Eminent domain latest issue to go before high court: Marshalltown (IA) Times-Republican, 2/25/05


"Eminent domain: a right of a government to take private property for public use by virtue of the superior dominion of the sovereign power over all lands within its jurisdiction."
— Websters

Local, state and federal governments have long used eminent domain to condemn private property to make way for new schools, highways, public buildings, etc. But, can municipalities use it for economic revitalization?

Take the case of a group of property owners in New London, Conn., who are challenging the law on the grounds that local governments can't take their property and give it to private developers. The case was heard by the U.S. Supreme Court this week and its decision could have far-reaching effects nationwide including right here in Iowa.

In New London, the city is seeking to condemn a group of homes including some that have been owned by several generations. The city wants the properties so that a developer can construct a riverfront hotel, health club and office buildings that will bring in more jobs and much needed additional tax revenue.

The city has been in decline for several years and it needs a giant economic boost. The property owners argue that it is an unconstitutional taking of their homes.

Eminent domain has become a very popular tool as it relates to economic development in recent years And, we are sure there are cases where it has been abused.

So we think condemnation should only be used as a last resort. But sometimes just a few landowners can stop desperately needed progress, holding out for an outlandish sum of money. Property owners should always be guaranteed a fair price and special consideration should be given for how long a family has owned the property.

A lot of public officials will be keeping a close eye on the nation's high court in the coming months.

Times-Republican: www.timesrepublican.com

Atlantic Yards foes watch as eminent domain case reaches Supreme Court: The Brooklyn (NY) Papers, 2/25/05

By Jess Wisloski

The U.S. Supreme Court struggled on Tuesday to balance the rights of property owners against the goals of town officials who want to sweep away old neighborhoods and turn the land over to private developers.

Riverfront residents who are suing the town of New London, Conn., say their working-class neighborhood is slated for destruction under the governmental authority of eminent domain, primarily to build an office complex that will benefit a pharmaceutical company that built its research and development headquarters nearby.

The outcome of the case could significantly affect Brooklyn homeowners who live in buildings within the footprint of developer Bruce Ratner’s proposed arena to house his New Jersey Nets basketball team in Prospect Heights.

That plan, known as Atlantic Yards, also relies on the state’s power of eminent domain, to condemn nearly 11 acres of private property for Ratner’s six-square-block development, which also includes 17 commercial and residential high-rises on property emanating from the intersection of Atlantic and Flatbush avenues.

Several representatives from the Prospect Heights neighborhood traveled to Washington, D.C., Tuesday to hear the arguments in the New London case.

Sitting in the courtroom were Councilwoman Letitia James, who represents Prospect Heights, Fort Greene and Clinton Hill; civil rights lawyer Norman Siegel, who has been retained to represent Prospect Heights residents in a potential lawsuit against the Ratner plan; and a legal volunteer for the anti-arena group Develop — Don’t Destroy Brooklyn, which maintains that the proposed 19,000-seat arena, as well as the up to 5,800 units of housing planned by Ratner are a far cry from the legitimate public use for which eminent domain is typically called into play.

An attorney representing the City of New London, Wesley Horton, told the high court justices on Tuesday that the revitalization project will create new jobs and trigger much-needed economic growth. He argued that increased tax revenue is enough of a legal basis for the city to invoke eminent domain and compel the residents to sell their homes.

If a city wanted to seize property in order to turn a “Motel 6 into a Ritz-Carlton, that would be OK?” asked Justice Sandra Day O’Connor.

“Yes, your honor, it would be,” Horton replied.

James said she had high hopes for the outcome of the Connecticut case, based on the questions raised by the justices.

“[O’Connor] really hit the nail right on the head, when she described how one revenue-generating entity can replace another,” said the councilwoman. “It’s a complete expansion of the public use clause laid out in our Constitution.”

The justices expressed sympathy for the longtime residents of the Fort Trumbull section of New London. At the same time, they questioned whether the court has the authority to stop the town’s plans.

The outcome could have significant implications nationwide.

In recent years, there have been more than 10,000 instances of private property being threatened with condemnation or actually condemned by government for private use, according to the Institute for Justice. The group represents the New London residents who filed the case.

Scott Bullock, representing the neighborhood residents, argued that government cannot take private property from one owner and provide it to another just because the new commercial project will boost the city’s finances. The city plans to give the developers a 99-year lease for a dollar a year.

“More than tax revenue was at stake,” Justice Ruth Bader Ginsburg replied. “The town had gone down and down” economically.

O’Connor questioned whether the homeowners were asking the court to “second-guess” the governmental power of eminent domain.

The legal arguments concern the Fifth Amendment prohibition against taking private property for public use without just compensation.

The City of New London says it is willing to pay a fair price.

“You are paying for it, but you are taking it from somebody who doesn’t want to sell,” Justice Antonin Scalia told Horton.

Several justices focused on the residents’ argument that the court should impose standards for governments to meet when they want to sweep away neighborhoods for economic revitalization.

“A lot of times governments have no clue what they’re going to do with the property,” Dana Berliner, co-counsel for the residents, said after the court arguments ended.

New London, a town of less than 26,000, once was a center of the whaling industry and later became a manufacturing hub. The revitalization project is a few miles downriver from the U.S. Navy’s submarine base in Groton.

Likewise, Prospect Heights, with a population of roughly 29,000, at one time featured many factories on the site where the arena and housing complex is proposed.

With many of those same buildings now vacant or demolished, Forest City Ratner promises their new residential, office and retail complex to bring in 10,000 new jobs during the construction phases and activity to help stimulate what they have called a “blighted” area, a third of which is occupied by Metropolitan Transportation Authority rail yards over which the developer would like to build.

The MTA would be paid a fee for use of the air rights over the yards.

The starting point for Tuesday’s arguments was a Supreme Court ruling five decades ago that allowed governments to take private property for urban renewal.

The neighborhood’s lawyer, Bullock, seized on that case, contending there is a difference between the urban blight of 1954 and the current circumstance of an economically depressed town.

Justice Anthony Kennedy questioned Bullock’s position, saying that economically depressed areas can quickly become blighted areas.

Ginsburg also wondered whether the urban renewal case offers much hope for the neighborhood. She pointed out that the issue in that case involved a department store that was not contributing at all to the blight in the area.

The court nonetheless cleared the way for local government to take the department store’s property for the renewal project.

But Councilwoman James said she was most encouraged by the line of question coming from Justice Scalia.

“Justice [Antonin] Scalia really laid into them,” she said, when questioning the respondent on public use.

Scalia asked Horton, “So if B pays more than A, that’s acceptable?” in the case of giving one privately owned property to another private owner, to which Horton replied, “Yes.”

“They fired tough questions both at the plaintiff as well as the respondent,” said James. “Based on the questions asked, I was encouraged. The justices, as well as the respondents, are concerned about the status of eminent domain.”

New London attorney Daniel Krisch said he was secure in the city’s argument.

“It went very, very well,” he said. “The court, as they always do, asked a lot of incisive questions but the court recognized — at least the questions suggested that they recognized — that they couldn’t endorse the homeowners’ position without overruling 100 years of their own precedent, and that’s not something they’re going to do.” But Bullock, the homeowners’ lawyer, said, “Almost all of the justices seemed troubled by what was going on, and how cities seem to be pushing the envelope of eminent domain.

“That was one sentiment of the court that we found to be encouraging.”

Chief Justice William Rehnquist, who is battling thyroid cancer, did not attend the arguments and will be absent for the next two weeks. He has not attended arguments since October. Justice John Paul Stevens was out of town and missed the day’s arguments.

Daniel Goldstein, a spokesman for Develop - Don’t Destroy Brooklyn and a homeowner living within the footprint of the Prospect Heights arena — by legal terms, the only “holdout” in his Pacific Street condominium who has not sold or agreed to sell his apartment to Ratner — said it was hard to tell which way the court would go.

“They’re even more difficult to read at both sides because two of the justices weren’t there,” Goldstein said, “but it seems like they’re going to look at the issue of economic development very closely.

“They may not say economic development is not a public use, but they will write a decision that will put more of an onus on cities and developers to prove that their proposed development is economic development.”

“We’re excited to hear what they’ll say come June,” he added.

Siegel, the former head of the New York Civil Liberties Union, said that whatever happens, he’s sure clearer language of the constitutional clause demanding “public use” for eminent domain will be written.

Said Siegel, “I’m cautiously optimistic that the property owners in the New London case will prevail, and if they prevail the property owners in Prospect Heights potentially can prevail.”

The Brooklyn Papers: www.brooklynpapers.com

Eminent domain on the docket: Bogalusa (LA) Daily News, 2/25/05

By Eleanor Davis

Yesterday, a New London, CT-based fight over eminent domain was handed to the U.S. Supreme Court that could determine the future of governmental seizure of property for economic development. Meanwhile, residents in the Oak Grove Community are fighting their own battle.

Last month, Oak Grove was selected by the Washington Parish Reservoir Commission as the site for a proposed reservoir, touted as a source of potable water and economic development for the parish.

Liz Stokes is the spokesperson for a group of concerned residents in and around the area who fear their homes will be taken by the reservoir for public and private use.

"We're trying to organize to best use our time and energy in order to stop the reservoir," Stokes said.

Stoke meets with approximately 50 concerned residents on a weekly basis to use their energy in fighting the reservoir. Although the group is not opposed to economic development, Stokes said they find the Oak Grove community to be an unsuitable site.

One concern Stokes has is the possible runoff from a nearby landfill site. "Where I live is right down the road from the landfill," Stokes said, "and the landfill runs into the creek that will be in the lake. I don't think anybody wants to drink anything off of garbage," she said.

The reservoir must be constructed within the provisions of the Clean Water Act, which disallows the release of any pollutants harmful to fish and wildlife into navigable waters.

Stokes also said endangered species, including the gopher tortoise, could also be affected by the reservoir. Currently, Stokes is working with an independent group to "get them mapped out where they are."

Stokes is also doubtful that the reservoir is needed to provide drinking water in the area. "I've been told that…we're not in need of this water," Stokes said. "The ground out here's not going to hold water; where we live, water doesn't stay very long."

Stokes said the group would have little objection to a reservoir "if it would be in a smaller place."

"We don't want anyone to lose their land…that's unchristian, as far as I'm concerned," she said.

The Commission released a statement to The Daily News that Denmon Engineering would begin the process of identifying property owners affected by the reservoir. Although permission is required for engineers to be on site, Stokes said she was doubtful if any residents would welcome engineers with open arms.

"I've told people myself at the meetings to lock their gates," she said. "We're not going to give up even if they think we are, they've got another question coming."

An impending decision by the U.S. Supreme Court may impact the future of the reservoir project. Supreme Court justices expressed serious doubts yesterday whether the court has the authority to protect some residents in New London, CT who face losing their homes to the city's ambitious program for economic revitalization.

Susette Kelo and several other homeowners filed a lawsuit last week after city officials announced plans to bulldoze some residents to clear the way for a riverfront hotel, health club and offices. The residents refused to move, arguing it was an unconstitutional taking of their property.

The case's outcome will have significant implications for so-called eminent domain actions.

However, as the town has "gone down and down" economically over the years, Justice Ruth Bader Ginsburg said, and the economic benefits of a property seizure could make up for lost revenue.

There have been over 10,000 instances in recent years of private property being threatened with condemnation or actually condemned by government for private use, according to the Institute for Justice. The group represents the New London residents who filed the case.

The issue revolves around whether a government is serving a public purpose when it uses its power of eminent domain to take land. The Fifth Amendment prohibits taking private property for public use without just compensation. The New London is not about the amount of compensation being offered, but whether the government can take the property at all.

Over the years, the Supreme Court has deferred to the decision-making of elected state and local officials.

The court said in 1954 that it is legal for urban renewal to encompass non-blighted commercial buildings in a blighted neighborhood. In 1984, the court upheld Hawaii's land reform law that broke the grip of large landowners, with property being taken and then resold to others.

More recently, many cities and towns have been accused of abusing their authority, razing nice homes to make way for parking lots for casinos and other tax-producing businesses.

New London, a town of less than 26,000, once was a center of the whaling industry and later became a manufacturing hub. More recently the city has suffered the kind of economic woes afflicting urban areas across the country, with losses of residents and jobs. City leaders say the private development will generate tax revenue and improve the local economy.

"The undisputed facts regarding the steady deterioration of New London's economy from the 1970s onwards demonstrate the dire need for such a development project," the city told the court.

The New London neighborhood that would be swept away includes Victorian-era houses and small businesses that in some instances have been owned by several generations of families.

Among the New London residents in the case is a couple in their 80s who have lived in the same home for over 50 years.

City officials envision a commercial development that would attract tourists to the Thames riverfront, complementing an adjoining Pfizer Corp. research center and a proposed Coast Guard museum.

Meanwhile, Oak Grove residents continue looking into preventing the state's use of eminent domain to construct a reservoir that has been promised by reservoir consultant Mike Thompson to bring recreation and tourism to the area.

"What it all boils down to is a pleasure lake for the rich and famous," Stokes said. "We may be rednecks out here, but we're not stupid."

The Daily News: www.edailynews.info

High court should limit eminent domain: Rocky Mountain News (Denver CO), 2/25/05

New London residents ask to block forced sale

The attorney for New London, Conn., who argued the city's eminent domain case before the U.S. Supreme Court Tuesday, has said "I don't think there's a more important case on their docket this year." Neither do we; what's at stake is whether the concept of private property has any remaining constitutional meaning at all.

Unfortunately, New London is arguing that it doesn't. The city claims the authority to take people's homes to develop a new office park, adjacent to a Pfizer research facility, along with related projects such as a hotel, a riverwalk, and office space. New London's city council hopes the complex will generate new jobs and produce higher tax revenues it can use to provide public services.

The constitutional question is not whether government can wield eminent domain to take private property for public use. Of course it can, and the U.S. Constitution explicitly provides for it in the Fifth Amendment: "nor shall private property be taken for public use, without just compensation."

But "public use" was once limited to roads, for example, or land for government buildings. Or, by reasonable extension, other kinds of infrastructure that need contiguous property even if they happen to be operated by private entities - railroads, for example, or pipelines.

However, the scope of condemnation has been stealthily and steadily expanding to allow the taking of private property for the benefit of other private parties, on the grounds that there will be some incidental public benefit. Urban renewal, for instance; courts have upheld condemnation for the purposes of reclaiming blighted areas. Or pure economic development, as in the case of New London.

But under that last rubric, no property is safe. The city of Arvada tried to condemn part of a privately owned lake - an amenity, not a blight - to accommodate a Wal-Mart, arguing that the lake brought in little or no sales tax while the Wal-Mart could generate millions of dollars annually. The state Supreme Court ruled unanimously last year that the city could not act without a hearing on whether the area was blighted. The state legislature passed a measure that put broad limits on a city's right to condemn land for urban renewal or open space.

The New London homeowners are merely fighting to keep their cozy Victorian houses with riverfront views. If the high court rules in favor of the city, landowners will find themselves in a country where "the government can take somebody's land simply under the prospect of getting more tax dollars out of the new use," Scott Bullock of the Institute for Justice, which is representing the homeowners, told National Public Radio.

Charming tiny bungalows fronting Wash Park? Yes, they're pricey now, but they don't bring in nearly as much property tax revenue as high-rise luxury condominiums would. Condemn them, and tear them down. Why shouldn't Downing Street look like Central Park West?

We don't mean to suggest Denver would ever commit such an act. But if New London is allowed to get away with its land grab, there will be no stopping other greedy cities from following suit. And of greedy cities and unprincipled officials, there has regrettably never been a shortage.

Rocky Mountain News: www.rockymountainnews.com


Lincoln Considers Using Eminent Domain For Hotel Project: KETV7 (Omaha NE), 2/23/05

Some Business Owners See David-And-Goliath Situation

The Capital City [of Lincoln NE] is embroiled in a battle over property owners who may be forced to relocate for a new hotel.

In December, John Q. Hammons unveiled plans to build a $16 million Residence Inn by Marriott. Lincoln plans to use it's eminent domain powers to get the land. The city said the new hotel is part of the Antelope Valley Project — a waterway that will run through Lincoln for flood control and to promote economic growth.

Samurai Sam's, a teriyaki restaurant in downtown Lincoln, has become a fixture for patrons in its current location. It would be among businesses moved if Lincoln uses eminent domain.

"They are displacing business owners so they can put in a wealthier business owner," said owner Sean Wieting. "That's completely un-American. The figures I saw won't even cover one-tenth the costs to relocate. So this is a make or break deal for us."

The proposed hotel property is two to three blocks from where the creek will run. The city said it's part of the project because it will revitalize an area declared blighted.

"It's not a David and Goliath situation, it's a balance of community needs," said Dallas McGee, Lincoln's assistant director of downtown redevelopment.

Officials said they don't want to use eminent domain and will try to compensate the businesses.

"We do want Sam's to continue. We want them in the downtown area if possible," McGee said.

University of Nebraska-Lincoln political science professor John Hibbing said cities must be careful how they use their powers.

"What we're getting into in this case is the extent to which the whole Antelope Valley project is one unified government endeavor, or is this just one guy trying to buy land under the guise of eminent domain," Hibbing said.

That's what has this business owner concerned.

"I'd be able to sleep a little bit better if they were going to put a school here or widen a road or something like that. But they are trying to put in a hotel," Wieting said.

Lincoln hasn't released specific dollar figures, but hopes to compensate businesses that have to move in such a way that they do not suffer a major financial loss.

The businesses have hired an attorney and will testify before the City Council Monday.

U.S. Supreme Court justices seem to be wary of second-guessing a law that lets local governments seize private property.

At issue in a case before the court Tuesday were efforts by the government of New London, Conn., to seize property for a riverfront development meant to spur economic growth.

In court, an attorney for some city residents said it's wrong for the government to take private property from one owner and give it to another just to boost city's finances.

But Justice Ruth Bader Ginsburg mentioned New London's run-down condition, and said more than tax revenue was at stake. Justice Sandra Day O'Connor questioned whether the homeowners were asking the court to "second-guess" the power of eminent domain.

Attorneys for the city said the city's steady decline was an "undisputed" fact. The city plan includes a hotel, health club and museum designed to draw tourists to the riverfront.

KETV7: www.theomahachannel.com

Escondido school board miswielding eminent-domain weapon: North County (CA) Times, 2/23/05


By Allen Hemphill, Escondido

When an arsonist destroys a neighborhood and drives a dozen families from their homes, we instantly recognize that neither insurance payment nor the imprisonment of the terrible offender can staunch the tears of the families.

How much worse when the destruction is the equally purposeful act of local government officials.

Eminent domain is the nuclear weapon of politicians — too easily used when it should be the absolute last resort. Our Founding Fathers placed the "taking clause" into the Fifth Amendment as the final alternative for a federal government stymied by all other alternatives. That terrible power has passed to states, counties and cities, and even down to school boards, creating a tyranny liberally wielded by even the most minor elected officials.

The Escondido Union High School District seriously considered seizing a dozen homes and at least one thriving business. At least an arsonist's fire has the advantage of being a quick death for the home, but the school board was threatening to destroy the homes, thereby terrorizing the families over long periods of time and placing them under psychological duress for month after month.

The Founding Fathers would roll in their graves if they considered the terrible power of eminent domain being used by school boards. In fact, they had never heard of a school board.

Obviously, the choice of the particular site where families lived was not the only alternative for the school board. One has to ask if the members of the school board's families lived in homes on the "Hidden Meadows" site, would this site be under serious consideration? If the superintendent owned the threatened nursery, would the site be under serious consideration?

A dozen families were seriously threatened. The threat to them was real. These are not houses. They are homes! Real people live in those homes! Men who have painted and planted; women who have designed and planned and tended the home and gardens; and children — some of whom have lived nowhere else — have chosen the colors of their rooms and left their handprints in paint on the walls.

When a security guard arsonist destroyed unoccupied homes recently in Maryland, it made national TV for days. How much worse is this purposeful destruction of homes occupied by our innocent neighbors.

This site proposal was an arson fire, played out in slow motion. I urge everyone to always rally to the side of their neighbors and put out any government-directed fire before it destroys the homes of a dozen families. If their home can be so cavalierly destroyed, your home is never safe.

There are legitimate uses for this highly destructive power, but this was not one of them — and those legitimate uses should be rare instead of common.

Unfortunately, eminent domain is common, and you can read "eminent domain" almost every time you see the word "redevelopment."

North County Times: www.nctimes.com

Eminent domain case may have imminent implications: Peoria (IL) Journal Star, 2/24/05

Supreme Court considers seizure of private land

By John Sharp

Even though Joyce and Jamel Bourazak settled with the city of Peoria for $2.2 million in 2001, the couple did not want to sell their 91-year-old cleaning business so O'Brien Field could be built. But they had to, Jamel Bourazak said Wednesday, or face what one Peoria official calls a "10,000-pound gorilla."

That gorilla was eminent domain, the government's power to condemn private property for public use.

"It leaves a bitter taste in your mouth the way they do it," Bourazak, 72, said.

A case before the U.S. Supreme Court might lessen the emotional pain experienced by the Bourazaks and other landowners when a government body requests their private property for another private development.

The nation's highest court heard arguments Tuesday in a case from New London, Conn., where a group of homeowners sued the city for taking their property for an ambitious economic development. The city wanted to raze private homes to make way for a riverfront hotel, health club and offices.

The court's decision will consider whether the government's power in forcible seizure cases have gone overboard.

The issues also question whether a government is serving a public purpose when it uses eminent domain to take land. An attorney representing the Connecticut residents argued that government cannot take private property from one owner and provide it to another just because the new commercial project will boost a city's finances.

While a court decision isn't expected until summer, some Peoria-area attorneys are bracing for what they believe could be sweeping changes to how governmental seizures of private property are handled.

Peoria attorney Joe VanFleet said if the high court's order is retroactively applied, it could have an impact on the landowners who fought with the city more than three years ago before privately owned O'Brien Field was constructed.

"I believe the most important consideration . . . is whether they issue an order that retroactively applies to past issues," he said, adding it's "impossible" to predict the ruling's effect before its rendered.

The Fifth Amendment of the U.S. Constitution prohibits taking private property for public use without just compensation. The New London case, however, is not about the amount of compensation being offered, but whether the government should take the property at all.

It's also strikingly similar to the case the Bourazaks faced when Eagle Cleaners was razed so O'Brien Field could be built along Jefferson Avenue.

"People always get the impression that you just want the money," Joyce Bourazak said. "But what you really want is your business."

Besides the Bourazaks' case, other high-profile local cases include MidTown Plaza along Knoxville Avenue.

In that case, many residents struck deals with the city after receiving notices in the mail that their property was the future site of a shopping center.

The cases were all settled before eminent domain could be used, although some of the residents left with bitterness. One older woman even said in 2001 that she would prefer to die before development occurred.

Meanwhile, attorneys said the court's ruling will probably not affect most of the typical eminent domain cases, which involve extension of roads, public utilities, parks and schools.

Locally, projects like the reconstruction of Interstate 74, Camp Street in East Peoria and Veterans Drive in Pekin will be unaffected, the attorneys said. Each of those projects has required the municipality to seize private property so the projects could move forward.

Peoria Journal Star: www.pjstar.com

Eminent domain: (University of) Oregon Daily Emerald, 2/24/05


By Travis Willse

Matt Dery's home is his castle. He lives next to his parents in the Fort Trumbull neighborhood of New London, Conn., where his family has lived for a century. But Dery and his parents may be on the move, and not because they want to.
The city of New London has invoked its powers of eminent domain, an important constitutional exception to property rights that lets government-affiliated agencies seize property in the interest of the public good, given that they compensate the owners accordingly.

Authorities have traditionally applied the rule to private property in two situations: to install new public works — like schools and highways — or as a first step to revamp and replace "blighted" neighborhoods.

But New London has considered its powers more broadly, and has prepared to kick Dery and his neighbors off their property to make room not for public works, but for a conference center, hotel complex, offices and an aquarium, all to be owned privately. Seven families who own 15 homes were uninterested, and the state tried to condemn the embattled property.

The Supreme Court's 1954 Berman v. Parker decision found that cities can apply eminent domain to raze crime-ridden or decrepit areas, but city officials have only labeled Fort Trumbull a "depressed" neighborhood.

Eminent domain has found its way to the land's highest court again — arguments in the New London case were heard Tuesday — and the case may prove to be one of the year's most important. While the Court sympathized with the plight of the 15 homeowners involved, it regrettably hinted that precedent may not favor them.

The gist of the city's arguments, which held up in the Connecticut Supreme Court, were this: The newly installed businesses and offices would create jobs and cash flow for an economically stagnant town, and that economic benefits certainly satisfy the public use requirement of eminent domain, particularly after swollen tax coffers are spent in the public's interest.

Justice Sandra Day O'Connor asked Wesley Horton, the lawyer representing the city, "So if you took away a Motel 6 and replaced it with a Ritz Carlton. More taxes. That's OK?"

Horton agreed, and Justice Antonin Scalia asked more generally, "So if B pays more than A, that's acceptable?"

Horton assented again. To dispute his argument is more than to reject a slippery slope: It's to protest a fundamental shift in the country's interpretation of property rights. If cities need only to contend that taking and selling land to private developers would produce some economic benefits felt by the public — as there would almost always be — there's only the intervening money (and the risk of residual unpopularity in later elections) to prevent cities from forcefully redistributing land as it sees fit. Individual property rights, particularly in low-income neighborhoods, are left secondary to a dubious and nebulous concept of public good.

Scalia voiced the best summary of the problem: "What this lady (one of the homeowners) wants is not more money. There's no 'public use.' You're just giving one individual's private property to another private individual."

The case has drawn attention outside Connecticut, too: The city of Riviera Beach, Fla., is likewise planning a $1 billion redevelopment project, but would first need to condemn 1,700 homes and apartments. While the city insists it would only apply the powers of eminent domain as a last resort, it is worrisome that it would apply them at all to livable neighborhoods against inhabitants' will.

Eminent domain is one of the most important tools of land (re)development, particularly in cities, but as such a potent tool — and as a potential threat to the spirit of property rights — city governments ought to be more careful than New London when applying it.

Oregon Daily Emerald: www.dailyemerald.com

Libertarian speaker decries government abuse of eminent domain: Athens (OH) news, 2/24/05

By Clay Flaherty

The head of Ohio's Libertarian Party warned a small group of Ohio University students Monday about the government's excessive use of eminent domain to take over private properties.

"Ohio is known for the worst eminent domain abuses in the country," Robert Butler, executive director of the Libertarian Party of Ohio, declared during his talk in Bentley Hall. "Most people don't realize the government can take away their home until it's too late."

Eminent domain is a legal process that allows the government to take privately owned land for public use, or for private uses deemed in behalf of the public welfare. It has been used, for example, to condemn blighted neighborhoods in the way of redevelopment, or to take properties in the way of highways or utility lines.

The U.S. Supreme Court earlier this week heard arguments in an eminent-domain case involving residents of a New London, Conn., working-class neighborhood who are trying to keep their homes, according to an article Wednesday in The New York Times. The city wants the land for an economic development project.

Butler acknowledged Monday evening that the government may have legitimate reasons to exercise eminent domain, such as the construction of highways and utility lines. However, he also cited incidents where the "public good" is not being served with eminent domain.

"Where we start to disagree (with the use of eminent domain) is when a private developer starts to profit from your land," he said.

Butler cited the cities of Norwood and Lakewood, Ohio, as examples of recent eminent-domain abuse. Butler said that the government, in return for increased tax revenue, takes away land from citizens and then hands it over to private developers, under the guise of "improving it for the public good."

Butler said that the government's first step in exercising eminent domain is having property condemned or declared "blighted." Property that does not meet certain criteria laid down by local government can receive this designation. The government is then allowed to seize the land in order to "improve" it, he said.

"The way the government improves the neighborhood is by taking your house away and giving it to someone else," Butler said.

He said homes in Lakewood were declared blighted for having only one bathroom or having an unpaved driveway. "Its scary to think about," Butler said.

Dan Corbett, president of the Ohio University Libertarians, said he agreed with Butler's analysis of eminent-domain abuses. "Eminent domain had its place, but when you use it for private development, it seems like a really thin argument," he said.

Corbett argued that there are "no incentives for (private corporations) to use the land responsibly" once they have been given a "free tab by the government."

The fight against eminent-domain abuses, Corbett continued, has elements of class struggle. "It's poor people that are going to lose their homes," he said. "There's definitely class components in the argument."

During his speech, Butler talked about organizations that help fight eminent-domain abuse, including the Institute of Justice, a civil-liberties law firm that has fought eminent domain abuses across the country. "They protect people from eminent-domain abuse — that is their specific goal," Butler said.

Founded in 1991, the institute seeks to "advance a rule of law under which individuals can control their own destinies as free and responsible members of society," according to group's Web site.

The Institute for Justice played a vital role in helping to fight eminent-domain abuses in Lakewood and Norwood. On Feb. 11, 2005, the institute filed an appeal with the Ohio Supreme Court to protect homes in the city of Norwood, which were seized with the use of eminent domain, and given to a private developer in order to expand his nearby mall.

Butler also talked about the Castle Coalition, an organization that allows activists against eminent-domain abuse to "take matters into their own hands." According to its Web site, the Castle Coalition serves as an organizing force that allows activists "to network with each other and give support, ideas and advice."

Butler also touched on the difficulties facing third-party initiatives in Ohio. According to Butler, it's nearly impossible to gain recognition as a minor political party in Ohio. "Its easier to be recognized as a political party in Iraq than in Ohio," he said.

He added that Ohio is out of touch with its neighboring states in terms of political awareness. According to Butler, Indiana has had automatic ballot recognition for Libertarian candidates for 10 years, and that other states, including Michigan, also have recognized the party's political validity.

However, Butler expressed optimism concerning future efforts by the Libertarian Party of Ohio, especially in Athens. "The Libertarian presence at Ohio University has grown significantly in the past few years," he said in his press release. "I'm glad to have this opportunity to speak, and we hope this will lead to the official formation of an Athens County Libertarian Party."

Athens News: www.athensnews.com

MTOTSA, supporters rally to stop eminent domain: (Central NJ) Atlanticville, 2/24/05

Out of town marcher: ‘You never know when it could happen to you’

By Christine Varno

It was just 35 degrees on Sunday afternoon, but the chill in the air didn’t stop a crowd of nearly 250 people from marching along Ocean Boulevard to rally against the taking of private property by eminent domain.

Long Branch was among 30 cities nationwide where citizens gathered this week to hold rallies and vigils in support of the plaintiffs in Kelo v. New London (Conn.), a case involving eminent domain that began arguments before the U.S. Supreme Court on Tuesday.

“I just feel I had to show my support,” Dyann Scacciaferro, Monmouth Beach, said. “This is going on all over, and you never know when it could happen to you.”

Scacciaferro was one among many supporters who came from Long Branch and many surrounding communities to “walk the walk” with residents living in the city’s Beachfront North Phase II redevelopment zone, known as MTOTSA (Marine and Ocean terraces and Seaview Avenue).

Residents and supporters walked for two hours along Ocean Boulevard, many wearing shirts and waving signs that read “End Eminent Domain” and “Don’t Take Our Homes.”

The walkers started out on Seaview Avenue and proceeded to Broadway, then crossed back to the east side of Ocean Boulevard, walking to the Long Branch border at Atlantic Avenue before returning to Seaview Avenue.

“I have been living here for five years,” Tim Ryan, Ocean Terrace, said as he walked. Ryan wore a sweatshirt that bore the admonition, Shame on Long Branch. “I am a renter,” he said. “I am here to support my neighbors.”

Homes in the MTOTSA neighborhood are slated for eminent domain to be replaced with upscale condominiums and townhomes built by developers Matzel & Mumford, a division of K. Hovnanian, Middletown.

Susette Kelo is a homeowner along the New London waterfront where the New London Development Corporation, a private development corporation, plans to take Kelo’s property and the other 15 properties in the neighborhood. The area is slated for redevelopment with condominiums and a hotel.

Plaintiff Kelo is being represented by the Institute for Justice (IJ), a non-profit law firm based out of Washington, D.C., that specializes in the protection of private property when eminent domain is not used for public use.

The two cases are parallel, according to Scott Bullock from IJ, who will be arguing the Kelo case.

Long Branch was the third stop Sunday in a series of rallies held in towns in New Jersey where residents are being faced with eminent domain.

The first rally started in Neptune Township at town hall on Neptune Boulevard at 11 a.m. At 1 p.m. people gathered in Asbury Park at the municipal building on Main Street. Several traveled to Long Branch to participate in the walk that began at 3 p.m.

Asbury Park Councilman John Hamilton, who took part in all three rallies, spoke briefly at the end of the Long Branch walk, stirring the crowd with his remarks.

“Injustice anywhere is injustice everywhere” he told the large crowd assembled on Seaview Avenue. He said the turnout surpassed that in both Asbury Park and Neptune.

“Is it right when elected representatives make decisions that negatively impact the lives and property of the people they swore to represent?” he asked those assembled. “Is it fitting when working-class people become victims of greedy developers? Is it fair that less than 5 percent of all people subjected to eminent domain will be allowed to remain in the areas where they resided?”

A resident from Atlantic Avenue, which is not in the city’s redevelopment zone, said she was participating in the rally in Long Branch because she was fearful that she could be next.

“It is madness and a disgrace,” Sheran Buffaloe said. “I am concerned.”

“These are our homes,” Bill Giordano, MTOTSA, said. “Where is the morality? Where is the justice? Who has the right to decide when your American Dream is over?”

“It stops here. It stops today.”

Atlanticville: http://atlanticville.gmnews.com

Eminent Domain Core Of Democratic Ideology: New London (CT) Day, 2/24/05

Letter to the Editor

By Frederick Charles Shakir

The Fort Trumbull eminent domain issue before the Supreme Court represents the ultimate philosophical consequence of the modern philosophy of the Democratic Party and its socialist ideology.

The wealth redistribution ideology that is the majority ideology in New London and elsewhere says that income and wealth are subject to confiscation for the greater good of society. The eminent domain issue is simply a slight calibration of that same dominant political ideology present in New London and Connecticut.

It is a very small jump to go from income redistribution to asset redistribution. Citizens of this state lost long ago the ability to control wealth redistribution and government size with the enactment of the income tax and binding arbitration. The confiscation of real property is quite simply the next logical step in this ideological march.

The Day: www.theday.com

B'ville to use Eminent Domain: Bartlesville (OK) Examiner-Enterprise, 2/24/05

By Kelli Williams

The Bartlesville City Council voted earlier this week to exercise the city's powers of eminent domain to acquire land needed for the Silver Lake Road extension project.

Following an executive session on Tuesday, which was closed to the public in accordance with Oklahoma law, the council voted 5-0 to proceed with eminent domain to acquire property located near Adams Boulevard and Silver Lake Road.

Eminent domain allows government entities to acquire property needed to facilitate public projects for "fair market value" without the property owner's consent.

The property, which consists of about 37.5 acres, according to City Attorney Jerry Maddux, is owned by the Morrison Family Trust. The city has been in negotiations for the Morrison property as well as for 2.5 acres owned by a separate property owner for several months.

The council agreed last week to purchase the 2.5 acres from the Donaldson family for $10,900. However, a price for the Morrison property could not be negotiated, prompting the council to consider eminent domain, officials say.

When contacted Wednesday, representatives for the Morrison Family Trust said they were not aware that the city needed the entire 37.5 acre tract of land to extend Silver Lake Road.

"The only need that I was aware of was that they needed 2.5 acres for the road project," said Jim Swezey, a commercial real estate broker who represents the Morrison family in the matter. "And the Morrisons had not heard it either."

Swezey indicated the city may be pursuing the entire tract to use for the Pathfinder Recreation District, a multi-million dollar plan that officials say would significantly enhance Bartlesville's park system. The Pathfinder Recreational District is still in the planning stages and may be considered by voters this fall.

"They really just need 2.5 acres for the road project," Swezey said. "They want the whole thing for the park plan."

The Pathfinder Recreation District, if ultimately approved by voters, would include improvements to the M.J. Lee Lake area, located on Adams Road. In a separate project, the city has obtained a grant to convert the lake into a fishing lake.

City officials say that while only 1.76 acres is needed for the road itself, more land is needed to construct a borrow pit for the road extension project, from which dirt will be "borrowed" to elevate the extended road due to the property's floodplain location.

"If there were no Pathfinder Recreation District plan, we would still need the land for the borrow pit," Ward 2 representative Julie Daniels said Wednesday. "But because of the park plan and our hopes for its adoption by the voters, we're going to borrow the dirt in such a way that we're left with a usable piece of land in the floodplain."

Daniels said to accomplish this, the borrow pit must be dug shallowly, requiring more property than if it were dug more deeply.

Additionally, the borrow pit must be located within the floodplain, according to City Engineer Terry Lauritsen.

"The borrow pit is required by our floodplain laws," Lauritsen said. "You can't bring additional dirt into the floodplain."

He said that by using the south side of the site location, the city will reduce the cost of the project.

"With it (the borrow pit) close to the road (Adams Boulevard), the city will reduce hauling costs to the contractor and in turn reduce the construction cost of the road extension project," he said.

It is expected that Maddux will file the court procedure within the next week, and that the process will take about five weeks to complete.

The court will appoint three appraisers to appraise the property, after which the court will determine a "fair market value" price for the land, Maddux said. The city may then pay the cost and take possession of the property, although either side may then request a trial to determine a final amount, he said.

Bartlesville Examiner-Enterprise: www.examiner-enterprise.com

Eminent domain plan to be revised in National City: San Diego (CA) Union-Tribune, 2/23/05

By Tanya Sierra

A key piece of the [National City CA] downtown revitalization plan was delayed again last night when officials voted to revise the eminent domain expansion proposal.

City officials have been trying for months to double the territory they are able to take over for redevelopment, but each time they are ready to move on the issue, resident concerns stall a vote.

Citizens and council members were worried that eminent domain wouldn't expire for 12 years, that the expansion area wasn't specific enough and that the proposal failed to clearly state that homes would not be condemned.

Community Development Director Ben Martinez will revise the proposal next month. The next vote is scheduled for March 22.

Although cities have used eminent domain for different purposes, in National City it allows city officials to take over any private property that is abandoned or vacant, and property in the redevelopment area zoned for commercial or industrial use.

It has been a contentious topic with residents because most are suspicious of the process. Even though officials have said during public meetings that expanding their authority does not include residential property, written documents about the subject do not say it clearly enough.

Ted Godshalk, a National City resident, asked that the new resolution state high in the document that residences would not be included.

Other speakers wondered why the authority had to last so long.

Councilman Luis Natividad said he was conflicted about the expansion.

"It's difficult for me to vote against an item that is seen as a tool for progress," he said. "I will only support it if it pertains to a specific area to be developed – not a blanket granting of eminent domain on the whole city."

The proposal was to expand eminent domain territory from National City Boulevard and the Harbor District to include Highland Avenue, the city's west side, East Plaza Boulevard, parts of the Eighth Street corridor and parts of 30th Street and Sweetwater Road.

But Councilman Ron Morrison said more specific project areas should be given, and asked whether they could decrease the amount of time they would have power.

"I have a problem with us just throwing out 12 years," he said. "Let's take a look at the time period actually needed."

State law allows eminent domain power to last 12 years, but cities could shorten the time.

San Diego Union-Tribune: www.signonsandiego.com

Riviera Beach may feel ripple effect of Connecticut eminent domain case: Palm Beach (FL) Post, 2/22/05

By Tanya Wragg

Bonnie Larson's father bought their house on West 27th Street [in Riviera beach FL] 65 years ago because he wanted to be close to the ocean.

A restorative artist who worked on cathedrals for a living, he built the fireplace in his home from brick, the closets and shelves from cypress wood and painted an Everglades scene on the dining room walls.

But now, the home Larson holds dear lies within the city's redevelopment boundaries and she is afraid the city will seize it one day using eminent domain.

Larson and about 40 others gathered at Bicentennial Park on Monday, Presidents' Day, to rally and raise awareness of the city's plans for eminent domain.

Today, a group of Connecticut homeowners who may lose their homes to a waterfront hotel and office space will go before the U.S. Supreme Court in Kelo vs. City of New London.

"If the Supreme Court says it's OK in one way or another to take private property, sell to other private people, whether it's a developer or a hotel or whatever, then really no one in this entire country will be safe because no one's home can bring in as much money as a luxury condo," said rally organizer Martha Babson, who lives in the redevelopment area.

Political candidates participating in the rally included Shelby Lowe, who is running for a city council seat in District 5, Vanessa 'Van' Lee, running for District 1, and Bishop Thomas Masters, running for mayor.

While the city is still months, possibly years, away from large-scale redevelopment, it still has the authority to seize property designated as blight. City officials have said they would use eminent domain only as a last resort. Riviera's billion-dollar redevelopment plan includes the condemnation of 1,700 homes and apartments.

People in 13 other states, including Arizona, Illinois and New York, who are or could be affected by eminent domain also hosted rallies Monday.

Peter Colt, president of the Broadway to Silver Beach Neighborhood Association in Daytona Beach helped organize a rally on the boardwalk in Daytona, which has five community redevelopment agencies and 2,262 acres in its redevelopment area.

He said someone donated a replica of the Statue of Liberty to put on display and a poster of Elvis Presley holding a machine gun that read, "Elvis won't be leaving the building."

They served about 700 apple pies, Colt said, because "property rights are as American as apple pie."

Palm Beach Post: www.palmbeachpost.com

Rally charge — 'Eminent domain abuse': The Salt Lake (UT) Tribune, 2/23/05

Anti-Wal-Mart protest: Ogden residents also decry state redevelopment laws

By Kristen Moulton

Residents of a tucked-away downtown neighborhood and other Ogden residents angry at City Hall rallied Monday to protest a plan to bulldoze homes and businesses for a new Wal-Mart superstore.

At the peak of the rally, more than 40 carried signs showing a slash mark through the words "eminent domain abuse" and calling for reform of redevelopment laws. Passers-by honked and flashed protesters thumbs-up signs.

"Something is wrong with this picture," said protester Bill Glassman, an Ogden real estate broker and investor. "Do not take homes and viable businesses away and give [the land] to a big company!"

The Ogden Wal-Mart project has become a symbol for those who believe cities are taking their right to use eminent domain too far when it is used for economic development projects.

Monday's rally was timed to call attention to a Connecticut case before the U.S. Supreme Court today, Kelo vs. New London.

In that case, a city condemned a waterfront neighborhood so a hotel, office building and upscale homes could be built.

In Ogden, Mayor Matthew Godfrey and the City Council want to replace an older, blighted neighborhood with a Wal-Mart, which they contend will bring jobs and sales-tax revenue to the city.

The city is assembling the land, 21 acres north of Union Station and the new transit center on Wall Avenue, for the giant retailer. There are 34 homes and eight businesses in the project area.

Past court cases have upheld cities' right to use eminent domain for economic development when a neighborhood is blighted. In the Connecticut case, the neighborhood was healthy.

Neighborhood residents Christina and Milton Rodriguez were among those carrying signs Monday. They expect to land in court soon because they refused the city's offer for their home and adjacent properties where Christina has lived all her life.

Milton has a fencing business next door, and Christina is able to walk to work at the IRS downtown. Neither wants to move.

Senorina Fernandez, who was raised in the neighborhood and now lives there with her own family, says she, too, expects the city to condemn her home. She has refused offers so far.

"They tell us we'll have better homes, better neighborhoods. They don't know what it's about down here," said Fernandez, toting a sign protesting abuse of eminent domain. "We're here because we want to be. We just want them to go away."

The rally also drew a number of other area residents active in the campaign to reform Utah redevelopment laws.

Steve Huntsman, a North Ogden City Council member who opposed his own council's decision to build a new swimming pool through a redevelopment project, was at Monday's rally.

Huntsman was recently criticized by Ogden leaders for sending a letter to Wal-Mart threatening to expose, via his family's community newspaper, the company's participation in what he considers eminent domain abuse.

"It's wrong and the sad part is it's legal in our state right now," Huntsman said.

Salt Lake Tribune: www.sltrib.com

Eminent domain argued: San Bernardino (CA) Sun, 2/23/05

Supreme Court looks at case of neighborhood

By Nikki Cobb

The Supreme Court struggled Tuesday to balance the rights of property owners against the goals of city officials who want to sweep away old neighborhoods and turn the land over to private developers.

And the outcome could hold ramifications for several San Bernardino County cities and their residents.

Citizens who are suing the town of New London, Conn., say their working-class neighborhood is slated for destruction primarily to build an office complex that will benefit a pharmaceutical company that built its research and development headquarters nearby.

An attorney representing the city, Wesley Horton, told the court the revitalization project will create new jobs and trigger much-needed economic growth. He said increased tax revenue is enough of a legal basis for the city to exercise the power of eminent domain and compel the residents to sell their homes.

If a city wanted to seize property to turn a "Motel 6 into a Ritz-Carlton, that would be OK?' Justice Sandra Day O'Connor asked.

"Yes, your honor, it would be,' Horton replied.

The justices expressed sympathy for the longtime residents. At the same time, they questioned whether they have the authority to stop the town's plans.

The outcome could have significant implications.

In San Bernardino County, cities have wrestled with use of eminent domain.

Rialto might use it to clean up a neighborhood an "eyesore,' in the words of one councilman. Dilapidated apartment buildings would be replaced by new ones, built by a nonprofit agency.

Loma Linda has had pitched battles with residents, particularly in the older northern and central neighborhoods.

Loma Linda officials say they're eliminating blight and want to build low-income housing that will be more aesthetically pleasing. Residents say city officials want more expensive homes and the property tax they bring, or retail shops.

Eminent domain has also raised questions in Redlands, where 200 residents packed a December meeting on the subject.

In Muscoy, land might be taken for a middle school. In Highland, it's highway on-off ramps.

San Bernardino officials are contemplating moving residents from 264 apartments, 173 houses and several businesses and churches for the city's Lakes and Streams Project.

Also in San Bernardino, a reversal of the trend: The school district might take a shopping center through eminent domain to build a new school.

In this case, officials with the San Bernardino City Unified School District consider the move to be for the public good because it would relieve crowding at Lincoln Elementary School, where 1,200 students are crammed into a school built for 600.

In recent years, the city of San Bernardino evicted homeowners and a motel owner to build a new shopping center in its Hub area, between Tippecanoe and Laurelwood.

Across the nation Tuesday, rallies supported the rights of homeowners against the threat of eminent domain.

The Institute for Justice, a nonprofit Libertarian law firm, is representing residents in the case being considered by the U.S. Supreme Court.

"If the Supreme Court decides that the mere possibility of increased tax revenue is a public use under the Constitution, literally no one's home is safe because anyone's small business can make more money as a big box store and anyone's home can make more money as a luxury condominium,' said Steven Anderson, coordinator of the Castle Coalition, the Institute for Justice's nationwide grass-roots project.

In recent years, there have been over 10,000 instances of private property being threatened with condemnation or actually condemned by government for private use, according to the Institute for Justice. The group represents the New London residents who filed the case.

Scott Bullock, representing the neighborhood residents, argued that government cannot take private property from one owner and provide it to another just because the new commercial project will boost finances. The city plans to give the developers a 99-year lease for a dollar a year.

"More than tax revenue was at stake,' Justice Ruth Bader Ginsburg replied. "The town had gone down and down' economically.

O'Connor questioned whether the homeowners were asking the court to "second-guess' the governmental power of eminent domain.

The legal arguments concern the Fifth Amendment prohibition against taking private property for public use without just compensation.

The city says it is willing to pay a fair price.

"You are paying for it, but you are taking it from somebody who doesn't want to sell,' Justice Antonin Scalia told Horton, the lawyer representing New London.

Several justices focused on the residents' argument that the court should impose standards for governments to meet when they want to sweep away neighborhoods for economic revitalization.

"A lot of times governments have no clue what they're going to do with the property,' Dana Berliner, co-counsel for the neighborhood residents, said after the court arguments ended.

New London, a town of less than 26,000, once was a center of the whaling industry and later became a manufacturing hub. The revitalization project is a few miles downriver from the U.S. Navy's submarine base in Groton.

The starting point for Tuesday's arguments was a Supreme Court ruling five decades ago that allowed governments to take private property for urban renewal.

The neighborhood's lawyer, Bullock, seized on that case, contending there is a difference between the urban blight of 1954 and the current circumstance of an economically depressed town.

Justice Anthony Kennedy questioned Bullock's position, with the justice saying that economically depressed areas can quickly become blighted areas.

Ginsburg also wondered whether the urban renewal case offers much hope for the neighborhood. She pointed out that the issue in that case involved a department store that was not contributing at all to the blight in the area. The court nonetheless cleared the way for local government to take the department store's property for the renewal project.

Chief Justice William Rehnquist, who is battling thyroid cancer, did not attend the arguments and will be absent for the next two weeks. He has not attended arguments since October. Justice John Paul Stevens was out of town and missed the day's arguments.

The case is Susette Kelo v. City of New London and New London Development Corp., 04-108.

San Bernardino Sun: www.sbsun.com

Eminent Domain's Future Unsure: Columbia (University) Spectator, 2/23/05

The Supreme Court Hears Arguments on CT Case With Implications for Manhattanville

By Erin Durkin

As home owners from New London, CT packed the courtroom here to await a decision on the fate of their dwellings, Manhattanville residents wondered whether the resolution might change the ground rules in the fight against the expansion.

The controversy over eminent domain reached the U.S. Supreme Court yesterday, as the justices listened to arguments in Kelo v. New London, a case whose outcome will define the limits of the government’s power to buy property against the owner’s will for “public use.” The court’s decision may affect how Columbia obtains properties for its expansion.

Historically, eminent domain has been used to acquire land for public projects. More recently, governments have used eminent domain to promote economic development, condemning property and turning it over to private developers to create jobs and tax revenue in economically troubled areas.

In Kelo, a group of New London homeowners challenged the city’s use of eminent domain to forcibly buy their homes for a major development project. The owners argued that the Supreme Court should rule broadly that economic development does not constitute public use under the 5th Amendment.

“Every city has problems and wants more tax revenues,” said Scott Bullock, the homeowners’ lawyer. “Without any limits on the government’s eminent domain power, every home, church, or corner store” would be at risk.

Barring a broad ruling, they asked the Court to overturn the condemnations of their homes on the grounds that in order for eminent domain to be used, economic benefit must be “reasonably foreseeable.” Municipalities must show that proposed economic benefits will actually come about.

The city argued that the court does not have the right to assess whether development is necessary.

“The principle purpose of the takings clause is to provide for just compensation,” said Wesley Horton, attorney for the city. “There is no principled place for a court to make what is essentially a value judgment” about the public worth of the project. He stressed that the proposed project would create jobs in an economically troubled area.

The courts decision could have major implications for the use of eminent domain in Columbia’s expansion.

Attorney Norman Siegel, representative of West Harlem Business Group, a group of Manhattanville property owners unwilling to sell to Columbia and who fear eminent domain will be invoked on their property, filed an amicus curiae brief on behalf of the homeowners. He wrote in the brief that his clients are in “a circumstance similar to the circumstances of petitioners.” He has called for New York officials to suspend use of eminent domain until the Court rules in Kelo.

Columbia maintains that as a private institution, it does not have the power to use eminent domain. “Columbia will continue to negotiate the purchase of properties needed...and manage the overall development process in a way that addresses the needs of individual owners and tenants, meets the University’s objectives and brings economic prosperity to Northern Manhattan and the city as a whole by creating construction and permanent jobs,” said Liz Golden, Columbia’s director of operations, planning, and special projects, in an e-mail. She said it would be speculative to comment on the outcome of the case.

The seven justices present at yesterday’s arguments raised questions about arguments in both sides in the case.

Justice Ruth Bader Ginsburg responded to the argument that cities only use eminent domain for tax revenues, saying that “more than tax revenue was at stake,” since New London “had gone down and down” economically.

Justice Antonin Scalia, who expressed sympathy for the homeowners at several points during the arguments, led the Court in questioning Horton. The city “just wants to take property from people who pay less taxes and give it to people who pay more taxes,” he said.

Asked if this was a fair characterization of his argument, Horton jokingly replied, “If it’s a significant amount” of additional revenue. Justice Sandra Day O’Connor suggested that by that standard, the government could condemn a Motel 6 to make way for a Ritz Carleton.

Participants addressed assembled media in a press conference after the arguments. “I was very encouraged by today’s arguments,” said Susette Kelo, a plaintiff in the case. “I feel [the justices] are sympathetic to the homeowners.”

In reference to individuals losing their homes, Horton said, “Obviously it’s very sad when things like that happen,” but stressed that “to have to deal with a bunch of holdouts makes it more difficult to attract developers.”

Donald Borut, executive director of the National League of Cities, which filed an amicus curiae on behalf of the New London government, agreed. He said in an interview that, should the Court overturn the condemnations, “It would mean that a major tool that cities have used for years to create economic opportunity for citizens would be taken away.”

“The dilemma is you have people who own property ... who don’t want to leave,” Borut said. “You’ve also got 1,500 people who lost their jobs who [want] to work.”

Siegel said he was “cautiously optimistic” after viewing the arguments. He hopes the Court will rule broadly that economic development does not constitute a form of public use. Under such a ruling, he said, “the argument that Columbia has been making up to today — more jobs, more taxes — would be unacceptable for the employment of eminent domain.”

A more narrow ruling overturning the condemnations based on a “reasonable foreseeability” test, Siegel said, would open the door for him to challenge Columbia to provide evidence to back up its projections on expansion-provided jobs and revenue.

Siegel said that even if the Court upholds the New London condemnations, it won’t make things worse for his clients.

Columbia law school professor Tom Merrill said that a broad ruling against the use of eminent domain would “cause some issues for Columbia.” However, he said, “I think it’s unlikely that the Court would go that far.”

“One thing that might make the case different is that Columbia...being a university, has more of a public benefit” Law School professor Warren Briffault said pointing to education and research opportunities Columbia offers.

Siegel acknowledged that “the fact that Columbia is an educational institution makes the issue a little more difficult,” but stressed that “Columbia is still a private entity.”

A decision is expected in June.

The Columbia Spectator: www.columbiaspectator.com

Eminent domain measure put off: Cherry Hill (NJ) Courier-Post, 2/23/05

By Bill Duhart

Hours before the township board of commissioners was scheduled to introduce a measure to seize two private homes by eminent domain to make way for a redevelopment project, the measure was removed from the agenda Tuesday.

After the nearly two-hour meeting, which featured sharp bickering between Commissioner Kathleen Hogan and Mayor William Park, the two continued to trade barbs about why the items were removed.

"I threatened to sue them if they didn't take those items off the agenda," said Hogan.

Park said the item was removed early Tuesday at the suggestion of township solicitor Timothy Higgins and had nothing to do with Hogan's threatened suit. The lawsuit threat does, however, illustrate the level of acrimony among the commissioners, which include Park, Hogan and James Broderick.

Park and Higgins said the measure did not have to be acted on immediately and that more time could now be taken to negotiate with two homeowners whose properties were targeted for acquisition. Park said commissioners wanted "to take another month to take another stab at this."

"I don't think anyone is comfortable doing eminent domain," Park said after the meeting. "But you have to look at the composite picture here and look at what's good for the community."

A standing-room-only crowd of about 100 people attended the meeting. Virtually everyone who spoke in the public portion of the meeting opposed the redevelopment proposal.

The plan is to transform an aging strip of Haddon Avenue, between Crystal Lake and Reeves avenues, into an upscale blend of shops, town homes and apartments. The development is centered around the former Dy-Dee diaper laudry and stretches for a few blocks in each direction.

Resistance to the plan has been spirited. A group of neighbors, township residents and local activist organized a demonstration along Haddon Avenue Monday to draw attention to the Supreme Court case, the Haddon Avenue redevelopment project and a similar project in Westville also utilizing eminent domain.

The power of municipalities to take private property for public use, even against the wishes of the owner, has gotten regional and national recognition recently. The U.S. Supreme court took up a case involving eminent domain Tuesday.

Seizing the properties here represents a significant step forward in the process to transform an aging strip of the Haddon Avenue, between Crystal Lake and Reeves avenues into an upscale, mixed-use area of shops and homes.

The Courier-Post: www.courierpostonline.com

House OKs higher price for eminent domain: Indianapolis (IN) Star, 2/23/05

Bill would make governments pay a premium to obtain property for commercial development

The Indiana House voted Tuesday to make it more costly for government to condemn private property for the sake of commercial development, as the U.S. Supreme Court heard a case that could lead to even more restrictions.

Supporters of House Bill 1063 complained that the wants of developers have trumped the rights of average citizens. They argued that eminent domain laws, which allow the government to buy property against the owners' wishes, have strayed far from their original purpose of making it possible for roads and other necessities to be built.

"We've gone from a public use to a public good," said Rep. David A. Wolkins, R-Winona Lake, the author of the bill. "That's a pretty subjective term."

Wolkins' bill would force cities, counties and other governments to pay a premium for property they condemn to make way for commercial development — such as new subdivisions, shopping centers or manufacturing plants. The bill could affect several projects in Indianapolis, including Mayor Bart Peterson's push to build a new Colts stadium south of the RCA Dome.

City and town officials from throughout Indiana rallied against the bill, which the House passed by a vote of 67 to 29. "The bill makes it more difficult and costly for cities to do economic development," said Evansville Mayor Jonathan Weinzapfel. "I'm not sure what this bill is trying to fix."

Cities already negotiate fairly with property owners, but when such talks fail, Weinzapfel said, cities need a way to improve downtrodden areas.

In Indianapolis, officials say eminent domain helped redevelop the Fall Creek Place neighborhood. City attorney Kobi Wright said the city also is using the process to claim land for the AmeriPlex business park project near the airport and will do so with property near the proposed new Colts stadium if necessary.

Wright said it is not clear whether that project would fall under the scope of the House bill. In any event, he said, eminent domain is a crucial legal tool.

Few things spark more ill will than when a city tries to claim a property that an owner doesn't want to give up. The city's Capital Improvement Board is now sparring in court with the owner of a Downtown parking lot that would be part of an IndyGo transit hub. The two sides remain far apart, representatives for the city and the lot owner said Tuesday.

The House bill forces governmental entities to pay property owners in those cases 150 percent of the property's assessed value or the average of three private appraisals. The owner would receive the higher of those two yardsticks.

The House vote came as the U.S. Supreme Court heard arguments in a case that could have sweeping ramifications for cities. In the case, New London, Conn., is attempting to replace a middle-class neighborhood with new development.

The Washington, D.C.-based Institute for Justice has championed the case. Senior attorney Dana Berliner said cities have transformed eminent domain from something used to clean up blighted areas and pave the way for roads and utilities to a process for putting the most profitable projects at desirable locations.

"The attitude is to do it anywhere, and the driving force behind that has been the private developers," Berliner said. "They should not be using the power of government to get whatever land they want."

The Indianapolis Star: www.indystar.com

How Eminent Is A City's Domain? The Hartford (CT) Courant, 2/23/05

By David Lightman

If New London can seize people's homes so private developers can build a hotel and convention center, what will cities do next? several Supreme Court justices asked during arguments Tuesday.

Can a city decide to get rid of the Motel 6 and put up a Ritz-Carlton, asked Justice Sandra Day O'Connor, because the luxury hotel would produce more taxes?

"That would be OK?" she asked.

"Are we saying you can take from A and give to B if B pays more taxes?" asked Justice Antonin Scalia.

Susette Kelo, sitting in the back of the cavernous court chamber, was encouraged by such questions. Kelo is the lead homeowner in a landmark case that pits a group of New London homeowners against a city that sees their property as crucial to its development plans.

Arguing on behalf of New London, attorney Wesley Horton told O'Connor, "Yes, your honor, it would be" appropriate to replace a lower-cost motel with a plush hotel.

A city, in this example, would be exercising its time-honored right of eminent domain, Horton said. The homeowners countered that what was really at stake for New London was whether developers and the city would make more money.

Seven justices heard the case. Chief Justice William H. Rehnquist, who has thyroid cancer, has been absent from the bench since October, and Justice John Paul Stevens did not attend because his plane was delayed.

A ruling is expected in June, and despite Kelo's guarded optimism, it was hard to discern which way the justices were leaning after a lively hour during which six of the seven justices peppered the attorneys with questions. Only Justice Clarence Thomas remained silent.

Kelo left the session pleased, but many other homeowners were less sure. They seemed awed that what began as a dispute with their city had wound up in the nation's highest court.

What unfolded there Tuesday was a drama on two levels.

One involves the plight of the homeowners, who don't want to leave their middle class Fort Trumbull neighborhood.

Many arrived at the court building an hour and a half before the 10 a.m. hearing Tuesday. Some stood smoking cigarettes outside in the cold and worrying whether ordinary folks like them could get a fair hearing.

Ronna Stuller, a New Haven friend and supporter of Kelo and other homeowners, drove 6½ hours to Washington; Amy Hallquist, another friend, took a train. Leading them all was Kelo, a nurse dressed in apricot - the same color as her New London home.

"I'd been to the state Supreme Court, and this was sort of like that," Kelo said quietly after the hearing. `'But it was more formal. There was more security."

The case has the potential to be precedent-setting, shaping eminent domain policy for years to come. It also is the most prominent Connecticut case the court has considered in 40 years.

The Fifth Amendment to the U.S. Constitution bars the taking of private property for public use without compensation; courts have allowed it provided owners are rightfully compensated. But controversy has grown over whether local governments have reached too far, taking property for glitzy projects to rid a neighborhood of lower-income people.

The conflict actually reaches back to the Magna Carta, said Douglas W. Kmiec, professor of constitutional law at Pepperdine University.

Kmiec, who has studied the New London case, noted that since the 13th century, governments have recognized that "eminent domain and securing private property must coexist. Neither can be absolute."

But, Kmiec added, "courts have engaged in a balancing act" for years.

Scott G. Bullock, attorney for the Institute for Justice, a civil liberties firm, argued the case for Kelo and her allies. He agreed that government has the authority to condemn blighted areas and to take other property to meet an obvious public need.

But, Bullock said, "there have to be limits." To simply take property to build the tax base by improving private profits is not necessarily a proper use of eminent domain.

Some justices seemed uncomfortable with that notion. "You want me to make a distinction between blight and economic purpose?" asked Justice Anthony M. Kennedy.

"Do you really want the courts in the business of weighing evidence to see if a hospital will be successful or a road will be successful?" asked O'Connor. Bullock said there could be reasonable standards for taking property. In a 1992 railroad case, Kennedy said it was crucial that "the condemning authorities [be] rational in their positions that some public purpose is served."

The justices were equally tough on Horton, bringing up the question of whether it was proper for a government to condemn a lower-price property so something more glamorous - and tax-producing - could replace it.

Horton argued that "there is a democratic process" that would subject such a change to careful scrutiny, including hearings and regulatory reviews. Cities could not simply make such changes on a whim.

Nonetheless, Scalia seemed concerned that New London wanted private property for a private developer's use in a case where the homeowners did not want to leave. Kelo, he said, "does not want to move. You're just giving it to some private individual who's going to pay more taxes."

The questioning left many of the New London spectators confused as to what the justices would decide. A decision is expected before the court ends its current term, probably in June.

"If nothing else," said Hallquist, "it was interesting to see both sides get their butts chewed a little. I don't know where this decision is going. I'm just going to leave it up to God."

The Hartford Courant: www.courant.com


Public use or abuse of power?: The Dallas (TX) Morning News , 2/19/05

Landowner, council at odds over use of eminent domain

By Wendy Hundley

For more than a dozen years, Xavier Hernandez has sold icy treats from a small shop on the edge of the old Canyon Creek Shopping Center.

Last week, the Richardson City Council approved a measure that could force him to sell his property for the II Creeks project, an upscale retail and residential development going up on adjacent land.

City officials said the eminent domain action benefits Richardson by boosting the economy and revitalizing a dying retail center.

"Economic development is a public purpose," City Manager Bill Keffler said.

But Mr. Hernandez sees it differently. "It's unbelievable that they can force me to sell so somebody else can make a profit," he said. "It's un-American."

On Tuesday, the U.S. Supreme Court will hear arguments to determine whether seizing property for a private developer is unconstitutional.

The Kelo vs. New London case involves homeowner Susette Kelo in New London, Conn. The city sought to seize all the land in Ms. Kelo's neighborhood so a private developer could build a hotel, homes and offices to complement a new nearby Pfizer Corp. plant.

If this use of eminent domain is upheld by the Supreme Court, "no one's home or small business is safe in this country," said Steven Anderson, coordinator for the Castle Coalition, a national organization fighting what it believes is the abuse of such powers.

He considers Kelo vs. New London one of the foremost property rights cases in 50 years.

Eminent domain has traditionally been used to acquire private property for parks, roads and other projects that benefit the public.

That began to change in 1954, when the Supreme Court ruled in Berman vs. Parker that private property could be taken to revitalize blighted urban areas.

"Since that case, the floodgates have opened," Mr. Anderson said. "The government is trying to take land that truly isn't blighted."

The Castle Coalition is supporting Arlington property owners who fear their land will be seized for the new Dallas Cowboys stadium.

In Richardson, City Council members said last week that they struggled with the decision to authorize condemnation of the Hernandez property.

"But they were trying to look at the long-term public good," said Michael Wanchick, an assistant city manager. "We're not unsympathetic to Mr. Hernandez."

Nevertheless, the city attorney believes Richardson is on firm legal ground, Mr. Wanchick said. "Clearly we have a right to do this under state and federal laws."

There's little doubt that the new II Creeks project will revitalize the old Canyon Creek Shopping Center. In the 1960s and '70s, it was a thriving retail site with a theater, restaurants, a bank and doctors' offices.

Over the years, the development at the intersection of Lookout Drive and Custer Parkway was eclipsed as businesses moved into high-traffic malls or along busy thoroughfares.

The final blow came three years ago, when a Tom Thumb store, the anchor tenant, closed.

The city tried unsuccessfully to find interested developers until last year, when three homeowners in the nearby Canyon Creek neighborhood decided take a chance on the old retail center.

Their vision for the $40 million II Creeks project will replace the vacant storefronts and empty parking lot with upscale retail stores and town homes selling for as much as $575,000.

Richardson officials say II Creeks is a model redevelopment that will create jobs, pump up the city's sagging tax base and generate new sales tax revenue.

It will also provide upscale housing for employees at the new $3 billion Texas Instruments semiconductor plant and the $85 million engineering and research facility at the University of Texas at Dallas.

"We wanted to do everything we could to support redevelopment," Mr. Wanchick said. "There is a lot of support for [II Creeks] in the Canyon Creek neighborhood."

He tried to serve as an intermediary between II Creeks and the Hernandez family but was unable to negotiate a settlement.

The Hernandez property is valued at $47,158 on Collin County tax rolls. A certified appraiser hired by the city set the market value at $94,000. The family has said a potential buyer once offered $375,000, but Mr. Wanchick said the city is not aware of any such proposal today.

The owners of II Creeks offered to buy the three-tenths of an acre site for $125,000 and provide four years of free rent elsewhere in the development.

"It appears the landowner is unwilling to sell the land at a fair and reasonable price," Mr. Keffler said at last week's City Council meeting, where the eminent domain resolution was approved 6-to-1.

City officials said they hope that the action prompts the property owners to reach a compromise and that condemnation wouldn't be necessary. Mr. Wanchick said the city is looking for other Richardson locations for the snow cone shop.

Mr. Hernandez, whose family owns six seasonal TC Shaved Ice locations in the Dallas area, said the Custer Road site is profitable, with an established customer base.

He said the $125,000 offer wouldn't allow him to buy another piece of land, construct a new stand and rebuild the business.

"If you're going to force me out, at least compensate me for what it's worth," he said.

"It doesn't make sense that I have the property and they're setting the price."

Dallas Morning News: www.dallasnews.com

Condemn-Nation: Slate, 2/22/05

This land was your land, but now it's my land.

By Dahlia Lithwick

I've witnessed some weird moments at oral arguments over the years, but I'm thinking absolutely nothing could compare with the sight I beheld today: In the midst of argument in Kelo v. New London — a critically important case about the government's right to condemn private land and give it to private developers — the lawyer for the city of New London, Conn., pulls out an actual prop. In response to a query from Sandra Day O'Connor as to whether there's a concrete development plan for what would replace the handful of homes being condemned, Wesley W. Horton hauls out a big poster board with the whole proposed community laid out. Condos here, marina here, yank out this crappy little Victorian house and the health club will go there, he enthuses.

My heart begins to pound. I want in on this deal. And O'Connor looks like she does, too.

With the exception of a yellow pad, I have never seen a visual aid of any sort used at oral argument. Advocates really should use them more — diagram all four prongs of the Lemon test; color-code the three levels of constitutional scrutiny. After all, these justices aren't getting any younger and with Chief Justice William H. Rehnquist out again today, and his usual replacement, John Paul Stevens, absent because of a canceled flight, we are down to just seven this morning. It's starting to look a bit like The Bachelor, Week 5.

But to start at the start: The Fifth Amendment of the U.S. Constitution allows local government to use "eminent domain" powers to condemn private property. The only requirement is that owners are given "just compensation" and that the land in question go to a "public use."

In the working-class neighborhood of Fort Trumbull, Conn., the local government has some big plans. Not a monorail, but adjacent to and complementing a brand new $300 million research facility for the pharmaceutical giant, Pfizer, there would be condos, health clubs, a luxury hotel, shops, and other assorted mega-stuff. Most of the folks in town agreed to sell, but seven families, owning 15 homes, refused. They like their crumbly Victorians. So when the state tried to condemn their property, they sought injunctions.

Traditionally, the "public use" requirement in eminent domain cases allowed the local government to condemn property to build railroads, or bridges, or highways. But in a 1954 case, Berman v. Parker, the Supreme Court found that "public use" could include condemning blighted neighborhoods to build better ones. Fort Trumbull isn't blighted, but since the Michigan Supreme Court decided its famous Poletown case in 1981 — razing hundreds of homes to build a GM plant — many jurisdictions have insisted that increased tax revenues and the prospect of new jobs was "public use" enough to justify nabbing land that subsequently became Costcos, shopping malls, and fancy office buildings. New York used eminent domain to improve Times Square and build the World Trade Center. The Connecticut Supreme Court agreed with New London that seizing homes for purposes of private economic development was permissible. The homeowners appealed.

Scott G. Bullock represents the homeowners, and his first words to the court strike terror in the heart of anyone who looks into their backyard and sees the ghostly outline of the Target housewares section looming over the trees: "Every home, church, and corner store would produce more tax revenue if it was turned into a shopping mall," he says. There can be no limit to what the state can condemn if the only requirement is that the proposed project improve the tax base.

Justice Ruth Bader Ginsburg points out that the city is depressed; what's wrong with efforts to "build it up and get more jobs?" Bullock says the condemned land in Berman was "blighted," but this land is merely depressed. O'Connor, never one to tip her hand too early at argument, asks Bullock "What standard should we use to second-guess the legislature?" Bullock insists that once condemned land is passed off to private developers, it's no longer going to "public use." Justice Anthony Kennedy interrupts to observe that "everybody knew private developers were the beneficiaries" when slums were condemned in Berman.

Bullock replies that the Berman taking was justified since it was removing blight. Kennedy retorts that in five years New London will be blighted instead of just depressed, and would eminent domain be acceptable then? Bullock says the entire public benefit of a project cannot "depend on private parties making a profit." Kennedy and David Souter both observe that this is precisely what happened when land was condemned for railroads.

O'Connor again seeks articulation of the test these homeowners are proposing, and Bullock supplies her with: "The government cannot take property just so the new owners can put it to better use." He wants the court to implement two requirements in eminent domain cases: some proof that the proposed future use is truly likely to happen, and his backup test — that there be "minimum standards" showing actual benefits to taxpayers.

Souter concedes that there could be truly bad faith condemnation of land — say, when the mayor, a Democrat, condemns Person A's land and gives it to Person B, also a Democrat. But Souter sees no evidence of bad faith in New London. They are legitimately attempting to revive a declining economy. O'Connor adds: "Do you really want the courts to be in the business of judging whether a hospital will be successful or a road well-constructed?"

Wesley Horton represents the city of New London, and even before his to-scale chart comes out, it's clear that his enthusiasm for this development knows no bounds. He's a hopper, as well as a pointer, and he tends to chuckle at his own jokes. But he makes the point that this condemnation is no different than any of the innumerable ones that were deemed constitutionally sound in the past.

Justice Antonin Scalia asks what difference it makes that New London is depressed. What if a city acknowledged that it wasn't doing badly, but just wanted to condemn land to attract new industry? He describes Horton's position as: "You can always take from A and give to B, so long as B is richer." And O'Connor offers this concrete example: What if there's a Motel 6 but the city thinks a Ritz-Carlton will generate more taxes? Is that OK?

Yes, says Horton.

"So you can always take from A and give to B if B pays more taxes?" asks Scalia.

"If they are significantly more taxes," says Horton

"But that will always happen. Unless it's a firehouse or a school," protests Kennedy.

Here is where O'Connor asks about the specific plans for the homes before the court, and Horton pulls out his Pareto-optimal town-planning schematic, and everyone on the bench briefly contemplates buying a new condo in Fort Trumbull, Conn.

Justice Stephen Breyer asks why the courts cannot just demand some "reasonableness" standard for proposed "public use" projects. Horton says that standard is too high. Breyer points out that this is a "specific constitutional provision designed to protect minorities from the actions of majorities," and maybe a higher standard is warranted.

"We're paying for it!" Horton exclaims, noting that no one is taking anything from these minorities.

"But you're taking it from someone who doesn't want to sell. She doesn't want your money," retorts Scalia.

And Kennedy muses that "it seems ironic that 100 percent of the premium for this new development goes to the developer and not the property owner" (who is entitled only to the "fair market value" of her home and not a share in the marina's future revenues). Breyer agrees that the real problem here isn't the "public use" issue but rather whether this represents just compensation.

It doesn't look like the good folks of Fort Trumbull will garner many votes today at all — save for that of Justice Scalia, who channels the many libertarian amici in this case when he repeats that you can constitutionally condemn land and give it to a private entity — a railroad or public utility. "But you can't give it to a private corporation just because it might increase taxes."

Horton replies that giving the people of New London jobs is just as important as giving them a railroad.

Horton then concludes: "I have just four words this court should consider … but I'm not going to say them because I see my red light is on" (which amounts to 15 additional words). When Bullock stands for his rebuttal, Kennedy asks whether he knows what the four words were that Horton might have used.

Bullock does not. So a new Fort Trumbull gym membership to the first Frayster who can win this case (for either side) in just four words. Let me start you off:

"But we're libertarians, stupid."

"What would Rehnquist say?"

"You can't stop progress."

"Grande or Venti, sir?"

Slate: slate.msn.com