Posted on 12/15/2005 2:49:40 PM PST by Sonny M
WASHINGTON - When the US Supreme Court ruled in June that private homes may be seized to make room for commercial development projects, the decision ignited a firestorm of criticism.
Outraged property-rights activists said the 5-to-4 opinion in Kelo v. New London would render homes and businesses nationwide vulnerable to government land-grabs to foster economic revitalization. Some ranked it among the high court's worst decisions, calling it this generation's Dred Scott.
Now, six months later, the debate over property rights is still raging, but it is about to enter a new, more deliberative phase as state legislatures prepare to open for business next year.
"There will be 44 states in session, and I am sure you will see bills introduced in all those states," says Larry Morandi, who tracks reaction to the Kelo decision for the National Conference of State Legislatures.
In his majority opinion in the Kelo case, Justice John Paul Stevens wrote that even though the condemnation plan of New London, Conn., did not violate the Constitution, there was nothing to prevent state lawmakers from restricting their own state's eminent-domain power.
The coming year will show to what extent state lawmakers are prepared to exercise that authority. What's clear now is that, as the debate shifts to state capitols, a new set of battle lines are being drawn.
On one side are property rights advocates pushing for tough restrictions on the use of eminent domain against homeowners and small businesses. On the other side is the redevelopment industry - planners, urban renewal specialists, construction firms - and various federal, state, and local officials who stress the need for government flexibility in helping communities rebound from chronic economic hardship.
"The key will be striking the proper balance between use of eminent domain for job creation on one hand and proper respect for property rights on the other hand," says Timothy Dowling of the Washington-based Community Rights Counsel, a public-interest law firm that helps state and local officials litigate land-use issues.
So far, four states - Alabama, Texas, Delaware, and Ohio - have passed measures in response to the Kelo decision.
In addition, last month the House of Representatives voted 376 to 38 to pass the Private Property Protection Act, which threatens to cut off federal funding to states and communities that seize homes for private commercial projects as a form of economic development. The measure now moves to the Senate.
"There is going to be a mega-debate," says Dana Berliner of the Institute for Justice, a Virginia-based public-policy law firm that represents the homeowners in the Kelo case and property owners in other eminent-domain cases. "The momentum toward legislative reform is very strong," she says.
A broad national consensus has emerged across political lines in opposition to the use of eminent domain for economic development, Ms. Berliner says. Polls show public opposition has ranged from 70 percent to more than 90 percent of respondents, she says.
Some reform legislation will likely be "watered down" through statehouse compromises, Berliner says. But "given how strong the movement is to do something on this, it is going to be difficult for states to pass [merely] cosmetic legislation," she adds. "They really are going to have to do something."
Many on the redevelopment side of the debate say they are perplexed by the fact that they won their case at the Supreme Court but appear to have lost it in the court of public opinion. Some credit effective public-relations efforts by property rights groups, while others say members of the media have distorted the issue by favoring homeowners in their news coverage.
Proposals for eminent-domain reform range from an outright ban on property seizures for economic development to beefed-up regulatory processes requiring more community involvement earlier in the planning process. Some states have halted all seizures of homes, pending study by the legislature.
Timothy Sandefur, a lawyer with the Pacific Legal Foundation, favors limiting home seizures to projects involving actual government use of the property. But many states are likely to push for something less, he says. He is not impressed by the reforms adopted in the four states that have already taken action. Reform-minded lawmakers should use those states as models of what not to do, he says.
Alabama and Texas continue to allow public seizures when property is deemed "blighted." But Mr. Sandefur says vague definitions of what constitutes "blight" leave giant loopholes in those state laws.
A proposed law in Pennsylvania has a focused definition of blight and is thus a reform effort with real teeth, he says. "Blight is dangerous property," Sandefur says. "It is property that attracts rats. It is property that is going to fall down. It is property that is going to burn up."
In contrast, the definition of blight in some states is so all-encompassing that it embraces any property that is not producing enough sales-tax revenue for the government, Sandefur says.
Community Rights Counsel's Mr. Dowling favors a legislative approach under consideration in New York. "They are thinking of ways to enhance property rights without tying the hands of state and local governments where a job-creation project does require the use of eminent domain," he says.
Lawmakers there may offer homeowners an increased level of compensation above the required fair market value for their property, Dowling says, to help cover some of the noneconomic costs associated with eminent-domain efforts.
"I don't think it has to be an either/or situation between never using eminent domain and always using it," he says. In many cases, he says, eminent domain is an essential tool to counteract a property owner who is holding out to extort a lucrative deal from city or state officials whose only goal is to achieve a greater good for the community.
When the SCOTUS rearranges the wording in the Constitution at will, amending laws is of no use.
It is the SCOTUS that must be amended.
Supreme Court opened up a bidding war.
Economic "redevelopment" is misleading. The Supreme Court suggested to the states that the mere possibility of increasing tax revenue allows eminent domain.
This "home siezure" stuff will be revisited when - - and it is only a matter of "when" - - the scumbag politicians try to "redistribute" to some connected developer the home of a person who turns out to be a quiet, genuine psychopath with a high-powered rifle and a scope....
Tocqueville knew of the delicate power of the courts, and warned that corruption of judges and lack of perfect like integrity would endanger the balance and the country.
By the way, China has no land ownership, local villages distribute contracts of usage. We are aligning our laws and precedents with codes of the Socialist law.
Our precedent are deliberately pre-codified. It's a socialist orchestration by lawyers. The city knew they would get a pass at the Supreme court from inside sources and knowledge of the way the law schools are shaping the legal culture lately towards precodification.
This is a serious blow to common law too with dangerous consequences. It also threaten the Union as localities may invariably rule against properties owned by outofstaters, as well as force other states to enforce alleged property "violations" done in pro-land-grab states, at the expense of "free states"' business and good relations with good people.
Someone get us rid of scummy lawyers on political, communist and corporate shakedowns payroll.
Anyone know how the move to seize Souters house and turn it into a hotel is going. I hope that is completed.
If that psycho is smart, he will make a tactical retreat from his property, avoid throwing his life away on uniformed lackeys and use his long-range capability to "reach out and touch" the officials and developers who were behind it in the first place.
NOT encouraging or condoning any of the above, just making a grim observation...
The political party has established a soviet socialist system of unelected bureaucrats writing law that overlays a neo-fascist state where government controls private property.
The solution is to pass constitutional amendments in every state making any law based on socialism, communism or fascism illegal and thus unenforceable. The left wingers wouldn't know what hit them as law after law was ruled illegal.
Yes, that is exactly what I am talking about. And certainly, I also would never advocate or condone any kind of violent response (even though, ironically, ensuring that citizens had the ability to fight back against tyrannical government is precisely why the Second Amendment was included in the Bill of Rights).
Regards,
LH
Unfortunately, smart bureaucrats usually stake out where they'll strike. And, have their media friends lined up to demonize any who resist.
I would classify the "media friends" of the 'crats as other targets of opportunity in that smart psycho's mind. Not even the most wealthy and powerful and lawyered-up can protect every target and secure EVERY piece of high ground. That would require an army beyond even the capabilities of the police. When enough people go this route, society as we know it is cooked.
Is there any way that this could go back to the U.S. Supreme Court and be reversed?
I've been asking that for weeks. Maybe the Florida case with 6,000 homeowners on the intracoastal waterway in WPB can be fast-tracked. Those people had the good fortune to buy in the 1970's, but the property is now "too good for them."
-PJ
If that were the case, I'd think it were cooked before the large number of psychos went out and about. Then again, that is semantics and the end result is the same.
Dear PJ - This decision by the U.S. Supreme Court was so, very, very wrong. Now, what to do?
(Denny Crane: "I Don't Want To Socialize With A Pinko Liberal Democrat Commie.Say What You Like About Republicans. We Stick To Our Convictions. Even When We Know We're Dead Wrong.")
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