Eminent Domain Case In CT


September 29, 2004, 10:41 AM
Here's a story a buddy of mine forwarded to me:


By Joan Biskupic, USA TODAY

The Supreme Court said Tuesday that it will decide whether cities can seize a person's property and transfer it to private developers whose projects could boost an ailing local economy.

The appeal from seven property owners in New London, Conn., who are trying to keep their homes in the face of an economic revitalization effort along the Thames River, was one of eight cases the court added for the annual term that begins Monday. The justices have 49 cases scheduled for arguments and will add about 30 more as the term unfolds over the next nine months.

The New London dispute touches on a controversial issue that has been simmering in several states, as local governments have sought new sources of tax revenue. Traditionally, governments have used their eminent-domain powers to condemn - and then improve - blighted areas. But governments increasingly have sought to take property that is not in a slum, but that nonetheless could be used in a private redevelopment plan.

The eminent-domain power flows from the Constitution's Fifth Amendment, which allows government to take private property for "public use" and requires "just compensation." The new case focuses on the breadth of the "public use" phrase, and whether a condemnation violates property rights when it is not to eliminate blight and instead is for economic development.

Larry Morandi, environmental program director for the National Conference of State Legislatures, says that "tough economic times and (efforts) to make urban areas more vital" have led local governments to broadly interpret their "public use" power - and spurred new complaints from property rights advocates. He says that about a dozen state legislatures have considered proposals to limit local authorities from using eminent domain for private development.

As a result, Kelo vs. City of New London could be among the closest-watched cases of the Supreme Court's 2004-05 term.

The Connecticut Supreme Court ruled that New London had a valid public use to justify eminent domain, based on the thousands of jobs and significant revenue that officials project would be generated by the redevelopment on a 90-acre parcel. New London's plan would include a waterfront hotel and conference center, office space and 80 residential properties. It is intended to take advantage of a decision by pharmaceutical giant Pfizer to build a research facility nearby.

Lawyer Wesley Horton, who represents New London and the New London Development Corp., says the city's decision to try to clear the land for redevelopment stemmed from its "dire economic straits" and "concern for the economic welfare of New London."

In their appeal, the homeowners say they "seek to stop the use of eminent domain to take away their most sacred and important of possessions: their homes."

Together, the seven holdout property owners possess 15 parcels. Their neighborhood originally had about 115 parcels, a mix of homes and small businesses.

Scott Bullock, of the Washington-based Institute for Justice, which represents the owners, says that if the justices adopt the Connecticut court's reasoning, any home or small business could be condemned and replaced by a project that produces more tax revenue.

Separately Tuesday, the court said it will decide:

• Whether the Americans with Disabilities Act forbids foreign cruise ships that operate in U.S. waters from discriminating against people in wheelchairs by, for example, charging them higher fares and limiting their services. The ADA protects disabled people against bias in public accommodations and transportation services; a U.S. appeals court ruled that the law could not be used against foreign cruise lines. The case is Spector vs. Norwegian Cruise Line.

• Whether the free-speech rights of a disgruntled former client of Los Angeles lawyer Johnnie Cochran were violated when a judge ordered the client to stop picketing in front of Cochran's office and to stop any criticism of Cochran in public. The case is Tory vs. Cochran.

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September 29, 2004, 04:02 PM
That case may have retroactive implications, as well.

Several years ago the city of West Haven, CT, used eminent domain to take possession of and demolish a number of apartment houses and a nursing home just off I-95, all in the name of "economic development." The city apparently didn't have any real purpose in mind for the land, other than a vague hope of attracting some developer(s) to build something more up-scale and revenue-producing than a bunch of low- and moderate-income apartments.

The city also played fast and loose with the "just compensation" part of eminent domain law, by driving down the market value of the properties over a period of years by failing to maintain the streets, not picking up the garbage, and generally making it known that they were after the land so that any prospective buyers would be scared away.

So the city of West Haven got the land, the owners got screwed. And the last time I drove up that stretch of I-95 through CT the land was still vacant.

Standing Wolf
September 29, 2004, 06:27 PM
Government always grants itself royal prerogatives.

September 29, 2004, 07:02 PM
A Michigan Supreme Court case has been the basis of many eminent domain cases in other states. That case has recently been overturned.

Michigan Supreme Court rules: Economic development is not eminent domain
by Blair Hawkins Monday, Aug 2 2004, 10:17pm
united states / civil & human rights : legal / justice / news report

The Court decisively rejected the notion that "a private entity's pursuit of profit was a 'public use' for constitutional takings purposes simply because one entity's profit maximization contributed to the health of the general economy."... story by John Kramer

Landmark Eminent Domain Abuse Decision

Michigan Supreme Court
Halts Eminent Domain
For "Economic Development"

Court States Poletown Was "Erroneous"

Washington, D.C.- In a case with nationwide implications to halt the abuse of eminent domain, the Michigan Supreme Court last night reversed its infamous Poletown decision, which had allowed the condemnation of private property for so-called "economic development." In a unanimous decision in County of Wayne v. Hathcock, issued at 9:30 p.m. on Friday, July 30, the Court decisively rejected the notion that "a private entity's pursuit of profit was a 'public use' for constitutional takings purposes simply because one entity's profit maximization contributed to the health of the general economy."

In the 1981 Poletown decision, the Michigan Supreme Court allowed the City of Detroit to bulldoze an entire neighborhood, complete with more than 1,000 residences, 600 businesses, and numerous churches, in order to give the property to General Motors for an auto plant. That case set the precedent, both in Michigan and across the country, for widespread abuse of the power of eminent domain. It sent the signal that courts would not interfere, no matter how private the purpose of the taking.

But in Hathcock, the Court called Poletown a "radical departure from fundamental constitutional principles." "We overrule Poletown," the Court wrote, "in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law."

According to Dana Berliner, an attorney with the Institute for Justice, which filed a brief in the Hathcock case, the case has profound nationwide implications. "Poletown was the first major case allowing condemnation of areas in the name of jobs and taxes. It is cited in every property textbook in the country. The Court literally rewrote the book with this decision," said Berliner.

The use of eminent domain for private development has become increasingly common throughout the United States. According to Public Power, Private Gain, authored by Berliner, there were 10,000 properties either taken or threatened with eminent domain for private parties in the U.S. between 1998 and 2002. And state supreme courts from Nevada to Connecticut have relied on the Poletown decision when upholding the condemnation of land for private parties.

"The Court made an exception in Poletown because of the supposedly enormous benefits of the GM plant," said Berliner. "Instead, the exception swallowed the rule."

The application of Poletown in Michigan produced disastrous results. Michigan courts tended to forbid small condemnations for private parties, but when the city and developer claimed the project would have a significant economic impact, lower courts upheld the takings.

"Poletown gave cities and developers an incentive to make outrageous, wildly inflated predictions of the impact of the project," explained Scott Bullock, senior attorney at the Institute for Justice. "It was the worst possible incentive. The Poletown project itself also didn't come close to living up to the promises. In all likelihood, it destroyed more jobs than it created."

The Michigan Supreme Court also decided another important eminent domain case, although one that has received less attention. In Detroit Wayne County Stadium Authority v. Alibri, the Stadium Authority told Frida Alibri it would condemn her property if she didn't sell "voluntarily." It promised, among other things, that it would not be given to a private party. After the sale, it was indeed transferred to a private corporation. At that point, Alibri sought to get her property back, because the Stadium Authority didn't have the power to condemn for that purpose, and it had told her that the purpose was not transfer to a private party. The trial court agreed with Alibri; the appellate court, however, agreed with the Stadium Authority. The Michigan Supreme Court returned the property to its rightful owner-Mrs. Alibri.

"Most people end up selling under threat of eminent domain, rather than spend years in court fighting it, so these two decisions truly prevent the government from taking property for private parties," according to Berliner. "The government can't convince people to sell by telling them their property will be used for a public use, then turn around and transfer it to a private party."

"The Poletown decision gave cities the green light to take property for private parties," said Chip Mellor, president and general counsel of the Institute for Justice. "It was a terrible mistake. Now, the Michigan Supreme Court has restored the rights of all Michiganders to keep their homes and businesses, even if another, politically connected private business wants them. This is a great day for property rights nationwide."

The Institute for Justice and the Mackinac Center for Public Policy filed a friend of the court brief in the Hathcock case, co-authored by George Mason Law School professor Ilya Somin and IJ Senior Attorney Dana Berliner, discussing the disastrous effects of the Poletown decision in Michigan and the country, as well as the failure of the Poletown
project to live up to its promises. The Institute for Justice also filed a friend
of the court brief in the Alibri case.

The Hathcock decision is available at:

John Kramer, JKramer@ij.org
The Institute for Justice: http://ij.org/
source: http://cvilleindymedia.org/newswire.php?story_id=715

Chris Rhines
September 29, 2004, 09:05 PM
Eminent domain is theft, plain and simple. Prettying it up with moral relativism and postmodern linguistic deconstruction does not change matters - when you take something that you have no right to, you commit theft.

The government should be forbidden from excercising eminent domain under any circumstances, for any reason.

- Chris

September 29, 2004, 11:06 PM
The Michigan decision that reversed the Poletown case is a big deal in eminent domain circles, because the Poletown case was always cited by the government as a precedent allowing takings for predominantly economic reasons. But the US Supreme Court's decision to accept review in Kelo is an even bigger thing. Simply put, the issue is this: Can the government legally take the property of Peter, a private party, for the sole purpose of giving it to Paul, another private party, because Paul plans to use the property "more productively" (meaning more jobs and an enhanced tax base)?

The unusual characteristic of the Kelo case is that the government (actually it was a private development group that brought the condemnation, but that's another issue) made no claim that the property was "blighted," which is a common justification for the government to transfer property from Peter to Paul. Here, the issue is squarely and narrowly economic, and it raises some critical issues about what private property really means (or doesn't mean) in this country.

I was asked to, and did, spend two days working on an amicus request to the US Supreme Court in the Kelo case, but, alas, we were not able to submit it for reasons that were beyond my control. Sigh... Anyway, you never know, because sometimes the US Supreme Court decides to sidestep the main issue and it bases its decision on some technical ground, but the Kelo case could prove to be one of the more interesting decisions in years.

Finally, in my gut, I suspect that the decision in Kelo (which involves the constitutional question of whether the taking is for a "public use") would also foreshadow the Court's decision in a squarely-presented Second Amendment case. Could be wrong, but I listen to my gut.

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