Kelo v New London

by Belle Waring on February 21, 2005

The Supreme Court will soon hear a case which could decide the limits of the power of eminent domain. The question in the case is whether the government of New London, CT can seize homeowners’ property and give it to private developers in a bid to “revitalize” the town. (Link to AP story).

Fort Trumbull is not besieged by blight, poverty or crime and New London is not building a highway or government building, and the residents’ appeal asks if “public use” allows governments to seize unblighted taxpayer property solely to encourage private development.

…New London officials say the taxes generated by redeveloping Fort Trumbull ultimately will benefit the public, and the state Supreme Court ruled that was enough to justify the condemnation.


That line of reasoning seems incredibly weak, and the potential for abuse, enormous. The Connecticut Supremes also relied on a rather dubious (and notorious) precedent:

The state Supreme Court majority in Kelo relied heavily on a 1981 Michigan Supreme Court ruling – Poletown Neighborhood Council vs. City of Detroit – which it cited as a “landmark” eminent domain case. But several months after the Connecticut Supreme Court issued its ruling in Kelo, the Michigan Supreme Court reversed its Poletown ruling. (Link to Hartford Courant article)

The Reason Foundation is assisting the plaintiffs. I think it’s obvious the Supreme Court should reverse the state Supreme Court, but I’m curious to see how the justices decide. Am I rooting for Scalia on this? Does anyone know how the justices are predicted to vote? (I seem to remember Eugene Volokh had a betting pool for Supreme Court decisions…)

{ 43 comments }

1

Chris Bertram 02.21.05 at 8:23 am

The first fragment of text that made it past my retina to my brain was

bq. CT can seize homeowners’ property

2

belle waring 02.21.05 at 8:56 am

oh, yeah, well, we totally can. that’s not even in dispute.

3

cac 02.21.05 at 9:04 am

Yeah I was a bit taken back by that phrase, having assumed that protection of private property was high up there on the list in the US. I assume this is with compensation?

4

Dave m 02.21.05 at 9:26 am

cac- yes, this is with “just compensation,” as required by the fifth amendment.

This case looks like an abuse of power by New London, but that isn’t enough to have its actions declared unconstitutional – the Supreme Court would have to, for the first time ever, rule that “public use” was something the Court had the authority to define. That’s not something I’m necessarily comfortable with the Courts doing, and all those conservatives who normally decry “judicial activism” should stand firm on their convictions.

Unfortunately, they won’t. This case is part of a much larger assault on the idea of the public sphere and the public good. Once they establish that it’s right for the courts to interpret “public use,” they will attempt to limit it further and further, hoping to eventually invalidate everything from easements and right-of-ways to environmental regulations.

The people of New London should change their mayor.

5

chris 02.21.05 at 9:53 am

Dave M. — the Court has long asserted authority to interpret the “public use” provision. It’s just been very deferential in doing so.

See, e.g., City of Cincinnati v. Vester, 281 U.S. 439, 446 (1930): “It is well established that, in considering the application of the Fourteenth Amendment to cases of expropriation of private property, the question what is a public use is a judicial one. In deciding such a question, the Court has appropriate regard to the diversity of local conditions and considers with great respect legislative declarations and in particular the judgments of state courts as to the uses considered to be public in the light of local exigencies. But the question remains a judicial one which this Court must decide in performing its duty of enforcing the provisions of the Federal Constitution.”

6

Scott Martens 02.21.05 at 10:46 am

Yeah, if the Supreme Court is going to be strictly literalist, the US Consititution only talks about “just compensation”. I’ve always understood that that doesn’t actually set any limits on what can be taken for public use, and that there were a slew of railroad related cases in the 19th century to back that up, so long as the courts rule that the money was reasonable and adequate due process was given. The 1930 case in Cincinnati is news to me.

I’m not a big defender of private property as a foundational principle, but I do think people have a right to basic security in their homes and things, and that there has to be some genuine reason to deprive them of things that are so transparently essential to their security. It doesn’t sound to me like New London is really doing anything that justifies tossing somebody out of their home.

7

Brett Bellmore 02.21.05 at 11:46 am

The Fifth amendment says, in relevant part,

“nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

It’s clear from this language that taking private property for anything BUT a “public” use wasn’t even contemplated. That public use literally meant that the government itself would be using the property, not just handing it off to somebody favored… Exactly what was meant to be prohibited.

Of course, that was a time when interstate commerce had to be commerce, which actually was interstate… I’d make no bets on whether the Supreme court would actually uphold the Fifth amendment’s intent.

8

jet 02.21.05 at 1:00 pm

If you are really curious about how this will be decided, see Detroit, MI. There is no doubt how the Supreme Court will decide, and I can’t believe they agreed to hear it.

9

Syd Webb 02.21.05 at 1:17 pm

I’m stunned that this is being treated as a constitutional, rather than a political question. Nevertheless must recognise that The World Is A Very Big Place and that the USA is a distant country about which we know little.

If the New London council is being unreasonable there should be big protest rallies to put the councillors on notice that if they persist they’ll be tossed out on their ears at the next election. And if there isn’t a majority of townsfolk to stop the ee-vul councillors, why enrich lawyers by fighting a court case?

Or am I being hopelessly unAmerican?

10

Doug Muir 02.21.05 at 2:16 pm

Syd, I think you’re confusing US city government with the British (and possibly Australian? IDK) system, which tends to be — gross generalization — more representative and more responsive, but also more politicized.

The US used to be the same way, but gross civic corruption in the late 19th and early 20th century produced a couple of waves of reform. These pushed many US municipalities towards city managers, appointed city boards, and other systems giving less (it was hoped) room for graft and cronyism. Very very very broadly speaking, municipal government in the US tends to be more professional and technocratic, less democratic and responsive, than elsewhere in the Anglosphere. This is especially so in smaller cities and suburbs.

(I /said/ very very broadly, so please don’t tell me That’s Not How We Do It In Madison. There’s no single form of mungov, and the aforementioned trend has thousands of exceptions. But as a broad comparison, it’s valid.)

Big protest rallies about municipal issues in American municipalities do occasionally happen, but they’re much less common than in Britain or France. (Or again, I assume, Australia.) Outside of college towns and the larger cities they’re downright rare.

Note also that such disputes often *are* resolved through the political process. But because the US is such a big place, the unlikely is more likely to happen somewhere. It only takes one stubborn city council, and voila.

And if there isn’t a majority of townsfolk to stop the ee-vul councillors, why enrich lawyers by fighting a court case?

I’m not sure I like you doing the ingenue thing, Syd. “If there isn’t a majority of townsfolk to stop the town from passing the curfew for the darkies, then why enrich lawyers?”

The fact that voters don’t much object to something, doesn’t mean that something is constitutional and wise.

I’m with Belle here… the Court has the power to define public use, and IMO this ain’t it.

Doug M.

11

KCinDC 02.21.05 at 2:39 pm

But how would team owners get their cronies in the government to seize land and give it to them to build stadiums? Surely it would spell the end of professional sports!

12

Cranky Observer 02.21.05 at 2:45 pm

I am sorry, but even as “liberal lefty” I don’t understand what the possible justification would be for using the government as an intermediary to seize private property and give it to another PRIVATE entity. To build a new town hall or prison, yes, that was anticipated in the Constitution. But to build a new shopping center? Which the original owner of the property did not want and will not reap the gain from?

“Future tax revenue is a public good”. Under that reasoning, any government can justify doing anything it wants for any reason. Read Larry Niven’s Organleggers series and remember that sales taxes on transplated organs forcible removed from ex-citizens with too many traffic tickets would also be a “public good”.

And I really like how these discussions leave out the /enormous/ profits that the real estate developers typically rake off. We use the bayonets of the State to confiscate property so the owers of Westfield can buy another km2 on Sydney harbour?

Cranky

13

Erik 02.21.05 at 2:52 pm

You don’t have to wait for Eugene Volokh, there is a perfectly good Forecast Engine right here:

14

Erik 02.21.05 at 2:55 pm

Oops the link didn’t appear. Guess I shouldn’t use HTML. Here is the do-it-yourself Supreme Court forecast engine: http://wusct.wustl.edu/#Engine

15

Jacob T. Levy 02.21.05 at 3:05 pm

the Supreme Court would have to, for the first time ever, rule that “public use” was something the Court had the authority to define.

Nope. It’s always said so. Since 1954 there’s been a ‘blight’ exception to the general traditional rule against taking for transfer to another private actor. And, yes, there was also a traditional right-of-way/ utility business exception for transfer to railroads etc. But the court never disclaimed the authority to judge whether something fell into those exceptions. It never held the words ‘public use’ to be legally meaningless, and always said that purely private uses were excluded. The story of the last fifty years is the story of the blight exception swallowing the rule and turning into an all-purpose economic improvement standard (culminating in Poletown); that’s what Kelo should stop.

Swiped from the Institute for Justice’s brief:

See, e.g., Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 245
(1984) (“[a] purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void); Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 80 (1937) (“one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid”); Missouri Pacific Railway Co. v. Nebraska, 164 U.S. 403, 417 (1896) (“[t]he taking by a State of the private property of one person or corporation, without the owner’s consent, for the private use of another” violates the Constitution).

16

roger 02.21.05 at 3:40 pm

Actually, I see little difference in this kind of seizure of private property by the public to be allocated to another private entity and the practice, quite common in the south, of giving tax breaks and raising money by way of bonds for private companies. Mississippi, since the thirties, has made a practice of issuing public bonds that go into buying and maintaining property for companies that promise to re-locate to Mississippi. In fact, the Sunbelt would suffer a wholescale meltdown if they banned this practice. The Locke institute tried to get it overturned in North Carolina in the nineties, and failed.
I’d love to see that system of socialism for the rich unravel, but I bet it won’t.

17

catfish 02.21.05 at 4:04 pm

Roger,

I’m not a huge fan of using public bonds for private development either, but at least it does not directly take anyone’s property. Because it effects all tax payers equally the costs and benefits are much more equally distributed and opposition is easier to organize. When the local government seizes someone’s home (with compensation) to give to a developer to build a Barnes and Noble, the benefits are widely distributed, but the costs are born by a very small group of people who have to relocate.

18

Nylarthotep 02.21.05 at 4:24 pm

The argument that I see happening here is coming down to what is meant by “Public Use.” Seems that the CT state supreme court has decided that it means “Public Benefit” rather than a true sense of “use.”

This I believe is a substantial abuse of the intents of the fifth amendment and the later application of the fourteenth amendment against states abuse of eminent domain. Findlaw has an interesting piece on this discussion at this link:
http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html

If this is allowed, this will be a true liberalization and even socialization of property rights.

I also believe that there is definitely a political aspect to this that hasn’t been spoken to. There is no city board or city manager that could do this. The citizens would still require representation in the city’s policy making. In fact I would say that this could easily be stopped by the city’s citizens if they so desired. I find it unlikely that a citizenry would castrate their ability to force a vote on a subject that seems to be very important to their own basic rights. I also understand how city managers work and that they are under contract to perform management, but they do not set policy for acquisition of property nor the related taxation of the citizens for that acquisition.

I am appalled that there is no reported political undertaking in this. I would have thought that the citizenry would see this as a direct threat. Once they have allowed this to occur to some of them, who would be next?

The only reason I can see that there isn’t any political movement, is that the vast majority of the citizens support this action. I hope that they pay for that poor decision.

19

Nylarthotep 02.21.05 at 4:25 pm

The argument that I see happening here is coming down to what is meant by “Public Use.” Seems that the CT state supreme court has decided that it means “Public Benefit” rather than a true sense of “use.”

This I believe is a substantial abuse of the intents of the fifth amendment and the later application of the fourteenth amendment against states abuse of eminent domain. Findlaw has an interesting piece on this discussion at this link:
http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html

If this is allowed, this will be a true liberalization and even socialization of property rights.

I also believe that there is definitely a political aspect to this that hasn’t been spoken to. There is no city board or city manager that could do this. The citizens would still require representation in the city’s policy making. In fact I would say that this could easily be stopped by the city’s citizens if they so desired. I find it unlikely that a citizenry would castrate their ability to force a vote on a subject that seems to be very important to their own basic rights. I also understand how city managers work and that they are under contract to perform management, but they do not set policy for acquisition of property nor the related taxation of the citizens for that acquisition.

I am appalled that there is no reported political undertaking in this. I would have thought that the citizenry would see this as a direct threat. Once they have allowed this to occur to some of them, who would be next?

The only reason I can see that there isn’t any political movement, is that the vast majority of the citizens support this action. I hope that they pay for that poor decision.

20

Matt Weiner 02.21.05 at 4:25 pm

There were some fusses about similar cases in Pittsburgh a few years back, most prominently one in which the mayor wanted to redevelop most of downtown against the will of some of the businesses whose buildings would be turned down. In that case huge protests were effective in stopping the plan, but only after Nordstrom’s (IIRC) pulled out for unrelated reasons.

The problem with the line “If you don’t like what the government is doing in this case, throw them out” is that by the time this happens the relevant people will have lost their homes already.

As a liberal lefty, this is one kind of big government action (like most other liberal lefties) I can’t stand–because its primary effect is to benefit the already rich. The future tax revenues have a way of not materializing. I’m also not a fan of doing the same with public bonds and tax breaks, for the same reason. And the constitutionality of that has also been called into question (or at least some varieties of it).

21

Nylarthotep 02.21.05 at 4:26 pm

The argument that I see happening here is coming down to what is meant by “Public Use.” Seems that the CT state supreme court has decided that it means “Public Benefit” rather than a true sense of “use.”

This I believe is a substantial abuse of the intents of the fifth amendment and the later application of the fourteenth amendment against states abuse of eminent domain. Findlaw has an interesting piece on this discussion at this link:
http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html

If this is allowed, this will be a true liberalization and even socialization of property rights.

I also believe that there is definitely a political aspect to this that hasn’t been spoken to. There is no city board or city manager that could do this. The citizens would still require representation in the city’s policy making. In fact I would say that this could easily be stopped by the city’s citizens if they so desired. I find it unlikely that a citizenry would castrate their ability to force a vote on a subject that seems to be very important to their own basic rights. I also understand how city managers work and that they are under contract to perform management, but they do not set policy for acquisition of property nor the related taxation of the citizens for that acquisition.

I am appalled that there is no reported political undertaking in this. I would have thought that the citizenry would see this as a direct threat. Once they have allowed this to occur to some of them, who would be next?

The only reason I can see that there isn’t any political movement, is that the vast majority of the citizens support this action. I hope that they pay for that poor decision.

22

boonelsj 02.21.05 at 4:33 pm

Well, I just had to read this case for my Property class, and my personal prediction is that they’ll let the ruling stand. The court does reserve some authority to judge whether or not the “public use” was actually such, but they give a HIGH degree of deference to the legislative determination on that issue. After Midkiff, my read is that any taking that transfers property to private owners is going to pass judicial scrutiny as long as (1) the private benefit is anicllary to the public benefit being advanced, and (2) the legislature had some rational basis for believing that the taking would generate that public benefit. Unless they want to overrule Midkiff, I have trouble seeing them overturning the lower court’s ruling.

23

boonelsj 02.21.05 at 4:35 pm

Well, I just had to read this case for my Property class, and my personal prediction is that they’ll let the ruling stand. The court does reserve some authority to judge whether or not the “public use” was actually such, but they give a HIGH degree of deference to the legislative determination on that issue. After Midkiff, my read is that any taking that transfers property to private owners is going to pass judicial scrutiny as long as (1) the private benefit is anicllary to the public benefit being advanced, and (2) the legislature had some rational basis for believing that the taking would generate that public benefit. Unless they want to overrule Midkiff, I have trouble seeing them overturning the lower court’s ruling.

24

roger 02.21.05 at 4:53 pm

Catfish, unfortunately, the effect of shifting the burden of siting to the residents often has the same effect that you deplore in the New London case — that is, the older residents are burdened with tax costs that not only include paying back on bonds, but also a greatly increased tax bill to pay for the infrastructural changes that occur with the arrival of a business — ironically, the increased tax burden is amplified by the fact that the potentially largest taxpayer, the business itself, is often shielded from paying taxes. So instead of the government seizing property outright, you just have a 300, 400 percent increase in property taxes that pretty much scatter older property owners.
And when the bonds are paid off, often times the businesses are already looking for new sites, moving to Mexico, etc, leaving communities holding the bag. I’d recommend an interesting book that follows the relocation of a business from New Jersey to Mississippi to Mexico by Bill Adler, Mollie’s Job. In Kentucky, they actually transfer tax money to businesses pretty directly — the state tax money that is taken out of the checks of workers goes directly into the banks of the businesses. You can’t get any more direct than that. One of my favorites was Willamette industries, which got a promise of 100 million dollars in incentives from the Kentucky state government on the promise to employ 82 people. See this article:
http://www.kydrc.org/publications/
low_road.pdf

25

Scott Lemieux 02.21.05 at 5:26 pm

Belle–this case is a little tough to predict, but I think most court-watchers would assume that the five conservatives–who have been expanding the “regulatory takings” doctrine–would strike the action, and this is also a case that is likely to peel off some liberals. It’s a little hard to predict, but takings has been one area where the Rehnquist has made a major shift in doctrine.

26

Steve Snyder 02.21.05 at 5:38 pm

You 14th Amendmenters are barking up the wrong tree. Is the city of New London going to own the land permanently? No. It will be transferred to developers.

The rail cases of the 19th century could use mail transportation as a justification of “public use,” legitimate or not. This case can’t do that, and I predict SCOTUS will not only swat it down but carve out a fair swath of legal territory in doing so.

27

Thomas 02.21.05 at 5:40 pm

It should be noted that the use of eminent domain is essential for redevelopment projects. In my hometown, the city used it to redevelop a blighted area (truly blighted–drug houses, empty lots, etc.), bringing in a Home Depot and a Costco. A portion of the resulting tax revenues is used in the surrounding neighborhood, for improvements to infrastructure and home repairs. Without eminent domain, the project simply couldn’t have happened. Someone would have held out, and that would have been the end of it.

At the same time that this project was being built, a neighboring first-ring suburb used eminent domain to clear out some businesses (things like plumbing supply, etc.) to give a favored car dealership (!) a better location.

There are clearly uses and abuses of this power.

Which isn’t to say anything about whether these uses are constitutional.

28

Cranky Observer 02.21.05 at 5:56 pm

> It should be noted that the use
> of eminent domain is essential
> for redevelopment projects.
> […] Someone would have held out,
> and that would have been the end of
> it.

So? If you look at the (perhaps now former) Kresge/K-Mart headquarters on 15 Mile Road in Detroit you will seen an old farmhouse right in the middle. Friends of our family had looked at buying that property when it was a farm and kept their eye on it. The owner refused to sell, so Kresge built around them. Didn’t hurt anything, and in the end the heirs sold it to Kresge who turned it into a conference center.

There is no constitutional right for Big Box to turn wide swaths of communitities into paved parking lots at the expense of individual Citizens.

And again, please look at the money flow. That property was “blighted” and “worthless”? Seems not so, if Big Box did build a store there.

Cranky

29

Thomas 02.21.05 at 9:56 pm

Cranky-
The question isn’t whether there are abuses in the use of eminent domain. Clearly there are. (And just as cleary there’s no constitutional right for developers, etc., to claim someone else’s property. The question is, can the someone else assert a constitutional right to prevent the taking?)

There are, without doubt, very many developsments–particularly, as I said, redevelopment projects–that wouldn’t happen without eminent domain. Redevelopment projects are more expensive to begin with, compared to greenfield development. The additional costs imposed by the absence of eminent domain simply means that most of these projects won’t happen. Some may still happen, but most will not. Certainly the example in my hometown wouldn’t have happened. Not because the land was “worthless”–I never said that–but because the costs of acquisition and planning in the absence of eminent domain wouldn’t have justified the project. (If the retailer’s actions are going to be interpreted, why interpret them to mean what you’d have them mean? For example, the fact that the retailers hadn’t moved in before the city acquired and cleared the property means the development wasn’t worth doing if the city wasn’t going to acquire and clear the land.) And I pointed out the money flow, in part because in the particular example some of the money flowed to inner-city residents in the surrounding area–residents who also can now go to “big box” retailers without driving for 40 minutes.

30

Phillip A 02.22.05 at 12:41 am

I live in CT and have been following this issue for the past couple of years. The most unusual aspect of the “eminent domain” asserted by the Town of New London and supported by the CT Supreme Court is that the alledged future benefit to the town is particularly insubstantial. The development for which the Ft Trumbull homes are to be sacrificed will be oriented to the tourist trade, with some portion of the area developed for up-scale housing (the area is near the New London historic district). The development would enjoy substantial real estate tax relief for a long time, so the Town had to claim the potential benefit of increased cash flow in the local economy would be significant enough to justify taking the Ft Trumbull homes.

There is a true snake-oil, pie-in-the-sky aura to the whole development scheme, and if it seems crazy that the state supreme court has gone along with it, you should keep in mind that that court is largely the creation of our recently-departed, ethically-challenged kleptocratic Governor Rowland, who never met a developer he didn’t like (as long as the gratuity was adequate).

Phillip in CT

31

John Quiggin 02.22.05 at 1:32 am

One question that interests me about this:

Suppose that instead of a government exercising eminent domain, we had a private developer who had sold the land subject to a covenant which included words similar to the takings clause of the constitution, that is, reserving the right to resume land on just terms and for a public (or community) purpose.

Which side would the Reason Foundation take in such a case?

32

Syd Webb 02.22.05 at 12:12 pm

Syd, I think you’re confusing US city government with the British (and possibly Australian? IDK) system, which tends to be — gross generalization — more representative and more responsive, but also more politicized.

The US used to be the same way, but gross civic corruption in the late 19th and early 20th century produced a couple of waves of reform. These pushed many US municipalities towards city managers, appointed city boards, and other systems giving less (it was hoped) room for graft and cronyism. Very very very broadly speaking, municipal government in the US tends to be more professional and technocratic, less democratic and responsive, than elsewhere in the Anglosphere. This is especially so in smaller cities and suburbs.

Bizarre. This is yet another example of the American distrust of democracy, to retreat from it rather than reforming it when encountering problems. No wonder you still have an electoral college, and no national electoral commission, after all these years.

: And if there isn’t a majority of townsfolk to stop the ee-vul councillors,
: why enrich lawyers by fighting a court case?

I’m not sure I like you doing the ingenue thing, Syd. “If there isn’t a majority of townsfolk to stop the town from passing the curfew for the darkies, then why enrich lawyers?”

Again, it just seems like US lawyer overuse syndrome – to resort to lawyers for something as simple as a political problem. As always, it’s another country and we should respect the fact they do things differently there.

The fact that voters don’t much object to something, doesn’t mean that something is constitutional and wise.

I’m with Belle here… the Court has the power to define public use, and IMO this ain’t it.

/What/ isn’t public use? You must have compulsory acquisitions to build roads. What if the road is build by a private corporation and they get to charge tolls? Is that public use? How does this differ from a shopping mall?

33

Syd Webb 02.22.05 at 12:19 pm

Syd, I think you’re confusing US city government with the British (and possibly Australian? IDK) system, which tends to be — gross generalization — more representative and more responsive, but also more politicized.

The US used to be the same way, but gross civic corruption in the late 19th and early 20th century produced a couple of waves of reform. These pushed many US municipalities towards city managers, appointed city boards, and other systems giving less (it was hoped) room for graft and cronyism. Very very very broadly speaking, municipal government in the US tends to be more professional and technocratic, less democratic and responsive, than elsewhere in the Anglosphere. This is especially so in smaller cities and suburbs.

Bizarre. This is yet another example of the American distrust of democracy, to retreat from it rather than reforming it when encountering problems. No wonder you still have an electoral college, and no national electoral commission, after all these years. When finding tendency, when encountring difficulties, to retreat from democract

: And if there isn’t a majority of townsfolk to stop the ee-vul councillors,
: why enrich lawyers by fighting a court case?

I’m not sure I like you doing the ingenue thing, Syd. “If there isn’t a majority of townsfolk to stop the town from passing the curfew for the darkies, then why enrich lawyers?”

Again, it just seems like US lawyer overuse syndrome – to resort to lawyers for something as simple as a political problem. As always, it’s another country and we should respect the fact they do things differently their.

The fact that voters don’t much object to something, doesn’t mean that something is constitutional and wise.

I’m with Belle here… the Court has the power to define public use, and IMO this ain’t it.

/What/ isn’t public use? You must have compulsory acquisitions to build roads? What if the road is build by a private corporation and they get to charge tolls? Is that public use? How does this differ from a shopping mall?

34

grannyinsanity 02.22.05 at 1:46 pm

This is not the first time:

http://www.saveourfarm.com/

When governments believe they can move people to service bigger money, it is only a matter of time until they start marching the disenfranchised into the ocean or something.

35

Lycan 02.22.05 at 7:29 pm

All this has already happened in Richfield, Minnesota for new Best Buy Corp HQ.

Richfield used to be a collection of working class single-family 50-yr old homes. The City condemned homes, businesses and auto dealerships, provided ‘just’ compensation and then gave the land to Best Buy for the spanking new HQ building. Much higher tax base.

http://www.goodjobsfirst.org/pdf/sw1.pdf

36

C.J.Colucci 02.22.05 at 7:54 pm

There’s obviously a great deal of abuse in the eminent domain process, and a lot of projects don’t smell much like “public uses,” but there’s a real problem with this lawsuit.
The Supremes aren’t going to set every trial court in the land loose to decide for itself whether every development project using eminent domain is a good idea. That would be an unadministrable judicial nightmare. That leaves 2 possible rules that judges could actually work with: (1) “public use” means “use by the public,” e.g., a firehouse or City Hall or (2) “public use” means anything that might, with some modest degree of plausibility, be considered “useful” to the public. The second alternative is pretty much the law now. It permits considerable stupidity and abuse, but it allows genuinely beneficial projects through and is a rule courts can actually follow. Courts could actually follow the first rule, too, and it would prevent much supidity and abuse, but only at the cost of throwing out the baby with the bathwater. Predicition? Things will stay much as they are.

37

David Sucher 02.23.05 at 1:59 am

John Quiggin: Unless I completely misunderstand your hypo, your example is not parallel as the transaction you propose is in all aspects voluntary. Of course a seller can create restrictions on future buyers — so long as those buyers accept them. Here we have sale compelled by government, not voluntary agreement to sell.

In general: Eminent domain to transfer property from one owner to another private owner is simply not needed as a tool of urban redevelopment. We don’t allow it in Washington State and we are doing fine. It’s a cheap shortcut.

38

phil 02.23.05 at 4:29 am

I agree that it is obvious, but I disagree that the Supreme Court will find it similarly obvious. I’m afraid Kelo will end up coming out the way Eldred v. Ashcroft did, with a lopsided and poorly reasoned 7-2 (or 6-2) result.

39

Bill Katz 02.23.05 at 5:26 am

The right of eminent domain has been abused for decades. There is, however, understanderable use for this concept when major public projects are needed in order to improve a locality. However, the misuse of this draconian measure, the confiscation of a person’s property for less than public gain, is well documented. I know. This confiscation happened to my family in the 1960’s in Hartford. Hartford Redevelopment proceeded to confiscate land under this status, the reasoning was to provide additional needed land to insure Underwood Typewriter Corporation’s expansion. State Supreme Court ruled in favor of Hartford. My father remained obstinate and as a result my family was forced to move by sheriff writ 2 weeks before Christmas in the dead of winter. Surfice to say, the Underwood Typewriter Co. moved during that period. Most of the land today, more than three decades later, remains fallow. At least some of the new ownership of this land fell into the hands of well known families of politicians. I would say this was dammed abuse of eminant domain. No freedom from tyranny here. What ever the motivations of the property owners of New London, be it holding out for increased compensation or not, they have a right to keep their land. Period. There is an old English tradition. Something that states the principle about a man’s home still being his castle.

40

John Thacker 02.23.05 at 6:09 am

Even city manager run cities can have citizens’ revolts. That happened in Durham, NC after the city and county governments decided to issue “bond-like objects” that weren’t quite bonds in order to pay for a minor league baseball stadium, after a bond referendum had been defeated in a vote. People voted the wrong way, let’s ignore it.

Of course, they did this after the filing deadline, and there were only two Republicans to oppose the five incumbent Democrats on the County Commission. Still, we got two new Commissioners for a while.

The odd thing about North Carolina and many of the Sunbelt states is that often the Republicans oppose these bond giveaways to corporations more than the Democrats. That’s because the Democrats tend to be moderate/conservative types who work hand in glove with corporations and have been running the state government for years. The Republicans tend to favor lower overall tax rates and corporate tax rates, but no special payouts, whereas the Democrats tend to favor special money designed to attract certain companies.

41

Fifth 02.23.05 at 7:53 am

It is imperative that the Court change the direction of the use of eminent domain. What is happening in Kelo and in multiple other cases across the country is the anthesis of Midkiff. In Midkiff, the Justices approved the use of eminent domain to place the land into the hands of many due to Hawaiii’s housing crisis. Presumably the public benefitted from that. But from Midkiff has grown Kelo and other cases where government takes from the little person without resources to give to large businesses who could pay fair maket value or place their facilities elsewhere. If any purported economic benefit is to be received, it is a trickle down theory, especially with deals such as $1 a year lease. If the government can take private property for any use, then what is the meaning of the limitation of public use? Passing the property to private entities through redevelopment agencies does not mean that private entities do not contol the land. So shall we be intellectually honest and agree that all land in this country does apparently belong to the “king” and we lease it until the “king” decides that it has a better use for it? They don’t call it eminent domain for nothing. The Founders must be turning over in their graves! What they anticipated as a public use was roads and schools and things like the railway. Everyone benefitted from that. They did not anticipate that Pfizer and Costco would be the receipient of public largess and the destruction of private property.
The brief does give a way of measuring the validity of the use. I do not find that the petitioners are anti-government but that they are for private property rights. They try to point out the obvious- that private businesses are the ones who benefit from these types of cases.
What is amazing to me is that the same corporations that decry government “interference” in their business because of taxation and regulations, have no problem using those laws for their own benefit. These corporations want a lassiez faire relationship with government until they blackmail some desperate city and then try to get everything they can out of those taxpayers. What I would like to see is what their position would be if Costco wanted to condemn Pfizer. It is really a matter of who has the political clout, under the standard outlined by the Conneticut court and not one of which the public sees any actual benefit.
The Michigan court is on the right track by overruling Poletown. Hathcock is a step in the right direction. But it does not go far enough. The states have zoning powers and can use that to remove blight. They can enforce their public health rules. If too few people own land, that is sad but it is not really the government’s place to take it away and give it to others.
This Court should have the fortitude to stand up to these local politicians and say: Enough already. There is NO public use for things that are not to be used by everyone. To the businesses they should say, negotiate a buyout of the properties and it people do not want to sell their homes at any price, learn to live with it. Grow up! You are NOT more important than your neighbor because you have more money, can buy up these small town politicians and can dangle your wares in front of several of these small towns. Pick a town and make your deals, if you can’t too bad. As Trump says, its not personal- it’s just business. in fact, I think TRump once had to build around a small business that would not sell. If he can do it, so can the rest of these businesses.

42

Fifth 02.23.05 at 7:54 am

It is imperative that the Court change the direction of the use of eminent domain. What is happening in Kelo and in multiple other cases across the country is the anthesis of Midkiff. In Midkiff, the Justices approved the use of eminent domain to place the land into the hands of many due to Hawaiii’s housing crisis. Presumably the public benefitted from that. But from Midkiff has grown Kelo and other cases where government takes from the little person without resources to give to large businesses who could pay fair maket value or place their facilities elsewhere. If any purported economic benefit is to be received, it is a trickle down theory, especially with deals such as $1 a year lease. If the government can take private property for any use, then what is the meaning of the limitation of public use? Passing the property to private entities through redevelopment agencies does not mean that private entities do not contol the land. So shall we be intellectually honest and agree that all land in this country does apparently belong to the “king” and we lease it until the “king” decides that it has a better use for it? They don’t call it eminent domain for nothing. The Founders must be turning over in their graves! What they anticipated as a public use was roads and schools and things like the railway. Everyone benefitted from that. They did not anticipate that Pfizer and Costco would be the receipient of public largess and the destruction of private property.
The brief does give a way of measuring the validity of the use. I do not find that the petitioners are anti-government but that they are for private property rights. They try to point out the obvious- that private businesses are the ones who benefit from these types of cases.
What is amazing to me is that the same corporations that decry government “interference” in their business because of taxation and regulations, have no problem using those laws for their own benefit. These corporations want a lassiez faire relationship with government until they blackmail some desperate city and then try to get everything they can out of those taxpayers. What I would like to see is what their position would be if Costco wanted to condemn Pfizer. It is really a matter of who has the political clout, under the standard outlined by the Conneticut court and not one of which the public sees any actual benefit.
The Michigan court is on the right track by overruling Poletown. Hathcock is a step in the right direction. But it does not go far enough. The states have zoning powers and can use that to remove blight. They can enforce their public health rules. If too few people own land, that is sad but it is not really the government’s place to take it away and give it to others.
This Court should have the fortitude to stand up to these local politicians and say: Enough already. There is NO public use for things that are not to be used by everyone. To the businesses they should say, negotiate a buyout of the properties and it people do not want to sell their homes at any price, learn to live with it. Grow up! You are NOT more important than your neighbor because you have more money, can buy up these small town politicians and can dangle your wares in front of several of these small towns. Pick a town and make your deals, if you can’t too bad. As Trump says, its not personal- it’s just business. in fact, I think TRump once had to build around a small business that would not sell. If he can do it, so can the rest of these businesses.

43

Fifth 02.23.05 at 7:55 am

It is imperative that the Court change the direction of the use of eminent domain. What is happening in Kelo and in multiple other cases across the country is the anthesis of Midkiff. In Midkiff, the Justices approved the use of eminent domain to place the land into the hands of many due to Hawaiii’s housing crisis. Presumably the public benefitted from that. But from Midkiff has grown Kelo and other cases where government takes from the little person without resources to give to large businesses who could pay fair maket value or place their facilities elsewhere. If any purported economic benefit is to be received, it is a trickle down theory, especially with deals such as $1 a year lease. If the government can take private property for any use, then what is the meaning of the limitation of public use? Passing the property to private entities through redevelopment agencies does not mean that private entities do not contol the land. So shall we be intellectually honest and agree that all land in this country does apparently belong to the “king” and we lease it until the “king” decides that it has a better use for it? They don’t call it eminent domain for nothing. The Founders must be turning over in their graves! What they anticipated as a public use was roads and schools and things like the railway. Everyone benefitted from that. They did not anticipate that Pfizer and Costco would be the receipient of public largess and the destruction of private property.
The brief does give a way of measuring the validity of the use. I do not find that the petitioners are anti-government but that they are for private property rights. They try to point out the obvious- that private businesses are the ones who benefit from these types of cases.
What is amazing to me is that the same corporations that decry government “interference” in their business because of taxation and regulations, have no problem using those laws for their own benefit. These corporations want a lassiez faire relationship with government until they blackmail some desperate city and then try to get everything they can out of those taxpayers. What I would like to see is what their position would be if Costco wanted to condemn Pfizer. It is really a matter of who has the political clout, under the standard outlined by the Conneticut court and not one of which the public sees any actual benefit.
The Michigan court is on the right track by overruling Poletown. Hathcock is a step in the right direction. But it does not go far enough. The states have zoning powers and can use that to remove blight. They can enforce their public health rules. If too few people own land, that is sad but it is not really the government’s place to take it away and give it to others.
This Court should have the fortitude to stand up to these local politicians and say: Enough already. There is NO public use for things that are not to be used by everyone. To the businesses they should say, negotiate a buyout of the properties and it people do not want to sell their homes at any price, learn to live with it. Grow up! You are NOT more important than your neighbor because you have more money, can buy up these small town politicians and can dangle your wares in front of several of these small towns. Pick a town and make your deals, if you can’t too bad. As Trump says, its not personal- it’s just business. in fact, I think TRump once had to build around a small business that would not sell. If he can do it, so can the rest of these businesses.

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