40 States to Review eminent domain


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PCGS65
February 5, 2006, 10:21 PM
I know this topic is not new but, It's about time.


By ROBERT TANNER, AP National Writer
Sun Feb 5, 5:49 PM ET

http://news.yahoo.com/s/ap/20060205/ap_on_re_us/seizing_property;_ylt=Arsk8fw7YP509jR8BOV_T52s0NUE;_ylu=X3oDMTA3ODdxdHBhBHNlYwM5NjQ-


LONG BRANCH, N.J. - The city wants Anna DeFaria's home, and if she doesn't sell willingly, officials are going to take it from the 80-year-old retired pre-school teacher.

In place of her "tiny slip of a bungalow" — and two dozen other weathered, working-class beachfront homes — city officials want private developers to build upscale townhouses.

Is this the work of a cruel government? Or the best hope for resurrecting an ocean resort town that is finally showing signs of reviving after decades of hard times?

Echoes of the debate are happening across the country, after a U.S. Supreme Court decision brought new attention to governments' ability to seize property through the tool of eminent domain. Some 40 states are re-examining their laws — with action in Congress, too — after the court's unpopular ruling.

"We thought this was going to be our home forever," said DeFaria, sitting in a kitchen cozy with photos of children and grandchildren, quotes from the Bible and a game of Scrabble that she plays against herself. "Now they want to take it away. It's unfair, it's criminal, it's unconstitutional."

Not according to the Supreme Court. In a 5-4 ruling last June that was greeted with widespread criticism, the court found that New London, Conn., had the authority to take homes for a private development project.

The Constitution says governments cannot take private property for public use without "just compensation." Governments have traditionally used eminent domain to build public projects such as roads, reservoirs and parks. But for decades, the court has been expanding the definition of public use, allowing cities to employ eminent domain to eliminate blight.

The high court, in its ruling, also noted that states are free to ban that practice — and legislators around the country are thinking about whether they should do just that.

New Jersey state Sen. Diane Allen, with bipartisan support, is pushing for a two-year ban on all eminent domain actions and for a bipartisan study group to re-examine its use in New Jersey.

"Right now government, I think, is using eminent domain to take people's private properties and hand it over to another owner," said Allen, a Republican. "It's really putting a hole in the American dream. Ownership of private property plays such a large role in that dream."

After the court ruling, four states passed laws reining in eminent domain. Roughly another 40 are considering legislation. In Congress, the House voted to deny federal funds to any project that used eminent domain to benefit a private development, and a federal study aims to examine how widely it is used.

The Washington-based Institute for Justice, a libertarian advocacy group that worked for homeowners in the New London case and in Long Branch, argues that state laws should be changed so property can only be seized for public uses like a park or a school — not urban redevelopment that benefits private developers.

Redevelopment usually depends on defining an area as "blighted" or a "slum," though definitions are vague, said Bert Gall, an attorney with the institute. Criteria can include a building's age, lack of compliance with building codes, even the size of a yard.

Abuses are widespread, Gall said, claiming that over a five-year period ending in 2002, more than 10,000 properties were threatened by eminent domain.

Municipal leaders across the country are pushing back, arguing that it's false to claim eminent domain is widely abused and warning that an emotional backlash to the court ruling is putting at risk an important tool that has helped turn around neighborhoods including Baltimore's Inner Harbor and New York's Times Square.

Elected officials have difficult decisions to make, and often must balance a community's needs with a few individuals, said Don Borut, executive director of the National League of Cities.

The plight of homeowners is hard to ignore, he said. "But at the same time ... there are hundreds if not a couple of thousand faces of people you don't see, of people of all levels of income who as a result of the economic development will get jobs," he added.

In Long Branch, there's no doubt the city needed to do something — a comeback wasn't happening on its own, Mayor Adam Schneider said.

"Most people wouldn't walk down those streets anymore. The worst neighborhood in our city was along our oceanfront. And that's been reversed," he said. Since the redevelopment effort began in earnest in 2002 after a decade of planning, new shops and homeowners have moved in, and new sidewalks have been installed — along with a new boardwalk, parks and an ice-skating rink, he said.

"What you do is you've improved your city, you've gotten rid of decrepit housing, you've created jobs," Schneider said. "It's easy to play it out as the city is cruel and government is stealing your property. I'm used to it. ... But this has reversed the decline that's been going on in Long Branch for more than 50 years."

Already, people are coming to new shops along the central waterfront, where the old pier burned down back in 1987. Rows and rows of new, sand-colored condominiums shadow DeFaria's one-story home when the afternoon sun sinks low.

DeFaria said she was offered $325,000 for the home she and her late husband bought in 1960 for $6,400. Where could anyone buy a waterfront view on the Jersey coast for that amount of money now?

But it's not the money, she said: $1 million wouldn't convince her. "They're taking my home away — not my house. My home. My life."

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beerslurpy
February 5, 2006, 10:27 PM
Who was in the majority in Kelo? Rhetorical question by the way.

I guess property rights are another one of those individual rights that liberals file along with gun ownership and self defense. But sodomy and are abortion are clearly protected by the letter of the constitution.

So much for the rule of law.

PCGS65
February 5, 2006, 10:37 PM
Hey Beerslurpy a little sarcasim I assume?
I just hope the states/congress rule against eminent domain. They have to do whats right once in a while. You know even a blind squirrel can find a nut every now and then.;)

Jeff White
February 5, 2006, 10:40 PM
Elected officials have difficult decisions to make, and often must balance a community's needs with a few individuals, said Don Borut, executive director of the National League of Cities.

There is nothing to balance. Taking private property by force (the government is force don't let anyone kid you) and turning it over to another private owner to profit from goes against everything this cnountry stands for, no matter what the Supreme Court says.

If a private developer wants Anna DeFaria's home, then they can meet her price, no matter how much above market it is, or wait till she dies and deal with her heirs or not build the project there.

Why are we remaking old western movies these days, with people who own property in prime locations cast as the homesteaders, the developers as the big ranchers, and the government of all people as the hired gun the ranchers bring in to run the homesteaders off?

Jeff

Standing Wolf
February 5, 2006, 10:42 PM
I guess property rights are another one of those individual rights that liberals file along with gun ownership and self defense. But sodomy and are abortion are clearly protected by the letter of the constitution.

Property seems to be something leftist extremists believe should be taken from those who have and given to those who haven't. I don't see a great deal of difference between a pay check and a house.

PCGS65
February 5, 2006, 10:47 PM
+1 Jeff well put!!!
The gov(local in this case)wants to profit from buying Annas home then selling it to the developer. Then profit some more when they re-assess taxes after development. But we already know this.
WHAT A SHAM(E)!!!:cuss: :barf: :fire:

beerslurpy
February 5, 2006, 10:51 PM
Who was being sarcastic? Our government is stealing when it takes property from one person and gives it to another. That 5 supreme court justices dont perceive that as a violation of the plain text of the constitution signals to me that we have much work before us.

They did this several years after the Michigan Supreme Court saw the error of their ways and overturned the Poletown precedent. Without even touching the constitutional issue, we have decades of evidence showing that this is an entirely harmful legal principle to live by.

PCGS65
February 5, 2006, 10:56 PM
I'm talking about the sodomy and abortion part.

beerslurpy
February 5, 2006, 11:07 PM
I'm talking about the sodomy and abortion part.
My point was that it was silly to strictly enforce unenumerated rights while ignoring clearly enumerated protections and rights.

However, it isnt really so cut and dry. I think that one of the underlying principles of this country is the freedom to do whatever you want in the privacy of your own home, be it smoking marijuana, having gay sex or making machine guns. I definitely think that the founders would have wanted the government to stay out of people's business, so I am not averse to interpreting the 9th or the 4th amendment to grant a broad right to privacy. Maybe I'll have a different perspctive by the time I get nominated for the supreme court.

That being said, I think such issues pale in comparison to the supreme court disregarding the things the founding fathers did bother to write down.

Firethorn
February 5, 2006, 11:33 PM
40 states. Enough for a constitutional amendment, isn't it. :scrutiny:

When you think about it, I think that cities have a point about taking care of slums/blighted lands. But it's an entirely different point when you start talking about homes that can't be legally condemned by an inspector mearly peering in the door. I understand that in many of those cases that the city was able to bribe the owners of the property into selling legitamitly. In other cases you had properties where the owners couldn't be found or there were violations like failure to pay property taxes where they took the property that way.

Apartment owners can complain when the owner sells and the new owner shuts the place down, but that's part of the bargain when you rent and don't own.

But forcably buying somebody's home which the resident owns and is up to date on property taxes and everything is an entirely different affair.

It's a dangerous affair when the city can declare middle class housing, even lower middle class as 'blight'. (Part of my definition of 'poor' is unable to afford to buy their own home).

LawDog
February 5, 2006, 11:56 PM
Does anyone know who the 40 are? More to the point, does anyone know which 10 states aren't looking into fixing this?

LawDog

Hawkmoon
February 5, 2006, 11:56 PM
+1 Jeff well put!!!
The gov(local in this case)wants to profit from buying Annas home then selling it to the developer. Then profit some more when they re-assess taxes after development. But we already know this.
WHAT A SHAME!!!:cuss: :barf: :fire:
You misspelled S-H-A-M

PCGS65
February 6, 2006, 12:24 AM
Hawkmoon, your right! I was actually going to do this SHAM(E)!! You know I think I will. Thanks ;)

PCGS65
February 6, 2006, 12:27 AM
Does anyone know who the 40 are? More to the point, does anyone know which 10 states aren't looking into fixing this?

LawDog
Not sure about the 40 but I'll bet Illinois is one of the 10!!:mad:

Maxwell
February 6, 2006, 12:49 AM
This is what happens when judicial precedence and vague laws are allowed to supercede the constitution.

Amendment 5 says that property can only be taken for public use, after proper compensation. Taking from one man to sell it to another is not using it, its a communist style reallocation of wealth.
"They need it and you dont, sorry".

Who decides that?
Some random guy whos just been self-annointed the master of all stuff?

My property does not belong to the government. My house, my car, and my weapons are not on loan from the state, waiting to be recalled. This stuff is mine until I decide to part with it of my own free will.

The government shouldnt be buying my property for itself unless it needs that space, and it shouldnt be acting as a broker for some company that does not want to offer me what my land is worth.
If you want someones property and you cant meet their asking price, too bad. Find someplace else to build.

cuervo
February 6, 2006, 01:09 AM
The New London Development Commission has backed down (for now?) on evicting the remaining residents:
http://www.ij.org/private_property/connecticut/9_16_05pr.html

Opinions:
Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a concurring opinion. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined. Thomas, J., filed a dissenting opinion.

The court basically stated that the city had met the requirements of the state's laws on eminent domain. Even though some view this as the court's way of saying that all property belongs to the state, others view it as the court saying it is up to the individual states to create and enforce their own laws on eminent domain.

Crosshair
February 6, 2006, 01:28 AM
Hmmm, I can see some old person who is getting screwed just burry 1000 gallons of fuel oil and pesticide on their land. "There ya go you *******. You can have the land now." What are you going to do, put an 80 year old lady in prison for poluting their own land?

PCGS65
February 6, 2006, 01:33 AM
Hmmm, I can see some old person who is getting screwed just burry 1000 gallons of fuel oil and pesticide on their land. "There ya go you *******. You can have the land now." What are you going to do, put an 80 year old lady in prison for poluting their own land?
Good idea, but I'll bet they will take the money they paid you for the house to clean up. Then have city/county employees on O.T. cleaning up untill the bill exceeds the money they gave you then garnish your pension or S.S. check. Either way BIG GOV WILL WIN. But still a good idea.:neener:

Jeff White
February 6, 2006, 03:05 AM
PCGS65 said;
Not sure about the 40 but I'll bet Illinois is one of the 10!!

Actually, the Illinois State Supreme Court made a ruling a couple of years ago that for all intents and purposes ended the use of eminent domain to transfer property to a private developer. It was in a case involving Mid-America Raceway and some property one of those public/private development groups wanted to condemn using eminent domain to expand the parking for the race track.

Believe it or not, Illlinois residents are ahead of the power curve on this issue.

Jeff

PCGS65
February 6, 2006, 04:27 AM
Jeff Thanks for the info. I'm waiting to see eminent domain eliminated period. It would have to be, unless the land was confiscated by the government and remained government property. Roads, schools, parks ect. Not malls, banks, subdivisions, golf courses ect.

horge
February 6, 2006, 05:00 AM
Real Estate
Ponder the etymology of the term.
:barf: :barf: :barf:



And oy, but we have that eminent domain BS over here too.

dm1333
February 6, 2006, 11:35 AM
But Long Branch was not that bad. My guess is that the urban renewal going on there is more for people from other areas who visit and not the locals. Bayonne N.J. had some serious blight going on though maybe they should all move there!

Al Norris
February 6, 2006, 12:02 PM
Sorry folks. But none of us really own our land. Do a search on the term "Fee Simple" to understand. :cuss:

hugh damright
February 6, 2006, 04:12 PM
40 states. Enough for a constitutional amendment, isn't it.
I think that's right ... if the Constitution says "x", and the SCOTUS interprets that to mean "y", then I think the way you play the game is to amend the Constitution to clarify that "x" shall not be construed to mean "y". Of course, we don't want a zillion amendments, but I think we are wanting for a few.


I think that one of the underlying principles of this country is the freedom to ... be ... having gay sex.
I could not disagree more.

BigFatKen
February 6, 2006, 04:23 PM
A big ho-hum here in Alabama. Sorry for the rest of you however. Our State house went into special session last summer and closed these to just "public use", as per the constitution.

Judge Andrew Napoliano addresses this in his book. The first case started in NY in the '30s for "slum clearance".

BigFatKen
February 6, 2006, 04:45 PM
fee simple
n. absolute title to land, free of any other claims against the title, which one can sell or pass to another by will or inheritance. This is a redundant form of "fee," but is used to show the fee (absolute title) is not a "conditional fee," or "determinable fee," or "fee tail." Like "fee" it is often used in deeds transferring title, as in "Harry Hadit grants to Robert Gotit title in fee simple…" or similar words.
online meaning.............little help

CatsDieNow
February 6, 2006, 07:33 PM
There's always ways to get around the restrictions.

Here in DFW, one of cities did a land grab for a shopping mall, and to get around the "public use" problem they simply put a public road through the middle of the property.

To get ranches, they simply incorported them into the city and tax them into selling.

carpettbaggerr
February 7, 2006, 03:55 PM
My property does not belong to the government. My house, my car, and my weapons are not on loan from the state, waiting to be recalled. This stuff is mine until I decide to part with it of my own free will. If you don't pay your property taxes, what do you think will happen?

The State owns your property, and if you don't pay your rent, you will be forcibly evicted. If you resist, you will certainly be imprisoned, and possibly be killed.

The land of the Free, indeed.

publius
February 7, 2006, 05:27 PM
When you think about it, I think that cities have a point about taking care of slums/blighted lands. But it's an entirely different point when you start talking about homes that can't be legally condemned by an inspector mearly peering in the door. I understand that in many of those cases that the city was able to bribe the owners of the property into selling legitamitly. In other cases you had properties where the owners couldn't be found or there were violations like failure to pay property taxes where they took the property that way.

That bridge was crossed in 1954, IIRC. The majority opinion in Kelo relied upon the precedent set when an established store, in good condition and profitable, was seized under eminent domain because it was in a slum, and redeveloping the entire slum was the "public use" served by the government action. The increase in value and employment which will result from a planned economy serve the public use every bit as much as a public road, for example, or so the story goes. Read it for yourself (http://straylight.law.cornell.edu/supct/html/04-108.ZO.html), if you are not already too nauseated.

publius
February 7, 2006, 05:36 PM
Sorry folks. But none of us really own our land. Do a search on the term "Fee Simple" to understand. :cuss:


And oy, but we have that eminent domain BS over here too.

Al, I can call the Sheriff to kick people out of here. The State will protect my title to my land. It sure seems like I own it in a lot of ways...

I have the same question for you and for horge: can you think of a better system? Everyone wants roads, and we want some government buildings and things for public use. Sometimes, in order to have a functional government infrastructure, eminent domain will be necessary, IMHO. I just wish this (http://straylight.law.cornell.edu/supct/html/04-108.ZD1.html) had been the majority opinion in Kelo.

Kodiaz
February 7, 2006, 05:41 PM
Well after 70 odd years of abusing the 2nd amendment. They've started to infringe on the rest of our rights. Maybe they should call it the Bill of privileges and make it official. I'm not saying this is a Republican thing, the Dems. would be no better. This is a govt. problem, it is too big now and is hungry for more and more power.

vynx
February 7, 2006, 05:50 PM
NO one ever owns the land - if you think you do try burying waste or digging a tunnel to China - or diggin up your lot and selling the dirt - not allowed.

What you do own is more valuable it is "A bundle of rights" to a certain area. It does not extend down to the center of the earth or outward to the moon.

Often it does not include "mining" rights or "water" rights or "mineral -oil" rights

A "bundle of rights" is the only correct answer. If I learned one thing as a Real Estate Major in college it was that - there is no other answer allowed.

What these rights consist of is the issue at stake here. The federal eminent domain issue will say you do NOT have the right to unlimited use and sole decision making about your occupation right to your "land" (land is not a good word to use think GPS positions).

I think the bundle of rights should begin with right to Life, Liberty and Pursuit of Happiness which the federal eminent domain ruling seems to invalidate.

PCGS65
February 10, 2006, 12:51 PM
Well after 70 odd years of abusing the 2nd amendment. They've started to infringe on the rest of our rights. Maybe they should call it the Bill of privileges and make it official. I'm not saying this is a Republican thing, the Dems. would be no better. This is a govt. problem, it is too big now and is hungry for more and more power.
+1 well put Kodiaz. It's like cancer.

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