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January 11, 2007

EMINENT DOMAINIA

Eminent domain editorials appear in today's editorial pages of two conservative dailies:

The NY Sun, Fixing Kelo
The US Supreme Court will be deciding whether or not to hear the Port Chester case, where the city condemned private property after the property owner declined an offer to pay off the city's developer of choice.

On Friday the court will confer on whether to take the case of one Bart Didden and his business partner, Domenick Bologna. Messrs. Didden and Bologna owned a piece of property in downtown Port Chester, N.Y. They bought it, they paid off the mortgage, they paid their taxes, and in 2003, they decided to lease that property for the construction of a CVS retail pharmacy. Unfortunately for them, their property fell within the village’s redevelopment district, and so the village’s chosen developer — G&S Port Chester — dropped by for a chat.

Since G&S had been guaranteed full use of the village’s powers of eminent domain in developing downtown Port Chester, it made Messrs. Didden and Bologna an offer that amounts to government-backed extortion: give G&S $800,000 or a 50% stake in the CVS pharmacy or G&S will have the village condemn the property. Messrs. Didden and Bologna said no thanks, and the next day their property was condemned. Adding insult to injury, G&S announced plans to build on the .76 acre plot a pharmacy named Walgreen’s.

Wall Street Journal, Let There Be 'Blight'

The city of Burien, Wash., recently decided that a piece of property owned by the seven Strobel sisters that had long housed a popular diner-style restaurant was not upscale enough for the city's ambitious "Town Square" development, which will feature condos, shops, restaurants and offices. Rather than condemn the property for a private developer and risk a lawsuit, Burien came up with a plan--it would put a road through the property, and the city manager told his staff to "make damn sure" it did. When a subsequent survey revealed that the road would not affect the building itself, but only sideswipe a small corner of the property, the staff developed yet another site plan that put the road directly through the building. A trial court concluded that the city's actions might be "oppressive" and "an abuse of power"--but allowed the condemnation anyway. The Washington Court of Appeals affirmed, and the Washington Supreme Court refused to hear the case.

Welcome to the post-Kelo world.
...
Washington courts now defer to even the most extreme examples of governmental exploitation, exemplified by Burien's treatment of the Strobel sisters. So long as the government can manufacture a fig leaf of public use or possible public use for constitutional cover, local governments can take private property to transfer to other private entities or deliberately target properties not upscale enough for the bureaucrats' "vision."

The tools available for trampling constitutional rights are already there. Since the Kelo decision, municipalities have rediscovered Washington's Community Renewal Act, the local incarnation of statutes used to destroy working-class (and often minority) neighborhoods across the country in the 1950s and '60s. The government, under the act, can condemn an entire neighborhood and transfer the property to a private developer so long as the government finds that at least some property in the neighborhood is "blighted." Unfortunately, this statute is so broadly worded that practically every neighborhood in Washington meets the definition of "blight"--things like "obsolete platting" and "diversity of ownership" constitute "blight." The statute provides all the devices a mildly clever planner needs to pull off a Kelo-style taking.

NoLandGrab: New York is regarded as the "worst state in the country for eminent domain abuse" (see "Public Power, Private Gain: New York"), and it is well known that the State's definition of "blight" is so wide you could build a 19,000-seat arena and 16 high-rises in it.

Posted by lumi at January 11, 2007 8:20 AM