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March 11, 2005

Kelo v. City of New London

Bruce Ratner and his rag tag group of real estate cronies (Marty, yes you) may be in for a precedent that will not bode well for their Brooklyn stadium bid. Either adding fuel, or releasing steam from fight against Ratner's Atlantic Yards. A US Supreme Court decision is due on Kelo v City of New London in late June. Let the 5th amendment interpretation gymnastics begin...

Slate gives a play by play of the oral arguements made before the court on Feb 22... "It doesn't look like the good folks of Fort Trumbull will garner many votes today at all—save for that of Justice Scalia, who channels the many libertarian amici in this case when he repeats that you can constitutionally condemn land and give it to a private entity—a railroad or public utility. "But you can't give it to a private corporation just because it might increase taxes."

The Boston Globe published a searing defense of the little guy where he quotes an earlier Supreme Court decision... ‘‘The despotic power ..... of taking private property when state necessity requires, exists in every government,’’ Justice William Paterson wrote in a 1795 case, Vanhorn’s Lessee v. Dorrance, but the state must not invoke that power ‘‘except in urgent cases.’’ He could not imagine any situation that would justify ‘‘the seizing of landed property belonging to one citizen, and giving it to another citizen. ..... Where is the security, where the inviolability of property, if the legislature ..... can take land from one citizen, who acquired it legally, and vest it in another?’’

The Seattle Times also published an editorial defending the interests of individuals against the desires of developers... "Since the landmark 1981 casePoletown Neighborhood Council v. City of Detroit, in which the Michigan Supreme Court ruled Detroit could condemn an entire community in the interest of giving its land to a new General Motors plant, abuse has been rampant. (The Michigan court has since reversed its decision, but the damage was done.) By one analysis, eminent domain was used more than 10,000 times between 1998 and 2002 to transfer title from one private owner to another."

While USA Today published an opinion by APA executive director, Paul Farmer in support of the developer's right to eminent domain..."Using condemnation only when a government entity will own the property — for example, for a highway or jail or to remove blight — unduly restricts a community's ability to manage growth and change." Ummm, BULLSHIT. Additionally, the APA published their take on Kelo v. City of New London.

Legal Affairs hosted an interesting debate on the Kelo case, where in a flash of libertarian angst I happen to agree with Prof Epstein when he states... "I know you may not agree, but if building up the tax base counts as a "public use," then no one's home is safe. After all, the local government only has to project higher revenues from the newer use, without having to substantiate the claim. Although New London's brief tries to gloss over the massive deficiencies of this ill-conceived plan, it's worth noting that this redevelopment project has thus far consumed $73 million in Connecticut money to perform feasibility studies, do environment cleanup, and install infrastructure. But New London still hasn't found any viable projects to put on the nearly 90 acres of prime property it already owns. Why it feels driven to take about 1.54 acres owned by Ms. Kelo and her neighbors is anybody's guess."

David Sucher, of City Comforts, notes... "In my opinion, justice demands the "public use" provision of eminent domain be clarified to exclude purely private gain." while he hi-lites some amicus briefs by famous urban thinkers, here, linking Jane Jacobs', and here, John Norquist... "But, taxpayers are now being asked to underwrite the risks of real estate-related economic development ... for speculative acquisition of real estate. This has resulted from the recently acquired taste for expediency among certain members of the private development community who hunger for government to speed up the development process and/or cut existing landowners off from the economic potential of their land ... Lured by proffered visions of tax base enhancement and upscale amenities, some local officials are supporting this sort of "corporate welfare," and it not only raises serious Fifth Amendment questions, but skews the evaluation of projects and their long range community impacts."

A resident of CT posts on Crooked Timber that... "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...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)."

Posted by jmarston at March 11, 2005 01:29 PM

Comments

Posted by: r b at March 14, 2005 01:36 PM

Posted by: John Ryskamp at June 14, 2005 03:29 PM