Eminent Domain Watch: 01/23/05

1/28/2005

FERC seeks seizure powers — The (Fall River MA) Herald News, 1/28/05

By Daniel Fowler
The Federal Energy Regulatory Commission [FERC] earlier this week asked a Senate committee for the power of eminent domain in the siting of liquefied natural gas facilities, a move which could potentially impact the city [of Fall River MA], Mayor Edward M. Lambert Jr. said Thursday.

Lambert said an LNG expert retained by the city believes the recommended vapor exclusion zone for Hess LNG’s proposed project is not large enough because a vapor cloud could extend beyond the property where the company hopes to build its LNG facility, meaning that the power of eminent domain might be needed to go forward.

"I think it’s very curious that we raise an issue about the exclusion zones being wrong, and suddenly FERC goes to Congress to get eminent domain powers," Lambert said.

University of Arkansas professor and LNG expert Jerry Havens said he believes a vapor cloud could extend 2,800 feet off the property on North Main Street, where Hess LNG hopes to build the facility, Lambert said.

But according to Bryan Lee, FERC’s Director of Press Services, the request "was not driven by any specific proposal."

"The point that was being made is that, when it comes to hydro power projects and pipeline projects, the commission has eminent domain authority," Lee said. "The commission does not have eminent domain authority for LNG. The proposal that the commission should have the same authority for LNG as it does for hydro and pipelines was not made with a specific proposal in mind."

Eminent domain, Lee said, is a last resort, which allows FERC to take over land on or around a project site.

Land owners are reimbursed "at a fair value," Lee said.

"It’s an authority we’ve had for years," Lee said. "It’s only used after every effort has been made to reach a mutually satisfactory agreement."

FERC’s testimony was part of a conference sponsored by the Senate Energy and Natural Resources Committee on natural gas.

Committee Chairman U.S. Sen. Pete Domenici, R-N.M., said in a statement that the conference included a number of panelists and focused on increasing natural gas supplies, expanding access to LNG, improving natural gas infrastructure, environmental concerns, diversification and conservation and regulatory hurdles.

"What the commission did was respond to the Senate committee’s request for suggestions as to what matters it should address in energy legislation," Lee said. "(Eminent domain) was one issue that the commission included in a wide range of suggestions as to what the committee should consider in terms of legislation that will get necessary infrastructure built."

FERC officials also recommended that FERC be given exclusive jurisdiction over the siting of LNG terminals, among other things.

Lambert said he is "very concerned" about FERC’s request for eminent domain power.

"It sounds like they pretty clearly said to a pro-energy committee that communities could use the current rules to stop these (LNG) projects from happening," Lambert said. "If (FERC) can have the power to essentially take away people’s property, they can put these (LNG facilities) anywhere they want."

FERC officials have said their staff is looking into the city’s contention that Hess LNG miscalculated the distance to which an LNG vapor cloud could extend.

Lambert said Massachusetts Sen. John Kerry’s office attempted to get him permission to testify at the conference, but the request was denied.

"I’m sending a letter (to Domenici) telling him that I’m very disappointed with not being given an opportunity to speak, given that FERC was given an opportunity and spoke to an issue of great consequence to Fall River, which is this eminent domain issue," Lambert said.

"I’m pursuing a request to address that committee sometime in the future."

The Herald News: www.heraldnews.com

1/27/2005

Eminent domain's shadow: GT, woman duel over her home — San Bernardino County (CA) Sun, 1/26/05

By Nikki Cobb
The shrubs standing feeble sentry in front of the tan adobe house on Barton Road need trimming, and the weed-mottled yard is mostly dirt. A dead tree trunk sits hulking off to one side. There's a bag of cement on the front porch.

Jo Stringfield knows her home is neglected. She hasn't been able to muster the energy to finish projects since learning that the city wants the land and if she won't sell, it will be taken by eminent domain.

"I was going to do a little repair work, a little upkeep," Stringfield said. "But why do it, when I don't know how long I'll be able to stay?"

Grand Terrace officials want the 1.9 acres Stringfield's house sits on in the 2200O block of Barton to build Town Center, a shopping complex with a grocery store, restaurants and a new city library.

To make way for the project, the developer wants to buy Stringfield's property as well as her neighbors'.

Most of the other landowners have reached agreements and sold their properties. Stringfield hasn't, and city officials have said they might resort to taking her house and lot by eminent domain.

City Manager Tom Schwab said all the properties in the area were appraised for between $7 and $8 per square foot. He said Stringfield has been in ongoing negotiations with the city, and that eminent domain is a last resort.

At $7 per square foot, Stringfield's 1.9 acres would bring her $304,920. At $8, she'd be paid $348,480.

"We sometimes do need to use eminent domain at the bargaining table," Schwab said. 'But I told the developer, we are not throwing anyone out of their house."

Stringfield, 57, moved to the house as a child in the 1950s. Her family had horses, cows, burros and chickens, and she remembers riding her horse up Barton to Blue Mountain.

After graduating from Colton High School, Stringfield left home. She came back when her mother died in 2002. Stringfield is convinced pressure from the city to sell the family home hastened her mother's death.

"They were like vultures. My mom died in confusion about the house," she said. "It was devastating, the stress they put her through."

Stringfield's neighbors have negotiated deals. But she cries when she thinks about leaving her childhood home.

"I love my home. I have a lot of emotion attached to it," she said. "I hate the term 'holdout." But yes, I suppose I am the last holdout."

Stringfield sees some irony in her negotiations with the city. She said she can't sell her property, bound instead to what the city appraisers deem "fair market value' to create a retail center to shore up the tax base.

"The city wants to generate income," she said. "It's OK for them to want to make money, but I have to take whatever you give me?"

Stringfield said she's spent years "in limbo," and she doesn't know how the battle will end. She doesn't understand how the city could pressure herself and her neighbors, many of them seniors, many ignorant of complex business dealings.

But Schwab said there had been a misunderstanding the city had believed Stringfield didn't live at the house, but rented it out.

He said had he known she lived there, he would have approached the transaction differently.

"It is the (redevelopment) agency's hope that they can come to an agreement and not involve us' forcing eminent domain, he said. "We cannot displace people."

San Bernardino County Sun: www.sbsun.com

A test for property rights — Orlando (FL) Sentinel, 1/27/05

My Word

By Carol Saviak
Throughout his campaign and in his second inaugural address, President George W. Bush struck a chord with millions of Americans when he outlined his plans to create an "ownership society." This message resonated with average voters who understand the motivating desire to own their own homes and businesses.

Property ownership provides the means for ordinary persons to secure economic independence and security. For most, the home is their single largest investment and greatest financial asset. Many small businesses are financed by entrepreneurs borrowing money against the value of their homes.

Economists who have studied why free markets succeed, when the economies of less developed nations fail, have determined property rights and the rule of law are essential to developing the prosperity associated with free economies. A nation's commitment to the protection of property rights is a key factor in assessing a nation's future economic potential.

Next month, the U.S. Supreme Court will hear one of the most important property-rights cases in its history. The case, Kelo v. New London, was filed by Susette Kelo and her neighbors when their homes were condemned by the city of New London, Conn., through eminent domain. The basis for condemnation was purely "economic development" purposes: to make way for a private company to build a new plant and associated amenities adjacent to the plant.

Twenty-five organizations, including renowned urban-policy scholar Jane Jacobs, the NAACP, the Southern Christian Leadership Conference, the AARP, the American Farm Bureau, legal scholar Richard Epstein and others have filed amicus curiae (or friend of the court) briefs supporting the Kelo appeal. These groups recognize the alarming abuse of power occurring across the country. In its report, Public Power, Private Gain, the Institute for Justice which is litigating the Kelo appeal, has documented more than 10,000 properties similarly targeted by government countrywide.

The Fifth Amendment to our Constitution established government's power to take private property for public use. Historically, this meant building new roads, schools, bridges, and other public facilities. Local governments are now stretching the terms "public purpose" and "urban renewal" to hide their transfer of an individual's private property to private for-profit corporations.

The Wall Street Journal recently reported the U.S. Department of Justice was considering filing an amicus brief in support of New London's power to take Kelo's home. Such an action would have openly contradicted Bush's statements regarding the importance of private-property ownership.

This week the deadline for filing amicus briefs passed without intervention by the Bush administration. This case now goes to the Supreme Court, which will establish whether or not government has unlimited power to seize your property and transfer it to another private entity if the government can simply project greater tax revenue than you now pay.

The president shrewdly avoided a misstep this week in deciding not to undermine the constitutional rights that protect all American property owners and bolster our nation's economy.

Orlando Sentinel: www.orlandosentinel.com

Carol Saviak is the executive director of the Coalition for Property Rights in Orlando FL:
www.proprights.com

Brooklyn development group files amicus brief

Brooklyn United for Innovative Local Development (BUILD), in conjunction with a New York based carpenters' union, has filed an amicus curiae brief with the US Supreme Court in support of the City of New London CT in the eminent domain case to be argued on February 22. The brief is online at:
http://www.nolandgrab.org/docs/BUILDetal.pdf

1/26/2005

GOP rule seems headed back to Reconstruction days — Athens (GA) Banner-Herald, 1/26/05

By Bill Shipp
Why was the GOP unable to regain control of Georgia government for 134 years?

Part of the answer: It took more than a century for Georgians to forget what Republicans did the last time they were in charge. Public corruption was rampant in the Capitol halls. Crooked carpetbaggers and ruthless scalawags, all driven by greed, ran amok, converting public property to private treasure troves and obligating the state government to long-term debts that it could never satisfy.

Generations of Georgians related to their children the horror stories of Republican-wrought Reconstruction. As older Georgians died out and new residents moved in, the bad old days of Reconstruction were finally forgotten. Hardly anyone recalls why the state wallowed in poverty and on the edge of financial ruin for so long after the Civil War. Today, wearing a Republican badge is an honor for some. Many of our forebears would have thrown up.

Alas, let's be fair. The currently ruling GOP tells us that we are in a new era. This is not the Republican Party of Abe Lincoln and Thaddeus Stephens; it is the one of Barry Goldwater and Ronald Reagan - so they say.

Republicans want us to know that they ended their century-plus hiatus in Georgia in order to restore faith in representative democracy, to give the people more voice in government.

Really? Check this out, and you may wonder whether Georgia is on the cusp of reconstruction II:

The current Republican administration convened a special "New Georgia Commission" with the stated mission of "returning public trust in government (to) ensure that in all business matters, strict codes of conduct and ethics are enforced." Sounds great, right? However, the New Georgia Commission met in secret and out of compliance with the state's open meetings and open records statutes. That may have been a tip-off to coming events.
Among the ideas growing out of the New Georgia Commission: wider use of eminent domain (the state's authority to seize private property for the perceived public good). The New Georgia's eminent domain dream came to life in a prefiled legislative measure, Senate Bill 5, which allows the state to seize private property and turn it over to private developers. A similar concept used by a few other states is now being tested in the U.S. Supreme Court. Under provisions of SB 5, state or local governments could grab your house or business; transfer it to a private developer and, Voila! It would become an office tower or parking garage leased back to the state of Georgia. Or Senate Bill 5 could be used to turn a public highway (Georgia Highway 400, for instance) over to private interests for conversion into a for-profit tollway.
Pushed by state Senate President Pro Tem Eric Johnson, R-Savannah, an architect turned developer, SB 5 does more than allow the state to become the real estate agent for private corporations. The measure would allow the state, or any Georgia county or city, to lease to private companies its public school buildings, airports, water and sewer systems, roads, etc. It would exclude negotiations for all such deals from the Open Records Act. It would abolish requirements for public
bidding. The "lowest bidder wins" concept also goes out the window.
It gets worse. This bill, under consideration in Sen. Jeff Mullis' (R-Chickamauga) Economic Development Committee, provides few restrictions for state leases or long-term debt involving private parties. Leases, now generally granted on a one-year basis, would become open-ended and bind governments for long periods of time. No referenda are required to ratify any deal.

The Savannah Morning News concluded: "This bill is so far removed from responsible, conservative government that it makes one wonder if a project is already in the works but needs eminent domain to succeed. It's odd to see Mr. Johnson take the lead on a measure that would allow such government intrusion Š Trumping private property rights with the plans of private developers is a terrible idea." (Sen. Johnson responded: "The New Georgia Infrastructure Act (SB 5) proposes a sensible way to meet the needs of the citizens of Georgia in coming years without having to implement tax increases at the state and local levels. It would encourage the use of future anticipated fees and revenue to leverage construction costs by private companies today.")

After reviewing Senate Bill 5, a noted authority on eminent domain gave us this unbiased and scholarly analysis: "This is the worst piece of legislation I have ever seen in my life - 50-year leases with financing deals using state property - all shielded from public scrutiny. Huey Long in his heyday would not have gone this far."

In another time, we would have dismissed the absurdity of SB 5 with a mild rebuke for wasting the legislature's time. Not now. This measure springs from the leadership of the Georgia General Assembly - leaders who have already adopted rules to silence debate, quash dissent, eliminate amendments, operate in secrecy and grease the tracks for their desired legislation.

At his inauguration last week, President Bush promised to battle tyranny wherever it reared its ugly head. He wasn't very specific. But he could have been talking about the administration of New Georgia right in his own backyard.

Athens Banner-Herald: http://onlineathens.com

Bill Shipp is editor of Bill Shipp's Georgia, a weekly newsletter on government and business: Box 440755, Kennesaw GA 30160
email bshipp@bellsouth.net

Brought to the attention of Eminent Domain Watch by
Reed A. Cartwright: De Rerum Natura

Bill White wants to steal your house — Lone Star Times

By Owen Courreges
[Houston TX] Mayor White wants to build more public housing with your tax dollars, both to make housing more affordable and stave off gentrification.

Personally, I never really understood the problem with gentrification (gentrification, for those who don't know, involves the process by which a poor neighborhood becomes wealthier via an influx of wealthier residents). Sure, poorer residents are compelled to move because of rising property taxes, but their property values skyrocket concurrently. As such, they make out like bandits. Oftentimes they move into better homes as a result. Everybody wins.

But the typical liberal line is that poor minorities are 'displaced' by gentrification, and so a bloated municipal government, already strapped for funds, must proceed to spend gobs of money on public housing projects to prevent neighborhoods from turning wealthy. What a country!

Still, that part of Mayor White's plan is stupid, but not quite scary. What's scary is that White is toying with the idea of using eminent domain to actually take properties:

White said the city will work closely with non-profit groups and developers to build the affordable housing. He said the city is seeking the Texas Legislature's help by seeking the right to match top bids on foreclosed properties, something Dallas is able to do.

He said the city may also explore using its eminent domain powers to acquire some properties.

"I'm personally going to spend more time than anything else this year on this issue," White said in the press conference.

Hold onto your homes, gentlemen -- Mayor White is contemplating the merits of stealing your house and building cheap housing for poor people in its place. That's really compassionate, unless you're the homeowner. And here I was thinking that we had a right to property in this country. I suppose that doesn't matter a great deal to the tyrannical whim of Mayor White.

Let's just hope that your home isn't in the way of White's grand vision of social progress.

Lone Star Times ("A Blog as Big as Texas"): www.lonestartimes.com

Eminent domain abuses before Supreme Court — (Yuma AZ) Sun, 1/26/05

Editorial
This spring the U.S. Supreme Court will look at an important case involving private property rights and the government's ability to violate those rights.

The issue before the court concerns the city of New London in Connecticut and whether it has the power to use eminent domain to take land from property owners and convert it to public use under a municipal redevelopment plan. This will be a closely watched ruling because it could have widespread impact, including on our own community.

The courts have held that eminent domain is a proper use of government power under the 5th Amendment to the the U.S. Constitution, which states that private property cannot "be taken for public use without just compensation."

The devil is in the details, specifically what is "public use" and what is "just compensation." Some have interpreted "public use" to including taking private property from one owner and giving it to another private owner, such as a large business. In Arvada, Colo., for example, the city tried to use eminent domain to acquire private property for a Wal-Mart. The justification for this is that the "public good" is served by having a robust economy (and, incidentally, additional revenue sources for government).

It is these "public good" issues that are the concern more than the use of eminent domain for public roads and buildings, which the courts seem to have accepted, although even these can involved abuse of power. The government's power to condemn and forcibly take a person's private property, even if compensation is paid, isn't something to be taken lightly or used in a frivolous or indiscriminate way.

The right to one’s property is a bedrock American principle. It should be waived only under narrow and rare circumstances — and when the power of eminent domain is invoked, for a clearly recognizable public benefit.

Private property rights are today under siege in many ways. Thanks to the publication of Steven Greenhut's “Abuse of Power: How the Government Misuses Eminent Domain,” we now have the most comprehensive, up-to-date look yet at this problem.

Greenhut is a senior editorial writer and columnist at the Orange County Register. He casts a wide net in trying to get a handle on a national problem. “Eminent domain creates an avenue for corruption,” Greenhut points out, “as government officials get to play God with other people’s neighborhoods and businesses, and can therefore punish enemies and reward friends.

“Eminent domain's use for private advantage is so outrageous because it strikes at the root of American freedom,” Greenhut writes. “We are not particularly free if our life’s labors can be taken on the whim of a government official, acting on behalf of a private party.”

The author outlines in “Abuse of Power” sensible recommendations about what can be done to curb government’s land-grabbing enthusiasms. They include: requiring that any condemning agency undertake a rigorous cost-benefit analysis before using eminent domain; providing pre-taking appraisals to property owners; ensuring judicial review of whether the taking is truly for a “public use”; making jury trials available in contested cases; and requiring full compensation for a defendant's legal fees.

These steps would go a long way to eliminating frivolous takings, and we hope the Supreme Count offers support for going in that direction.

The Sun: http://sun.yumasun.com

Groton Town Council Votes Against Request To Back Eminent Domain — The (New London CT) Day, 12/26/05

Connecticut Conference Of Municipalities Sent Letter Asking For Support

By Gladys Alcedo
[Groton CT] Town councilors unanimously voted Tuesday night to reject a request that they support the New London Development Corp.'s use of eminent domain at Fort Trumbull in New London.

Responding to a plea from the Connecticut Conference of Municipalities, Councilor Peter J. Bartinik Jr., a lawyer, suggested the council send a letter, saying, “We don't agree with what (they're) doing and encourage them to take their funds and go to the opposite side of the case.”

The CCM, which advocates for the interests of the state's cities and towns, is among a number of groups that have come forward to file friend-of-the-court briefs in support of New London and the NLDC as they prepare to defend the condemnation of 15 properties at Fort Trumbull to make room for private development that would generate much-needed tax revenue for New London.

Seven homeowners have appealed to the U.S. Supreme Court, arguing that the government's seizure of their private property was improper. They contend that the economic development proposals do not represent a proper “public use” of their land.

In letters last month to mayors, first selectmen and city and town managers, the CCM sought participation in the case.

Town Manager Mark R. Oefinger said Groton, as far as he knew, “has never used eminent domain to acquire property for economic development purposes.” But that didn't mean, he said, that a future opportunity might not arise “whereby the use of eminent domain for such a purpose could be desirable.”

The last time the issue of eminent domain came up in Groton was in 2003 when town officials became exasperated with the lack of progress in rebuilding the former Central Hall Block that burned in downtown Mystic. But the idea never went any further.

The council's decision Tuesday, reached during a meeting of the Committee of the Whole, is expected to be ratified at the council's next regular meeting. It followed a town Planning Commission recommendation last week. The commission said in a unanimous decision that it “did not endorse the town of Groton supporting New London in the case.”

Town Councilor Paulann H. Sheets, a lawyer, said she did not support the rationale used to substantiate the seizure of private lands.

“I frankly have a big problem with the philosophy of ‘Let's take your private property, including your house, because it only generates X amount in taxes,'” and turn it over to another entity to generate more taxes, she said. “Under those principles, no property is safe.”

The Day: www.theday.com

Eminent Domain Not Popular For A Reason — The (New London CT) Day, 1/26/05

Letter to the Editor

By Scott Bullock, Sr Attorney, Institute for Justice
The numbers are in and it is not surprising that a majority of New Londoners are against eminent domain in the Fort Trumbull neighborhood. People do not like it when government attempts to kick people out of their homes.

But according to New London Development Corp. President Michael Joplin, people turned against eminent domain in New London only because of the public relations efforts of the Institute for Justice, the law firm that represents property owners fighting to save their homes. ("New Londoners back change in city government," Jan. 16.) Mr. Joplin blames the Institute for problems of his and his failed organization's own making.

Mr. Joplin also claims that NLDC has "won every time we've gone to court." The truth is that a majority of the homeowners won in the trial court and lost by a 4-3 margin in the Connecticut Supreme Court, setting up the appeal now before the U.S. Supreme Court.

Mr. Joplin also states that NLDC has focused on "legalities." By fighting over "legalities" for years, at whatever the cost, the NLDC has not focused on the wisdom, morality, or constitutionality of its actions.

On Feb. 22, Fort Trumbull homeowners stand poised to make history before the Supreme Court. They can hold their heads up high knowing they have fought for their rights and for the rights of every homeowner in the nation. In contrast, New London city councilors, NLDC members and their lawyers should hang their heads in shame at what they have done to Fort Trumbull property owners, the citizens of their city and state, and to the Constitution of the United States.

The Day: www.theday.com

Institute for Justice: www.ij.org

1/25/2005

Groups Back NLDC's Eminent Domain — The (New London CT) Day, 1/25/05

Cities, States File Briefs For Case In High Court

By Ted Mann
A broad range of states, cities and economic development groups have asked the U.S. Supreme Court to uphold the New London Development Corp.'s use of eminent domain at Fort Trumbull as a proper use of the government's power to seize private land.

Among the groups coming to the defense of the city and the NLDC, in friend-of-the-court briefs filed last week, were the National League of Cities and International Municipal Lawyers' Association; attorneys general from 13 states and the District of Columbia; and the Connecticut Conference of Municipalities.

CCM assembled a coalition of more than 30 other state municipal associations to argue that "the Fifth Amendment does not prohibit the State of Connecticut from empowering a distressed municipality to use eminent domain to assemble small urban parcels into a unified package suitable for modern economic development."

The briefs were filed as attorneys for the NLDC and the city prepare to defend their condemnation of 15 properties at Fort Trumbull, where the city hopes a planned hotel, office and residential development will generate much-needed tax revenue for the city.

The seven property owners have appealed the city's efforts to seize the land to the nation's highest court, arguing that the economic development proposals do not represent a proper "public use" for their land, and asking the court to require more stringent judicial oversight of eminent domain applications.

Oral arguments in the case, known as Kelo v. New London, will be heard by the justices Feb. 22.

A slew of advocacy groups filed amicus curiae briefs on behalf of the Fort Trumbull property owners, and by Friday a similarly large group had leapt to the city's defense, depicting eminent domain as a harsh but necessary remedy for urban woes.

"The assembly of urban lands for economic growth is a 'public use,' as it eliminates the accretion of small parcels that has acted to hinder old cities like New London from competing in the market for economic development projects," attorneys for CCM and 32 allied organizations wrote. "...As such, it plainly falls within the police powers of the State of Connecticut, which has determined that its municipalities need the power to assemble lands to create developable urban parcels that the market itself has been unable to supply."

The briefs argue that eminent domain is an invaluable tool for cities and states trying to further redevelopment plans, or, as in New London's case, to boost a sagging tax base.

"We've focused on both New London and the broader question ... of the importance of economic development to municipalities, especially in Connecticut," said Allan B. Taylor, an attorney at Day, Berry & Howard in Hartford, who wrote the CCM brief.

Attorneys from the Institute for Justice, a public-interest firm representing the property owners, have said taking land purely to bolster private business - even to improve the city tax base - is unconstitutional, and have criticized the NLDC's development plan as speculative and vague.

CCM's lawyers reject that assertion, as the NLDC and the city did in their own brief, and warned that asking the courts to make decisions on the specifics of eminent domain uses, as the institute suggests, would give the judiciary a responsibility intended for legislatures.

"The appropriate authorities looked at that question and reached a reasoned judgment that the benefits would probably be realized and that should be sufficient," Taylor said.

Also filing a brief were the American Planning Association, the group's Connecticut chapter and the National Congress for Community Economic Development, who argued that the property owners would hurt efforts to develop urban plans by restricting eminent domain seizures to blighted properties.

"The planning association and the congress ... are not particularly eager to engage in eminent domain, nor do they think it should be the first option of local governments," said Tom Merrill, a professor of law at Columbia University who wrote the brief for the groups. "But they think it's an important power to have in the mix of things. Severely limiting it ... could distort the process of sound planning."

Among the other organizations filing briefs in support of the city and the NLDC were: the City of Baltimore; the California Redevelopment Association; the City of New York; the New York State Urban Development Corp.; the Massachusetts chapter of the National Association of Industrial & Office Properties; and a group of 13 law professors.

The Institute for Justice and the property owners have until Feb. 11 to submit reply briefs to the court.

The Day: www.theday.comCalifornia real estate attorney

1/24/2005

Eminent Domain Defended In New Brief — The (New London CT) Day, 1/22/05

Attorneys claim Fort Trumbull property seizures constitutional

By Ted mann
Attorneys for the New London Development Corp. and the city argue in a new filing with the U.S. Supreme Court that the use of eminent domain to seize property for commercial development at Fort Trumbull is constitutional and in keeping with the prior use of state power.

In a brief submitted Friday, the attorneys dismissed the claims of seven Fort Trumbull property owners who had argued in an appeal that allowing the city to seize land for private development violated their rights under the Fifth Amendment and would allow the government to seize homes for essentially speculative development projects.

The attorneys called such fears "Chicken Littleism" and asked the court to reject the petitioners' calls for greater scrutiny by the judicial branch of eminent domain use, saying the courts had traditionally deferred to legislative bodies on the issue.

The property owners, with the assistance of the Institute for Justice, a public-interest law firm devoted to fighting use of eminent domain, have won a hearing before the high court on whether, as they argue, the city's plans violate the Constitution's "takings clause" because the NLDC is seizing the lots for private commercial development in an effort to invigorate the city's anemic tax base.

The city attorneys countered Friday that property seizure in an attempt to improve the city's economic development — even indirectly, through spurring private growth — is as much a public use of eminent domain as when the land is used for reservoirs or railroad tracks.

"Such holding is no less valid merely because the economic improvements in question will be achieved by allowing private entities to lease the property taken through eminent domain," the brief said. "The principal focus of the public use equation has always been whether the taking will produce a significant benefit to the public and not the means by which that benefit comes into being."

Opponents of the Fort Trumbull redevelopment, which would put a hotel, offices and luxury apartments near the Pfizer Inc. complex, have said that any potential benefit for the city is purely speculative, and that the primary beneficiary will be Pfizer, the pharmaceutical company, itself.

Not true, the city's attorneys said.

The need for development in the city is "undisputed," according to the brief, as a result of "staggering economic woes," including high unemployment, a declining population and the loss of the Naval Undersea Warfare Center in 1996.

Despite what they called "quibbles" from opponents of the NLDC's development plan, the brief argues that there is "more than a reasonable likelihood that the projected benefits of the (plan) will come to pass and that the proposed takings are therefore necessary to the economic rejuvenation of New London."

"On the specific facts of New London, there's enormous evidence of careful municipal planning and evidence of the particular economic benefits that are going to come out of this plan," said Daniel J. Krisch, an attorney representing the NLDC. "What's being done by the city has a really clear relationship ... with the stated public goal."

The attorneys also cited a lower court's finding that "the record clearly demonstrates that the development plan was not intended primarily to serve the interests of Pfizer, Inc., or any other private entity but, rather, to revitalize the local economy ..."

Attorneys at the Institute for Justice said the NLDC's statement to the court was roughly what they had expected.

"There really weren't any surprises in the brief," said Scott Bullock, the attorney handling the property owners' case, which is known as Kelo v. New London.

"I think the fundamental problem with their brief and their position is that they really do not recognize any constitutional limits on eminent domain for private parties," Bullock said Friday, after reviewing a copy of the NLDC brief. "They essentially say that if the government jumps through the necessary hoops, then they can take your home, they can take your business and give it to another private party in the hope that the trickle-down benefits from that private party will benefit the city."

While the NLDC attorneys say their counterparts "prophesy a world in which churches are replaced by Walmarts (sic)," and call that view "cynical," Bullock said he wasn't so sure.

He hadn't heard of any Wal-Marts, Bullock said, but "they've certainly been after churches for Costcos and Ikeas. This is a very real threat that property owners are under."

The institute's attorneys will start work immediately on a reply brief, due Feb. 11, in advance of oral arguments Feb. 22.

Friday also was the deadline for amicus briefs on behalf of the city and the NLDC, and the city's attorneys hoped to stack up nearly as many as the 25 filed on behalf of the Institute for Justice.

Connecticut Attorney General Richard Blumenthal weighed in on behalf of the state, calling eminent domain a power eight centuries old and vital to the state's well being.

"The delicate, difficult balance between the rights of private property owners and the larger public was rightfully and responsibly considered in this case - both by governmental officials and the courts," Blumenthal said in a written statement. "Regional economic hardship requires that government have the right and power to foster recovery."

In a draft of his brief, the attorney general argues that the challenge to the NLDC is a challenge to the state's primary strategy for fighting economic stagnation in its cities.

Among the others expected to file briefs, according to Krisch, were the National League of Cities, Boston Redevelopment Authority, the Empire State Development Corp. and a group of 13 professors specializing in property law.

"Obviously," Krisch said, "the cities have a great deal at stake in what's going on here."

The Day: www.theday.com

1/23/2005

Will Bush Side with the Property Thieves? — Baltimore (MD) Chronicle, 1/21/05

COMMENTARY

By Sheldon Richman
Governments justify "eminent domain" plunder on the grounds that the higher tax revenues produced by the new uses will benefit the public. Bah!

Susette Kelo's' story is becoming tragically familiar. She and her neighbors are at risk of losing their homes and businesses because the local government has conspired with a corporation to condemn their land under the power of eminent domain. This is happening in New London, Connecticut, the latest place where legal plunder in America is on display for the whole world to see.

The twist is that the Bush administration — self-proclaimed champion of the ownership society — will apparently give its blessing to the land heist. According to the Wall Street Journal, "[The] Administration may file an amicus brief against property owners in an upcoming Supreme Court case concerning eminent domain. Several property-rights advocacy organizations have publicly asked the administration to side with the landowners, but — ominously — there's been no response."

We've heard similar stories before, because this is happening all over the United States. As the Institute for Justice explains on its website: [The] City, the New London Development Corporation (a private development corporation) and Pfizer Corporation had reached an agreement. Pfizer would build a new facility nearby. The NLDC would take all the land in [Susette Kelos'] neighborhood and transfer it to a private developer who would in turn build an expensive hotel for Pfizer visitors, expensive condos for Pfizer employees, an office building for biotech companies, and other projects to complement the Pfizer facility. The State and the City would contribute millions of dollars. The only thing standing in the way was Susette and her neighbors.

When the Constitution's framers said "public use,” they meant roads, post offices, and the like. There is no reason to believe they meant giving private land to businesses because higher tax revenues and jobs would be produced.

Governments justify such plunder on the grounds that the higher tax revenues produced by the new uses will benefit the public. Bah! That's a tissue-thin rationalization for land grabs on behalf of the well-connected, but courts, unfortunately, are buying it.

It's a sad fact that the US Constitution permits governments to exercise the power of eminent domain. This power is wholly contrary to the spirit of the American founding and a throwback to absolute monarchy, in which the king was seen as the literal owner of the realm. All land was his, and people lived on it at his pleasure. If he wanted a parcel, he had only to take it.

America's Framers didn't dump this anti-individualist power, but they did seek to limit it. In the Fifth Amendment they specified that property could be taken for public use only, and that the owner was due just compensation. While that power still conflicts individual rights, at least it was subject to restrictions — if the "takings clause" were read literally, which it is not. When the Framers said "public use," they meant roads, post offices, and the like. There is no reason to believe they meant giving private land to businesses because higher tax revenues and jobs would be produced.

The Institute for Justice says, “In just five years, the government filed or threatened condemnation of more than 10,000 properties for private parties.” This is intolerable in an allegedly free society. When will the people demand that it stop?

Kelo and her neighbors in the Fort Trumbull section of New London are not behaving like docile subjects. They sued, but the Connecticut Supreme Court last year ruled 4-3 in favor of the land thieves. So now the case has gone to the US Supreme Court (Kelo v. New London). Joining the property owners as friends of the Court are such champions of private property as the Competitive Enterprise Institute and Cato Institute. So far the Bush administration appears to be on the other side.

The US government is good at self-righteously lecturing others about human rights and morality. The Bush administration's cheerleaders condemn nearly any criticism of the president as a betrayal of America. But with the administration even considering siding with the land thieves, who is the real betrayer of America's ideals?

The Institute for Justice says, In just five years, the government filed or threatened condemnation of more than 10,000 properties for private parties. This is intolerable in an allegedly free society. When will the people demand that it stop?

The Baltimore Chronicle: www.baltimorechronicle.com

Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine: www.fff.org

Comments on Connecticut's Brief in Kelo v New London — 1/21/05

By Timothy Sandefur, Pacific Legal Foundation

Connecticut’s brief in Kelo v. New London — the big eminent domain case — was filed today. It’s too long to post, but one argument in particular strikes me as glaringly wrong. “[T]he primary purpose of the Takings Clause,” the brief says (p. 12), “is not to act as a substantive restraint on government behavior, but to assure compensation for any affected property owners should the government choose to exercise its eminent domain power; see Eastern Enterprises v. Apfel, 524 U.S. 498, 545 (1998) (Kennedy, J., concurring).” That is entirely untrue.

First of all, the Takings Clause is made up of two clauses, really—the public use clause and the just compensation clause. The public use clause holds that government may take property only for a public use. What is the difference between a public use and a private use? You cannot answer that question without imposing substantive restraints on government behavior. It’s just not logically possible. And if the primary purpose of the Takings Clause was not to impose such restraints, why would the public use clause exist at all? The Constitution would just read “private property shall not be taken but with just compensation.” The state’s argument renders the public use clause meaningless, and it must therefore be incorrect.

Secondly, that is not at all what Justice Kennedy said in his Apfel concurrence. Here’s what he actually wrote:

If the plurality is adopting its novel and expansive concept of a taking in order to avoid making a normative judgment about the Coal Act, it fails in the attempt; for it must make the normative judgment in all events. See, e.g., ante, at 2153 (“[T]he governmental action implicates fundamental principles of fairness"). The imprecision of our regulatory takings doctrine does open the door to normative considerations about the wisdom of government decisions..... This sort of analysis is in uneasy tension with our basic understanding of the Takings Clause, which has not been understood to be a substantive or absolute limit on the government's power to act. The Clause operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge. The Clause presupposes what the government intends to do is otherwise constitutional.... Given that the constitutionality of the Coal Act appears to turn on the legitimacy of Congress’ judgment rather than on the availability of compensation...the more appropriate constitutional analysis arises under general due process principles rather than under the Takings Clause.
524 U.S. at 544-45.

In other words, previous takings cases have tried to avoid making “normative” judgments—that is, courts have avoided saying what government is not allowed to do—and as a result, takings cases have “presuppose[d that] what the government intends to do is otherwise constitutional” before continuing with the analysis of rational relationships. But that doesn't mean that Kennedy thinks the court should ignore normative judgments. Quite the opposite—he says it is impossible to avoid doing so. He then proposes to solve this conundrum by using a due process analysis before proceeding to the takings analysis. That proposal has never been accepted by the Court, which has always used both together and—even in Berman! — employed “normative judgments” when addressing “public use,” since it has applied the same “legitimate state interest” standard in both. But whether under the Berman standard or under Justice Kennedy’s, the answer is the same: if the power of eminent domain is “coterminous with the scope of a sovereign’s police powers,” then normative judgments, i.e., the legitimate state interest test, must apply just as much to one as to the other. The state’s citation to Kennedy’s Apfel opinion is misleading—and that’s not even mentioning the fact that Apfel was a regulatory takings case, and the public use analysis is different, and possibly not even applicable, in those, as opposed to outright eminent domain cases.

Everyone just wants so badly to avoid addressing “normative” issues, cause they’re all so freakin’ scared of Lochner. Well, sorry to break this to you, but you cannot say what a legitimate state interest is without applying political philosophy. And if you cannot take that step, then you cannot decide a rational basis case or a strict scrutiny case or any case in between.

Later on, we get this (p.17):

[The public use clause] almost assumes that any private property taken by eminent domain would ipso facto be for a public use.... This construction is borne out by the history of the Clause. In an earlier draft of the Fifth Amendment, James Madison proposed that the Clause should read, "[no] person shall be...obliged to relinquish his property, where it may be necessary for public use, without just compensation...." Madison’s draft—which was amended without comment by the House to its present form--arguably places more emphasis on the public use question. See Matthew P. Harrington, “Public Use” and the Original Understanding of the So-Called “Takings” Clause, 53 Hastings L.J. 1245 (2002).... [O]ur founding fathers chose, by their alteration of Madison's proposal, not to endorse such an intrusion into what was thought to be a legislative area (although they did reject purely private takings).

Note the parenthetical! The whole point of the case is that purely private takings are prohibited and that government’s blessing of such takings doesn’t make them acceptable. Moreover, you see here no citation to Madison’s other statements, no citation to the case law—no reference, for instance, to Calder v. Bull, or VanHorne’s Lessee v. Dorrance or Wilkinson v. Leland—indeed, the oldest case that they cite is from 1866! This may be due to the fact that they rely on Harrington’s silly little article, which, as I pointed out in my Southwestern University Law Review article, also fails to cite these cases. They fail also to cite such statements as this, from James Madison:

There is no maxim in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one that the interest of the majority is the political standard of right and wrong. Taking the word “interest” as synonymous with “ultimate happiness,” in which sense it is qualified with every necessary moral ingredient, the proposition is no doubt true. But taking it in the popular sense, as referring to immediate augmentation of property and wealth, nothing can be more false. In the latter sense, it would be the interest of the majority in every community to despoil & enslave the minority of individuals.... In fact it is only reestablishing, under another name and a more specious form, force as the measure of right.
Letter to James Monroe (Oct 5, 1786), in The Complete Madison 45 (Saul Padover ed., 1953).

But then, that is precisely what the state of Connecticut wants to do. By arguing that a legislative decision to condemn property makes it ipso facto a public use—ipso facto!—they are arguing nothing less than that might makes right; that saying it makes it so; that the legislature may do whatever it chooses to call legitimate. But if that were the case, why would the founders “reject purely private takings”?

Timothy Sandefur: tms@pacificlegal.org

Transit district uses eminent domain powers in San Marcos — North County (CA) Times, 1/21/05

By Paul Sisson
Despite vocal opposition from some San Marcos residents, the North County Transit District used its eminent domain powers Thursday to clear the way for a short section of rail that will some day be part of the Sprinter light rail project.

The transit district board voted 8-0, with member county Supevisor Bill Horn absent, to "extinguish" public easements on a short section of Walnut Hills Drive. Property owners living adjacent to the area were paid $1,000 each in compensation.

The transit district already owns the underlying ground and will soon build railroad tracks across Walnut Hills Drive as part of the San Marcos loop, which in turn is part of the 22-mile Sprinter light rail project from Oceanside to Escondido.

San Marcos residents took a public hearing on the matter Thursday as an opportunity to protest both the existence of the Sprinter's San Marcos loop and also the transit district's plans to close Shelly Drive, a nearby thoroughfare. The city of San Marcos has already sued the transit district over its plans to flex its eminent domain muscles and close Shelly Drive rather than construct a concrete railroad bridge over the street and leave it open.

Kathleen Sloan, who lives in the Walnut Hills neighborhood, called the $1,000 payment she will receive as compensation for loss of her easement rights on Walnut Hills Drive too little.

As many San Marcos residents have in the last year, Sloan noted that closing Shelly Drive will isolate a nearby neighborhood and will lengthen response times for emergency services.

"This is not in the best interest of the public," Sloan said."It will create an emergency nightmare."

She said the transit district should be willing to reconsider its plans for Shelly Drive.

"This is not an issue to be bull-headed about," she said. "Great ideas start with a plan that is open to change."

Patrick Yates, who also lives in the Walnut Hills neighborhood, said he is worried that having Sprinter trains zooming through San Marcos could hurt local property values. He said he had no idea that the Sprinter was headed for San Marcos until recently.

"I, like many other residents, was not made aware of the Sprinter when I moved in. If I had been, I don't think I would have bought the property,"

After hearing from the public, Jerome Stocks, a transit district board member and Encinitas city councilman, noted that the matter before the board was whether to extinguish property's owner's easements on Walnut Hills Drive, not whether to keep Shelly Drive open.

"Whether Shelly Drive remains open or is closed is irrelevant to our action today," Stocks said.

Hal Martin, a San Marcos city councilman recently appointed to the NCTD board of directors, said he believed that residents deserved more than $1,000 in exchange for losing their easement rights on Walnut Hills Drive.

"I do believe that a thousand dollars is not just compensation," Martin said.

However, Martin ended up voting for using eminent domain Thursday.

"The loop is going to happen. You can't stop the loop in my opinion," Martin said.

North County Times: www.nctimes.com