God, don't make me reconsider my position AGAINOriginally posted by gkmo62u
David Sucher, over at City Comforts blog (a great book, by the way) has another excellent series of posts on this. I don't agree with him that government can nefver play a role in economic development, but I agree with his take on takings.
My office was abuzz with the news and was thinking that this would be a great way to get rid of the mobile homes (aka - affordable housing) in some of the rural counties in our area. Excellent.
For Homeowners, Frustration and Anger at Court Ruling
Headline and Article from the NY Times:
http://www.nytimes.com/2005/06/24/na...tml?oref=login
Registration Required.
Highlights:
"The rights of owners have become populist causes in many places as local governments have grown bolder in efforts to fatten their tax bases.
"I think there's going to be an unbelievable popular backlash to this decision," said Dana Berliner, a lawyer at the Institute for Justice, a libertarian group that represents the New London homeowners and has taken dozens of other eminent domain disputes. "The court has just told homeowners that the government can take their house for someone who pays more in taxes."
Nine state supreme courts, including those in Illinois, Michigan and Washington, have forbidden the use of eminent domain simply to bring in more revenue and jobs."
Oddball
Why don't you knock it off with them negative waves?
Why don't you dig how beautiful it is out here?
Why don't you say something righteous and hopeful for a change?
From Kelly's Heroes (1970)
Are you sure you're not hurt ?
No. Just some parts wake up faster than others.
Broke parts take a little longer, though.
From Electric Horseman (1979)
Yes, I know that many of you Communist planners like to dictate to the masses how their land should be used, but many of us see through this BS and see this ruling for what it is....a blank check for developers to screw over small businesses and private landowners. It's unAmerican and most of us know it. Yes, eminent domain should perhaps be used from time to time, but the court basically left it wide open here. Many states will block abuses of the eminent domain tool, but others that are more buddy-buddy with developers and the Chamber of Commerce types (ironically, the red states) will just leave it wide open, potentially screwing over farmers, small business owners, and private citizens...namely, many of the people who helped build these communities in the first place!
Don't forget Monty, many of us communist planners are land and home owners and small business owners too. I do not support this decision one bit.
Dude, I'm cheesing so hard right now.
I also fully expect most state legislatures to address this issue at their level in a hurry.
The only private entities that, IMHO, should have the power of eminent domain, or power of government-assisted eminent domain, are infrastructure providers such as railroads, toll highway operators and electric and other utilities, in order to build needed new facilities.
Mike
Last edited by mgk920; 24 Jun 2005 at 4:12 AM.
Good collection of articles from the The Day, New Londons newspaper:
Decision Puts Issue Of Eminent Domain Back In States' Hands
Legislatures are free to pass laws narrowing right to take property
http://www.theday.com/eng/web/news/r...2-6c1c87f69fba
The article goes on to discuss what is happen/ed/ing in Utah (Sam' Law), Virginia, and Missouri.“We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power,” Justice John Paul Stevens wrote for the majority. “Indeed, many states already impose public use requirements that are stricter than the federal baseline.”
Other Articles:
> Supreme Court Ruling Upholds City's Use Of Eminent Domain
> Eminent Domain Chronology
> Justice O'Connor Attacks Ruling In Stinging Dissent
> Sentiment In City Seems Largely Against Supreme Court's Ruling
> Some Homeowners Vow To Stay Despite Ruling Against Them
Oddball
Why don't you knock it off with them negative waves?
Why don't you dig how beautiful it is out here?
Why don't you say something righteous and hopeful for a change?
From Kelly's Heroes (1970)
Are you sure you're not hurt ?
No. Just some parts wake up faster than others.
Broke parts take a little longer, though.
From Electric Horseman (1979)
All these years the people said he’s actin’ like a kid.
He did not know he could not fly, so he did.
- - Guy Clark, "The Cape"
I believe it is morally wrong to throw people from their homes. A recent PBS special ran a historical perspective of Dodger Stadium in L.A. being built over a low income neighborhood. The filming of families being forcibly removed from their homes was particularly disturbing. I do not look forward to witnessing the same actions in Connecticut.
However, I do think it is important for the Courts to uphold a broad interpretation of "public use" in the Fifth Amendment. I think this ruling for me means that there will always be those who are left out of the "public interest" debate. Another example of "You can't please everybody".
Yes, but public use is just that. Built for the benefit of the public. Sure a econ dev project might bring in jobs, which could be considered a public benefit. But that hinges on the risk of private investment. Those jobs may never be provided at the numbers or wages estimated by the benefiting company/person.
A taking for a road, rail, trail, park or other public use will be there no matter what
Dude, I'm cheesing so hard right now.
shocking that those two fairminded newspapers walk in lock step
You see, this is where people disagree... I'll play devil's advocate for a moment. Roads benefit the automobile driving public (and auto industry), and rail benefits railroad companies more than the trucking industry. Even if I don't own a car, some may argue that the highway provides me an indirect benefit at best and (with the noise, smog, and how that highway cut my low-income neighhborhood off from the city) a detriment at worst. Who exactly the benefiting public is tough to pin down too. Is "the public" more than 50% of residents? More than a majority of voters? Is a public use something everyone can potentially benefit make use of? I certainly can't see myself using the railroad line. Is it a use more than 50% (again whom) can benefit from? There is a lot of room for political wiggling.
Personally I think this decision stinks.
Had a chance to read the opinions over lunch. Can't believe I find myself agreeing with Clarence Thomas on something. I still find the majority opinion that there is a "public use" here rediculous. Sure, New London will see some benefit, but it still shocks me to hear that secondary benefits from economic development are now considered "public use" under the takings clause by the Court.
I maintain my position that Eminent Domain for economic development is inappropriate, and plan on sending a letter to the local state legislative contingent to encourage them to develop legislation to limit eminent domain from being used for economic development in NH.
Also, for those interested: http://www.planning.org/amicusbriefs/opedkelo.htm
The APA Executive Director speaks to the decision....yet another tick mark for me on where I disagree with APA National....
Last edited by NHPlanner; 24 Jun 2005 at 12:54 PM.
"Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, The Conservation Fund
Well I read it last night, along with the concurrences and O'Conner's dissent (I didn't get past that).
The court came to its conclusion based on:
- Prior precedent. Condemnation for privately owned or used land has a long history, including use by railroads (private owners) and housing projects (private users). In addition there was a case called Fallbrook Irrigation Dist. v. Bradley in which condemnation was used to allow drainage of private land to open it for development.
- Desire to avoid having the courts decide what constitutes an "improvement" for the public good, arguing that that should be best left to legislators. The majority wrote:
Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power. Berman, 348 U. S. 26; Midkiff, 467 U. S. 229; Ruckelshaus v. Monsanto Co., 467 U. S. 986. Pp. 6-13.
O'Conner addressed Bradley in her dissent by writing:
(emphasis added)As the Court notes, the "public purpose" interpretation of the Public Use Clause stems from Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 161-162 (1896). Ante, at 11. The issue in Bradley was whether a condemnation for purposes of constructing an irrigation ditch was for a public use. 164 U. S., at 161. This was a public use, Justice Peckham declared for the Court, because "[t]o irrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to landowners, or even to any one section of the State." Ibid. That broad statement was dictum, for the law under review also provided that "[a]ll landowners in the district have the right to a proportionate share of the water." Id., at 162. Thus, the "public" did have the right to use the irrigation ditch because all similarly situated members of the public--those who owned lands irrigated by the ditch-had a right to use it. The Court cited no authority for its dictum, and did not discuss either the Public Use Clause's original meaning or the numerous authorities that had adopted the "actual use" test (though it at least acknowledged the conflict of authority in state courts, see id., at 158; supra, at 9, and n. 2). Instead, the Court reasoned that "[t]he use must be regarded as a public use, or else it would seem to follow that no general scheme of irrigation can be formed or carried into effect." Bradley, supra, at 160-161
So the point is that Bradley does not necessarily apply because the irrigation ditch in question actually benefited far more people than just the land owner pushing it forward. Justice O'Conner takes issue with the majority's citation of Bradley without analysis of this fact. In Kelo, the only individual receiving a direct benefit from the government action is Pfizer, and the "public purpose" is only met by the promise by that company of new jobs in the community. Thus, Kely is a case, unlike Bradley, where the only possible public benefit is in the form of "economic development."
Thus, Justice O'Conner writes:
Unlike the majority, Justice O'Conner also analyzes the actual meaning of the words "public use" from the fifth amendment, and thus takes issue with the majority's decision to defer to the legislators:Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process.
Justice Thomas (I've skimmed but not read his dissent) wrote in even harsher language:Where is the line between "public" and "private" property use? We give considerable deference to legislatures' determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning.
[...]
In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public--such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words "for public use" do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.
Drawing the issue of "improvement" to its logical conclusion, Justice O'Conner addresses a part of planning that I've long found troubling, the idea of "best possible use:"There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a "public use." To begin with, a court owes no deference to a legislature's judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the "public purpose" interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature's determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U. S. 573, 589-590 (1980), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U. S. ___ (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales,
(Note: The things in parenthesis are references to previous court actions, I removed the citations to make them easier to read)The logic of today's decision is that eminent domain may only be used to upgrade--not downgrade--property. At best this makes the Public Use Clause redundant with the Due Process Clause, which already prohibits irrational government action. [...] For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. 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. (taking the homes and farm of four owners in their 70's and 80's and giving it to an "industrial park"); (attempted taking of 99 Cents store to replace with a Costco); (taking a working-class, immigrant community in Detroit and giving it to a General Motors assembly plant), (describing takings of religious institutions' properties);
Needless to say, I agree with Justice O'Conner and the other dissenters. This decision eliminates all meaning that the Public Use clause might have had. Economic Development is such a specious concept, as is "Best Possible Use," that virtually anything can be condemned with that justification.
Moreover, I found the "bulldozer bureaucrat" language (I love that term, thanks mendleman) used by the majority particularly grating. For instance, they used a case of an urban renewal project in Washington DC where a successful department store was being bulldozed because it was in a "blighted" district and The Plan called for the whole area to be razed. The majority wrote:
(emphasis added)The owner of a department store located in the area challenged the condemnation, pointing out that his store was not itself blighted and arguing that the creation of a "better balanced, more attractive community" was not a valid public use. Id., at 31. Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area "must be planned as a whole" for the plan to be successful. Id., at 34. The Court explained that "community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis--lot by lot, building by building." Id., at 35.
Ignoring legal and constitutional issues, enlightened planners are well aware that most such plans fail miserably and true community improvement must come by building upon what exists. The problem is that there's always pressure from the "bulldozer bureaucrats" and politicians to simply "get rid of it all and start over." That is, of course, never a good solution, and it would have been nice to have legal restraints for when reasoning and persuasion fails.
Moreover, I think anyone who follows this board knows how anxious local politicians are to use eminent domain and other heavy handed tactics to get rid of "them." I think we all are aware of the stakes involved in leaving this power up to the legislatures. Undoubtedly, this decision will go badly for very many people.
I just need some clarification.
Is this the first time the US Supreme Court has ruled on this issue?
Because, the Poletown case in Detroit in 1981, approved by the Michigan Supreme Court, allowed the City of Detroit and Hamtramck to do exactly what New London is doing.
So, I thought this ruling by the US Supreme was only reaffirmation of previous precedent, not new precedent. I suppose I'm mistaken.
Off-topic:
jordanb, I actually said steamroller bureaucrat, but bulldozer bureaucrat is better though...we can both take the credit for it...
Last edited by mendelman; 24 Jun 2005 at 1:49 PM.
I'm sorry. Is my bias showing?
The Poletown case was one of the cases of abuse allowed by lower courts mentioned by O'Conner (in the parenthesis above). I didn't include the citation so here it is: Poletown Neighborhood Council v. Detroit, 410 Mich. 616, 304 N. W. 2d 455 (1981)
It would appear from that citation that it was decided by the Michigan courts and was not reviewed by the supreme court.
A road widening project nowadays frequently has provisions for bike lanes, modern sidewalks, bus stops, street cars, and improved crosswalks. benefits to all mode of public locomotion.
Rail lines are muli purpose and can carry both passengers and goods.
Condemnation should be used infrequently, and with as little impact as possible. It should not be used to assemble land for a lazy developer or some pie-in-the-sky "public" project.
The "higher and better use" for a property wording is confusing to me. Does this mean that land could not be taken for roads? parkland? Obviously, there could be higher or better uses for a piece of land than a park...in terms of taxable value.
Dude, I'm cheesing so hard right now.
This is scarry. I hear people saying that the current property owners will be "fairly compensated". Fair would be the case if they were given the choice to sell, not forced. Why should they be uprooted because a local official was paid off by big business. I think this should be described as "homeowners, your property is now up for auction", and good luck outbidding big business. Another case of the Federal Gov. overstepping the lines.
Regrets, I've had a few; But then again, too many to mention.
Leverage. I'm sure there are plenty of banks and investors willing to partner up with the little old lady if the price of her option is attractive enough. Remember the goal isn't for the old lady to own the mall, but to ensure that she is more than properly compensated for the loss of her house, and to ensure that the project was absolutely necessary for community development.What planet do you live on where private property is an absolute right? Every type of property has conditions attached. Urban property has for a condition that the city can reorganize your property for the city's general welfare without your consent. That's an absolutely inescapable fact of city-building and is a risk that a property owner assumes when purchasing property in a city.so true-color urbanists have no respect for private property? The issue of this case is that private property can be taken and given to a private entity for "economic development" and higher and better use.
Your house for a 200,000 sf office; the mom and pop bakery for the mixed use retail on first floor, condos above.
You WalMart haters will love this.
This ruling allows an entity to take property for economic development. So, how long before one of them takes one of the old empty Walmart locations with the no compete clauses and sells it to a competitor?
“As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the State is not far from its fall”
Jean-Jacques Rousseau
I think that this stuff needs to be looked at on a case by case basis. There are numerous situations where communities totally abuse eminent domain, I should know because I used to work in one. However there are many cases where taking property for economic development is necessary. The New London Case seems like an abuse to me.
The City where I worked never had too many instances where they used it, but they used the threat of eminent domain to strong-arm property owners into selling the City their land, which would then be sold to developers proposing uses that generated more tax revenue. There were cases where it was needed due to blighted, contaminated properties and there were other cases where decent buildings with high occupancy rates were threatened with eminent domain until they sold to the City. One thing I will say is that whatever replaced the property that the City bought was much nicer than what was there before and generated more revenue for the City and thus taxes remained lower than numerous surrounding communities, so the stated public purpose (economic development) was achieved.
"I'm a white male, age 18 to 49. Everyone listens to me, no matter how dumb my suggestions are."
- Homer Simpson
I don't have a problem with it. It seems pretty much aligned with previous eminent domain cases. The signifigance is probably blown out of porportion given precedent.
Check out George Will's Opinion:
Rights of individuals lose out to judicial restrainthttp://www.indystar.com/apps/pbcs.dll/article?AID=/20050625/OPINION/506250345/1002
Highlight:
Most conservatives hoped that, in the most important case the court would decide this term, judicial activism would put a leash on popularly elected local governments and would pull courts more deeply into American governance in order to protect the rights of individuals. On Thursday, conservatives were disappointed.
Liberalism triumphed Thursday. Government became radically unlimited in seizing the very kinds of private property that should guarantee individuals a sphere of autonomy against government.
Conservatives should be reminded to be careful what they wish for. Their often-reflexive rhetoric praises "judicial restraint" and deference to almost unleashable powers of the elected branches of governments. However, in the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary's indispensable role in limiting government.
Oddball
Why don't you knock it off with them negative waves?
Why don't you dig how beautiful it is out here?
Why don't you say something righteous and hopeful for a change?
From Kelly's Heroes (1970)
Are you sure you're not hurt ?
No. Just some parts wake up faster than others.
Broke parts take a little longer, though.
From Electric Horseman (1979)
Or a closely related subject where a city might just claim eminent domain over the 'no compete' deed restriction? (Maybe that wouldn't be a bad thing, after all.
Mike
I live in a city where some people will be scheming to take advantage of the court decision. In the first place we have no urban planners of any kind on the city or local Redev. Agencies staff. They always bring highly paid consultants in to make the pitch or slant things the way they want. They actually got caught useing ED illegally. HUD refused them the use of federal funds to make the settlements with the owners. So it had to be paid out of general fund budget. I only bring this up to show that their are people out there who have no problem taking advantage of certain situations for political friends and reasons. I left a renewal agencies just for these. They feel they are not accountable for their actions. This will spur much debate nationwide. Those who can pay will definitly get to play.
Quote
