Posted on 12/19/2004 4:10:14 AM PST by Excuse_My_Bellicosity
There are dark clouds on the horizon for cities, which for decades have used eminent domain or its threat as a tool to replace run-down neighborhoods with tax-generating, job-creating businesses.
Not only are courts across the nation beginning to side with private-property rights' advocates, the Utah Legislature is cracking open the door to have a look. This is at the behest of educators and Gov. Olene Walker, who note the loss of revenue to schools from some redevelopment projects.
Cities also are paying attention to Kelo v. City of New London, a case scheduled for arguments before the U.S. Supreme Court on Feb. 22. The Institute for Justice, a Washington-based public interest law firm, is asking the court to rule that it is wrong for cities to take property from one owner to give to a developer.
Scott Bullock, a senior attorney for the institute, says another case decided last summer also has implications.
The Michigan Supreme Court overturned its 1981 Poletown ruling, which is a textbook case long used by cities and courts to allow eminent domain for commercial projects.
In the 1981 case, the court allowed General Motors to push 3,000 largely Polish immigrants out of their homes so it could expand its manufacturing plant. The new state Supreme Court said the decision was indefensible.
- Kristen Moulton Property owners' rights l Eminent domain is the right cities and other governments have to condemn private property so it can be put to public use. Cities and counties often consider economic-development projects valid reasons to condemn private property.
The strongest cases for such takings involve areas considered blighted. That means they have decaying buildings and inadequate streets, curbs, sidewalks and sewers. These projects are usually undertaken by city redevelopment agencies (RDAs).
l Property owners are given rights by Utah Code, but if they want to stop an RDA, they have to act quickly. Residents have 30 days after a "blight" designation to file a complaint in District Court - or they lose their right to question the blight.
Once a redevelopment area is before the RDA board, residents can block a planned redevelopment area by submitting written objections from 40 percent of the property owners. That forces a vote at the next election.
Written objections by 60 percent of the property owners can force the RDA to shelve the project for three years. In both cases, the objections have to be submitted before the board accepts the plan.
Rarely, however, do property owners organize early enough to contest a blight designation. More often, people begin objecting when the issue is how much money they will be compensated for their property, according to Craig Call, Utah's ombudsman for property rights.
l More information is available from the Office of the Property Rights Ombudsman, 877-882-4662 or at the office's Web site, http://www.utahpropertyrights.com.
- Kristen Moulton
OGDEN - Senorina Fernandez grew up with 11 siblings in this neighborhood that hugs the Union Pacific rail yard on the west side of downtown Ogden. She raised six children here.
So it's with no small measure of sadness that she realizes this could be her last Christmas in her modest, well-kept home in the long-neglected neighbor- hood.
Ogden City wants Fernandez, along with residents of 33 other homes and owners of eight businesses, to move out to make way for a Super Wal-Mart.
"It's not a palace. But it's my home. It's my home!" says Fernandez, a widow who keeps a big garden and lives on a Social Security check.
Fernandez and other home and business owners in the 21-acre island are not optimistic. But they say they will go down fighting City Hall.
"I'll be danged if I'm going to let it go," says Fernandez who, like nine other property owners, has an attorney and is waiting for the city to condemn her property so she can challenge the action. "It's not fair."
While some residents are thrilled with the city's plans to buy property they have been unable to sell, the holdouts say Ogden instead should help them fix the blight - substandard housing, streets with no curbs, gutters or sidewalks, abandoned cars.
"I don't think in America we should ever be forced to do this," says Hal LaFleur, who owns several of the area's private parcels, including the 4-year-old building that houses his son-in-law's welding business. "This is not for public use. This is for Wal-Mart."
Cities and other government agencies have been taking private property through eminent domain and the threat of it for decades. They consider business expansion a public good, particularly when they clean up run-down neighborhoods in the process.
A wave of court rulings nationally gives property-rights advocates hope that that era is ending.
But in the meantime, Ogden looks at the redevelopment project and Wal-Mart's proposed superstore as a godsend.
"A retail destination": Stuart Reid, the city's director of community and economic development - and the LDS Church bishop for members in the redevelopment area - told City Council members earlier this year it could lead to Ogden's renaissance.
It would clean up an unsightly, old neighborhood where houses are squeezed in with manufacturers at a major entrance to downtown, 21st Street. And it could also mean an estimated $700,000 more each year in sales-tax revenue.
"It would go a long way in re-establishing downtown as a retail destination," says Richard McConkie, Reid's assistant director.
Mayor Matthew Godfrey acknowledges some residents are being asked to make a sacrifice.
"The hardest part in all of this is the emotion," Godfrey says. "I don't like for the people to go through the trauma because of what we're doing. We feel bad they have to . . . go through something that's for the betterment of the community, but that's clearly the situation here."
The Ogden Wal-Mart redevelopment case has attracted the attention of a Washington, D.C.-based public interest law firm, which argues that eminent domain is unconstitutional when governments take property for private business.
The law firm - the Institute for Justice - will argue a major Connecticut case along those lines before the U.S. Supreme Court on Feb. 22.
"Wal-Mart should simply not be the recipient of land through eminent domain," says the institute's senior attorney, Scott Bullock. "It's bad business [and] it's wrong."
The institute is not involved in the Ogden fight, but is in contact with Dorothy Littrell, a North Ogden accountant. Littrell bought property in the Wal-Mart project area just so she could sue the city, on constitutional issues, in 2nd District Court.
"I am 76 and a great-grandmother, and I will not let my experience go to waste when I can fight this injustice," Littrell says.
Ogden City attorney Norm Ashton says the characterization of the city's action as "unconstitutional" is simply wishful thinking.
"That's their desire or hope, but that isn't the present state of the law."
City officials are still negotiating with the holdout residents and business owners, and Ashton said he is confident they will reach a settlement. But if not, he said, the city will use eminent domain.
Amy Butters, a Syracuse-based attorney, is working for free for property owners in the neighborhood, fueled in part by a wrenching childhood memory. Her grandfather was forced to sell his tailor shop on Washington Boulevard to make way for the Ogden City Mall in the early 1980s.
After the mall failed, the city bought the property, razed the buildings, and is slowly redeveloping the property.
"It's frustrating to me that cities think Wal-Mart is the economic answer to all their problems," says Butters.
If the city condemns her clients' properties and they go to court, she will argue, "You can clean up an area of the city without taking the property away and giving it to somebody else."
But Mayor Godfrey says that argument misses the point: The neighborhood is not supposed to be a neighborhood.
Zoning out: More than 50 years ago, the city zoned it for manufacturing. Officials assumed that the houses, already decades old by then, would eventually be replaced. That's also why the city has never invested in curbs, gutters, storm drains or sidewalks, Godfrey says.
The neighborhood clung on, though, and now it's an eyesore, Godfrey says, adding that "the revitalization of the urban center of the city is key."
Nonetheless, residents say if their neighborhood is blighted, it's the city's fault.
Fernandez and Donna Marti, who lives with her 80-year-old husband in the home where he was born, say the city has ignored calls seeking enforcement of lawn and abandoned-car ordinances.
She and her husband, Evo, have signed an option for the city to buy their home, which they have upgraded frequently through the years. But they are not happy about having to leave.
It rankles Marti that her LDS bishop is one of the city officials pushing her out of her home. Reid did not directly try to persuade her to sell, she says. But that was the subtle message.
"He said, 'Sometimes we all have to give up something.' That didn't set well with me. He said, 'As your bishop, I will say if it's meant to be, it will be,' " says Marti.
Reid did not return a request for comment.
But Godfrey said that Reid's church position cuts the opposite way residents suspect and is no conflict.
"It gives him more compassion. He knows some of these people very personally." Reid, Godfrey says, has stayed away from negotiations involving church members.
Milton and Cristina Rodriguez say they see an irony. In other projects, Ogden is encouraging people to live and work downtown - exactly what the Rodriguezes do.
Cristina lives just a block from her job at the Internal Revenue Service. Milton owns vacant properties adjacent to his home so he could build a shop for his growing chain-link fencing business.
"I'll fight it. I don't want to move," says Milton. "I've had the ideal situation here."
And Jerry Wells, who owns an auto-repair and body shop on land the city wants, is worried he won't be able to replace his acre of concrete-covered land and shop for less than $500,000 - the going price for similar properties elsewhere. The city's latest offer: $186,000.
"This isn't right. This isn't a school or a highway. It's a Wal-Mart! That's not how it's supposed to be," says Wells. "If they can do this now, they can do this any time to anybody."
kmoulton@sltrib.com
Residents are challenging the consitutionality. Unfortunately, the govt. and legal system no longer recognize the Constitution.
ping
On July, 30, 2004, the Michigan Supreme Court ruled that local and state governments may not seize private property under their eminent domain power and give to another private user.
In other words, the local government can’t seize your home or business and give it to Wal-Mart, a car dealership, high-tech company or any other private property owner.
The unanimous ruling returned common sense to private property ownership, reined in political hacks stealing property to reward friends or well-heeled connections and built a clear wall between the legal concepts of private property and the public good.
“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.”
This statement indicates that Michigan’s highest court has rediscovered its constitutional and traditional role as interpreter of law, not creative writer of law.
The County of Wayne v. Hathcock ruling overturned the infamous Poletown decision made by the same court in 1981.
Back then, the city of Detroit wanted to bulldoze the Poletown neighborhood and clear it for a GM auto plant. Some rebellious property owners rejected the city’s offer for their homes and the idea of seeing their homes and property seized and given to another private owner, so the city moved ahead with condemnation under eminent domain.
Detroit argued before the Michigan Supreme Court that seizing the property would be a “public good” because it would bring more cash to the city’s coffers. The court in 1981 thought this a swell idea and ruled that it was okay to bulldoze 465 acres, destroying 1,400 homes, 140 businesses, and several churches.
Critics contended that this seizure destroyed more jobs than it created. Time proved them right. At its height, the plant employed less than 60 percent of what it had forecast.
In the July ruling, the court correctly studied this matter from the view of original intent. In other words, what did the lawmakers originally mean when the law was written?
Justice Robert Young called this seizure of property under Poletown “a radical departure from fundamental constitutional principles.”
“In this case,” wrote the court, “Wayne County intends to transfer the condemned properties to private parties in a manner wholly inconsistent with the common understanding of ‘public use’ at the time our Constitution was ratified.”
The court rejected the argument of local governments 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.”
Property owners are calling the decision a great day for property rights nationwide. It restores the rights of all Michiganders to keep their homes and businesses, even if another politically connected private business wants them. It makes citizens greater masters over their affairs and allows them to build their dreams on that private property without fearing it might be seized by greedy politicians.
Since the Poletown ruling, local governments have rampaged through the land, stealing private property under eminent domain and giving the stolen goods to other private owners to build malls, office buildings, stadiums and anything else deemed economically good for the community. The Poletown case has prompted courts across the country to endorse forced transfers of land from one set of private citizens to another set, who happen to have more money and political clout.
Poletown, essentially, laid people’s private property before unknown political winds, where ownership is perpetually subject to the government’s belief that another private party could use a piece of property “better.” This theft ends now, at least in Michigan.
Some Michigan cities are crying crocodile tears. The Hathcock ruling handcuffs politicians and stops them from destroying lives to make political payoffs to their pals. They see it as a blow to “revitalize” crumbling cities. Of course it never occurs to big city politicians that easing zoning laws, scrapping union favoritism and firing useless bureaucrats are legitimate tools to be used to revitalize dead and dying cities.
Good post! I hope it happens here. Running people off of their property in order to give it to some private retailer is unacceptable. I say it violates the 4th Amendment (unreasonable search and seizure), not that govt. gives a crap about the Constitution anymore.
This kind of blatant fascism shouldn't be happening at all. Both sides of the political aisle should have stood up and raised hell about this. On those extremely rare issues where we agree with the libs, we need to tag team with them to stop this kind of thing.
The jumbo-jerk arrogance was epitomized by Costco vice president Joel Benoliel. He told shareholders two years ago that "probably dozens" of its projects involve eminent domain "or the threat of it." He also offered that this is not a corruption of the free market and that limiting government land-grabbing to genuine public uses was a "simplistic" libertarian argument.
This is only the begining. Greedy local governments eye the tax revenues and other "incentives" to do this.
Downtown Cincinnati , Ohio is a glaring example of the abuse of local gov't in closing down decades old local small business in favor of grandiose develeopment schemes that resulted in a $20 million dollar parking lot and huge tax breaks and incentives to out of area corporations with a net loss in city revenue.
Early morning property rights ping to you!
Great property rights read this morning ping!
Mayor Godfrey? Lightweight!
Just another reason to despise Wal-Mart!
Maybe it's just me, but it appears that the Ogden mayor & other 'city officials' are not happy with the tax revenue currently being generated by the area landowners. Essentially what the city wants to do is raise property taxes & in order to do so, they are trying to use eminent domain in the squeeze. That's really despicable in my book.
I think they thought they'd kill two birds with one stone...get rid of a poor neighborhood and get more tax money simultaneously. It would be sitting between two other Walmarts about ten or twelve miles from each other, but both outside of Ogden's jurisdiction.
We need a hard core ruling from the Supreme Court against abusing condemnation of property in favor of property owners. To use emminent domain to put up stores to bring in more tax revenue is a real wrong.
It's not just done in Utah...this ploy shows up all over the country...
I believe this exact thing happened in Little Rock AR to build the Clinton Library. Land was taken from the little guys to make way for a memorial to the "champion" of the little guy.
I'm sure in most cases, while there is a net loss in city revenue, there is a HUGE net gain for the pockets of the govt officials who assisted in the seizure of the property for Wal-Mart, GM, etc.
On a side point: If a property needs to be condemned, then NOBODY should be building on it. It's wrong to condemn somebody's house like it's radioactive, then begin construction the next week on a shopping mall. This should not stand.
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