4/24/2006

Response to inquiry from Erick & LyNae Marshall

Hello Mr. and Mrs. Marshall:

Eminent domain can be used as long as it meets minimum scrutiny, that is, as long as it has a rational relation to a legitimate government purpose. Whether there was a government purpose is a question of fact for the jury (or the judge sitting as jury).

The question is, was there a government purpose in your government's plans to rezone and "revitalize," or was there, in fact, a private purpose? That is, did government simply exchange a government purpose for a private purpose? Did it sell government purpose to a developer?

I emphasize this because, under current, law, making that factual determination is the only way to legally stop eminent domain. If the court can be shown that there was, in fact, no government purpose, then government cannot use eminent domain because the eminent domain does not bear a rational relation to a legitimate government purpose. It does not meet minimum scrutiny.

Sorry about all the legalese, but you are in the realm of lawyers and courts if you want to resist this, and you have to use their language.

What does this have to do with the Kelo case? Well, chronology is very important in deciding if there was, in fact, a government purpose. New London presented the following chronology to the U.S. Supreme Court in the Kelo case:
  1. New London decided it wanted to revitalize;
  2. New London announced its desire;
  3. Pfizer Corporation heard about it and approached New London with a plan.
  4. New London accepted Pfizer's plan.

If you read pages 97-100 in the article with the link below, you will find out that that was a lie. It came out after the Kelo decision that the following was the true chronology:
  1. Pfizer wanted land in New London in order to expand;
  2. Pfizer approached New London with its plan;
  3. New London adopted the plan;
  4. New London announced that it wanted to revitalize.

What is missing in the second series of steps? What is missing is the fact that New London decided to revitalize. In fact, New London did not make that determination. In fact, it simply adopted Pfizer's purpose. It exchanged government purpose for a private purpose. This is important: even the Justices asked about it in oral argument during hearing on the Kelo case at the Supreme Court. It was decided that the first chronology was what happened. The Court was wrong (or, in my opinion, it actually knew that the second chronology was true but wanted to find for the city and against the property owners).

Probably from the time the city manifested a wish to rezone, you have legal standing to challenge the government with respect to your property. You can probably ask for declaratory relief declaring any rezoning or "revitalization" decisions made so far, to be invalid on the basis that there is in fact no government purpose. Also ask for an injunction against the city ordering a halt to any further actions relating to rezoning or "revitalization."

Your attorney will have to get to work on discovery. Subpoena documents and get depositions which show that government officials met with private developers before the rezoning and "revitalization" announcements. It sounds like they were approached by a developer, and agreed to turn over government purpose to the developer.

By the way, who are the developer interests? You have to find out all about that. You have to be very methodical, go back very far in time, and present evidence to the Court about who talked to whom, when, and what was said. Get all the documents relating to the rezoning and "revitalization" decisions of the government, no matter how far back they go. Often developers have their eyes on a piece of property — and begin talking to government officials about it — long before the public knows anything about it.

There is currently an action going on in New Jersey in which the attorney is trying to find out exactly these things. The filed complaint is online at this site:
www.kevinbrownformayor.com


Look at page 5, paragraph 14 of the complaint. This is the sort of thing your attorney is going to have to show: that private parties decided what they wanted, then got government to agree to give them what they wanted. That is the only way you will show that there was, in fact, no government purpose. You will want the Court to give you a declaration that the rezoning and "revitalization" actions by governments do not pass minimum scrutiny and are therefore invalid. You will want a permanent injunction to stop any further government action relating to rezoning and "revitalization."

Let me know if you have any questions. Good luck!

Cordially yours,
John Ryskamp (philneo2001@yahoo.com)

Ryskamp, John Henry, "The New Constitution: The Eminent Domain Revolt and Its Consequences" (December 29, 2005). Available at SSRN: http://ssrn.com/abstract=898284 or DOI: 10.2139/ssrn.562521