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40 States to Review eminent domain

Discussion in 'Legal' started by PCGS65, Feb 5, 2006.

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  1. PCGS65

    PCGS65 Member

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    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...OV_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."
     
  2. beerslurpy

    beerslurpy member

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    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.
     
  3. PCGS65

    PCGS65 Member

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    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.;)
     
  4. Jeff White

    Jeff White Moderator Staff Member

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    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
     
  5. Standing Wolf

    Standing Wolf Member in memoriam

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    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.
     
  6. PCGS65

    PCGS65 Member

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    +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:
     
    Last edited: Feb 5, 2006
  7. beerslurpy

    beerslurpy member

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    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.
     
  8. PCGS65

    PCGS65 Member

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    I'm talking about the sodomy and abortion part.
     
  9. beerslurpy

    beerslurpy member

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    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.
     
  10. Firethorn

    Firethorn Member

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    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).
     
  11. LawDog

    LawDog Moderator Emeritus cum Laude

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    Does anyone know who the 40 are? More to the point, does anyone know which 10 states aren't looking into fixing this?

    LawDog
     
  12. Hawkmoon

    Hawkmoon Member

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    You misspelled S-H-A-M
     
  13. PCGS65

    PCGS65 Member

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    Hawkmoon, your right! I was actually going to do this SHAM(E)!! You know I think I will. Thanks ;)
     
  14. PCGS65

    PCGS65 Member

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

    Maxwell Member

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    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.
     
  16. cuervo

    cuervo Member

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    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.
     
  17. Crosshair

    Crosshair Member

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    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?
     
  18. PCGS65

    PCGS65 Member

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    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:
     
  19. Jeff White

    Jeff White Moderator Staff Member

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    PCGS65 said;
    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
     
  20. PCGS65

    PCGS65 Member

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    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.
     
  21. horge

    horge Member

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    Ponder the etymology of the term.
    :barf: :barf: :barf:



    And oy, but we have that eminent domain BS over here too.
     
  22. dm1333

    dm1333 Member

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    Maybe it has changed for the worse since I lived there

    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!
     
  23. Al Norris

    Al Norris Member

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    Sorry folks. But none of us really own our land. Do a search on the term "Fee Simple" to understand. :cuss:
     
  24. hugh damright

    hugh damright Member

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    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 could not disagree more.
     
  25. BigFatKen

    BigFatKen Member

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    ho-hum

    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".
     
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