said the properties are owned by individuals who are either unwilling to sell or are demanding an unreasonable price for their homes or lots. Some have not responded to the city's offers, he said, and a few would not allow city negotiators on their property. "If they can't make reasonable counteroffers," Dr. Cluck said, "we have to use this tool."

City officials said they would continue to negotiate with property owners through Tuesday to try to avoid the need for condemnation. However, Dr. Cluck said, some homeowners are unlikely to settle without legal action.

The city's announcement came a day after the U.S. Supreme Court released a decision confirming that cities have wide latitude in condemning property for economic development purposes. That decision, which Dr. Cluck said didn't affect the timing of next week's votes, means that federal appeals of condemnations for the stadium in Arlington are unlikely.

Robert Magnus, whose house is on the condemnation list, said he was unaware of the City Council's vote next week, but he's not surprised. He had hoped that the Supreme Court would help him with its Kelo v. New London case.

Mr. Magnus would not say how much the city has offered him for the house he's owned for two years, but he said it wasn't enough to pay off his mortgage.
"They are just giving me pennies and telling me to get out," he said.

A Good Start in Connecticut

2005-06-25T10:43:00.000-04:00

Some promising news:

A day after a ruling by the Supreme Court cleared the way for the city of New London to replace a residential neighborhood with a private development, Gov. M. Jodi Rell said on Friday that the Connecticut legislature "ought to consider" the state's eminent domain laws.

Mrs. Rell, a Republican, issued a cautious response to the closely watched court ruling, one that found economic development, not just blight removal, an appropriate use of the government's power of eminent domain. Last year, the Connecticut Supreme Court upheld the use of eminent domain to take 15 homes in New London that were condemned in 2000.

Join the Castle Coalition

2005-06-24T13:22:00.000-04:00

If you want to do something about eminent domain abuse, join the Castle Coalition, created by the Institute for Justice to help victims of eminent domain abuse.

This group has had great success, and obviously, there's a lot more to be done.

Eugene Volokh explains:

Kelo was litigated by the Institute of Justice, a first-rate libertarian public interest law firm; I think it's much to their credit that they could get even 4 votes -- the last case that squarely considered this issue, Hawaii Housing Authority v. Midkiff (1984), was unanimous, and Justice O'Connor and Chief Justice Rehnquist were on the side of the government there. I don't agree with them entirely as to Kelo, but I still very much respect their work, in this case and in others.

IJ has also been very successful fighting battles in lower courts, either under state constitutions or getting policies struck down under the "rational basis" test, the same test that now applies in the eminent domain "public use" analysis. Constitutional scholars may tell you that rational basis cases are virtually impossible to win (at least unless the courts conclude that the law improperly discriminates against some group, almost never an economically defined group). But IJ somehow manages to win them.

Finally, the IJ people are masters at using their cases to marshal public opinion. That often helps them pressure the government to change its policy even without a final decision in litigation. And it also helps them use cases, whether they win them or lose them, to build pro-economic-liberty sentiment generally; they're especially good at showing how economic liberty helps the little guy.

The Danger of Apathy

2005-06-24T11:33:00.000-04:00

Right now, there is a lot of outrage about Kelo and eminent domain abuse. But in a few days, most people will have moved on, and the press will be covering the next runaway bride. Meanwhile, more people will lose their homes so that we can have more Wal-Marts and condos. I love Wal-Marts and condos. I just don't like kicking people out of their homes to build them. And I hope you don't either.

Politicians don't mind kicking people out of their homes because it doesn't cost them many votes. If 10 homes are taken for a Wal-Mart, the politicians may lost 10 votes. But thousands of people will shop at the Wal-Mart, and many of them will be glad for the development. So politicians figure they can't really lose.

We need to make them lose. It's not enough that the 10 people kicked out of their homes are outraged. We all need to be outraged. We need to go to public meetings, write letters to our papers, and boycott the companies that profit from eminent domain abuse. We need to vote people out of the office. We need to get our states to restrict eminent domain abuse. And if this doesn't work, we need to amend the Constitution.

Please keep this issue alive, even if another bride decides to run away.

2005-06-24T11:03:00.000-04:00

Haloscan commenting and trackback have been added to this blog.

Hope in Texas

2005-06-24T10:03:00.000-04:00

Rep. Frank Corte Jr. is trying to do something about eminent domain abuse in Texas:

Texas' cultural commitment to private property rights surfaced quickly Thursday as a state legislator moved to blunt the impact of a U.S. Supreme Court ruling that local governments may seize land for private development.

Hours after the court's 5-4 ruling came down, Rep. Frank Corte Jr., R-San Antonio, said he would seek "to defend the rights of property owners in Texas" by proposing a state constitutional amendment limiting local powers of eminent domain, or condemnation.

Houston Mayor Bill White and Harris County Judge Robert Eckels offered assurances that the city and county do not intend to condemn land for private development projects.

But officials in the beachfront town of Freeport, south of Houston, said they would move aggressively to condemn property owned by two seafood companies to clear the way for an $8 million private marina.

. . .

Corte said he would ask Gov. Rick Perry to add the condemnation issue to the agenda of the special legislative session now under way so that the proposed constitutional amendment could appear on the November ballot.

Perry spokeswoman Kathy Walt said the governor would consider requests to add items to the agenda, but probably not until legislators resolve the school finance issue. She said Perry supports property rights and was concerned about the Supreme Court ruling.

Corte said in a news release that his proposed amendment would "limit a local governmental entity's power of eminent domain, preventing them from bulldozing residences in favor of private developers."

Forcing 500 People to Move

2005-06-24T09:09:00.000-04:00

More in New Jersey:

SOME CALL IT BLIGHT, THEY CALL IT HOME
Thursday, June 23, 2005
BY ANA M. ALAYA Star-Ledger Staff

Beatrice Lambert, a 63-year-old legal secretary, worries about losing her cats, Tinkerbell and Abigail, and the garden she dedicated to her late son, if she's forced to sell the mobile home she's lived in for 20 years.

Joe Depamphilis, a 39-year-old handyman with a failing kidney and an ailing mother, is concerned he won't find affordable storage space for the tools he has amassed over two decades.

"We're worried about losing a way of life," said Lambert, a resident of Brown's Trailer Court.

"We put down our roots here," Depamphilis said.

What Lambert and Depamphilis see as home, borough officials see differently. They see 20 acres of blight on prime real estate bordering Route 46 in Lodi.

If a judge upholds Lodi's plans to replace two trailer parks, Brown's and the nearby Costa Trailer Court, with upscale senior housing and shops, nearly 500 residents will need to relocate.

Reform Efforts Watered Down in Indiana

2005-06-24T08:57:00.000-04:00

How does a good bill get watered down? Like this:

State Rep. David Wolkins, R-Winona Lake, sponsored a bill during this year's legislative session that would have prohibited property seizures for "commercial use" such as residential, retail or industrial development. He called Thursday's court ruling "absolutely wrong."

Wolkins' bill was amended to instead authorize formation of a study committee to help set guidelines for such seizures, including how much money should be paid displaced property owners and the relative significance of blight and potential economic development.

Crisis in New Jersey

2005-06-24T08:47:00.000-04:00

Eminent Domain abuse is rampant in New Jersey:

In 55 N.J. towns, planners watch as the light turns green
Friday, June 24, 2005
BY ALEXANDER LANE Star-Ledger Staff

To a growing number of New Jerseyans, yesterday's Supreme Court decision was a very personal defeat.

They are those whose towns have instructed them to hand their property over to private developers, for the greater good.

Many are struggling small business owners in the grittier parts of town -- not the sort who normally make time to follow Supreme Court decisions.
But they were waiting for this one.

"It's sort of shocking to read what these judges have come up with on that there New London (Connecticut)," said Sal Quagliariello, an 83-year-old Edison man fighting an attempt to turn his bus company into a Walgreens.

"It seems like money has got the best of the laws."