if these limits may, at any time, be passed by those intended to be restrained?"
-- Chief Justice John Marshall, Marbury v. Madison, 1803
Tale of Two Cities
by Hal_10000
Drew Carey with another investment on Eminent Domain:
Why isn’t this issue part of Election 2008?
Update by Lee: SImple. The Democrats generally support anything that requires the individual to sacrifice in the name of the public good, and the Republicans are vastly more concerned about which candidate is going to turn America into God’s earthly kingdom.
Comments
Deb, go and look at the Kelo decision. Look at who supported it—the court’s liberals—and who opposed it. Read the dissenting opinions, and read the majority opinion justifying the blight. It is ENTIRELY from a collectivist liberal mentality, that the good of the many should outweigh the rights of the few.
Here’s a link. Note at the bottom.
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 liberals and the moderates favored Wal-Mart, and the conservatives favored the private property rights. And why?
“Petitioners’ proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic. Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized.”
In other words, since taking property for a public works project like a freeway is accepted, and since cities have the right to declare areas blighted, then there’s no reason they can’t declare any area blighted for any reason provided there is an economic benefit for doing so.
Lee, I was under the opinion that those that voted for Kelo did so because they interpreted the consitution as allowing it; ie there was nothing in the constitution that seperates the use of emenant domain to build an airport or to build a shopping mall.
I was also under the impression they don’t like the use of eminent domain for some of the uses that it is used; but that it is up to states to create laws banning its use in these situations.
I thought Republicans got pissed when judges make laws? I thought Republicans like federalism?
Given the plan’s comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court’s review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment. P. 13.
I’m generally of a mixed mind when it comes to eminent domain, having worked as part of an expert urban planning witness team on hundreds ED cases in Florida (though mostly on actual public works projects). It is a powerful and valuable tool, but as with any tool, it can be used as a first resort or a last resort. I don’t know if it is “increasingly” being used or if people are just noticing it more (or if groups like Reason are just saying it is being used more)… but it is certainly being used for a greater variety of projects. When it is used as a tool for economic development, it is almost never at the sole behest of the relevant government. They always do so on behalf of a development interest who has specific development plans for an area. Even when it appears to be speculative on behalf of a city.. it simply is not.
I don’t know if the rules are different in other states, but in Florida here is basically what happens:
1) The City (or region or state, as the case may be) (aka the “condemning authority") passes an ordinance declaring certain areas where the project is to occur. The public has opportunity to comment and to try and influence this stage of the game.
2) If adopted, anyone can appeal the decision to the courts at their cost (typically). This doesn’t happen terribly often because of the cost involved.
3) Every landowner gets notice that their property (or a portion thereof) is being condemned (or “taken") for whatever the project is.
4) Every landowner enters into negotiations with the condemning authority over the value of the land. Landowners, of course, have much more than just a financial stake in a property.. they have (sometimes) a huge emotional stake as well. Legally speaking, though, there is no measurable value to emotional stake, so the real market value of the land is determined by the authorities property appraisers (usually a third party private firm under contract). The market value is based on what is the “highest and best use” of property under current development regulations (official Plans, Zoning Ordinances, etc..). Since speculation is just that, it has no legal standing.
5) The landowner can accept or reject the offer.
6) If the landowner rejects the offer, they sue the condemning authority in the courts. All costs are 100% covered by the condemning authority. This includes lawyers, expert witnesses, and their own property appraisal.
7) The two sides present their planning and appraisal cases in court.. and a jury of their peers decides the value of the lands to be taken.
One case we worked on involved Mrs. Smith’s historic looking property that was being taken for a highway widening project in Tampa. She had what used to be a nice old historic looking property that she claimed was suitable for a bed and breakfast (her “highest and best use"). At the time it was literally being used as a flop house for transvestite prostitute drug addicts. The building had no doors or windows, and was partially collapsed. Quite the gold mine. Of course, when the state said they would pay for the relocation and rehabilitation cost so she could open her business elsewhere in the neighbourhood.. she passed. She was crazy, but she wasn’t that crazy.
Mrs. Smith’s main business was making religious ornaments that people could bury in their front yard to bless it when they were selling so they could get a higher value.
Sean, a highway widening project is much easier to justify than a Walmart. Walmart can freely enter negotiations with any landowners they want to purchase their property. The highway is a fixed location, so ED may be the only way to complete the project.
I completely agree, I just wanted to share the story of crazy Mrs. Smith.
Is it those St. Joseph things that real estate people bury in the yard? St. Joseph, the patron saint of real estate, lmao ..
I’ll play devil’s advocate by means of a story here where I live:
There is a town here in Ontario where virtually every commercial property in the downtown is owned by one person. That person, for some unknown reason, has decided to not lease out any of the spaces to any tenants. As as result, the downtown is decimated. No life, no vibrancy.. really, no city. Would it not be in the public good to seize the land by eminent domain, not so it could be redeveloped for tax revenue purposes.. but to remove the economic and public life hostage situation the City finds itself?
flogg: Holy shit.. I never knew it was a common thing.
I’ll play devil’s advocate by means of a story here where I live:
There is a town here in Ontario where virtually every commercial property in the downtown is owned by one person. That person, for some unknown reason, has decided to not lease out any of the spaces to any tenants. As as result, the downtown is decimated. No life, no vibrancy.. really, no city. Would it not be in the public good to seize the land by eminent domain, not so it could be redeveloped for tax revenue purposes.. but to remove the economic and public life hostage situation the City finds itself?
Istn’t that one of the “risks” you take by allowing private property, to be - well, private?
There must be *some* reason why none of the buildings have not been leased; even if it’s a really bad reason - istn’t that the guys right?
Lee, I was under the opinion that those that voted for Kelo did so because they interpreted the consitution as allowing it; ie there was nothing in the constitution that seperates the use of emenant domain to build an airport or to build a shopping mall. … I thought Republicans got pissed when judges make laws? I thought Republicans like federalism?
This isn’t a case of a court making law. This is a case of a court not doing its job to properly interpret law. The history of eminent domain is well known. I’m sure that the principle comes from English common law, so it’s not like there wasn’t hundreds of years of history to use as a basis for a decision.
It is well established that the state may take private land for public use, in the case of things like roads, schools, military bases, etc. This, however, is to be used sparingly, and as a last resort. What the Kelo case was about was the city taking property from one private owner and transferring it to another private owner, with the sole justification being that the new owner could generate more tax revenue than the previous one. That is grossly overstepping the bounds of any reasonable interpretation of eminent domain.
So, in the case highlighted in the Drew Carey video, people simply had their property stolen from them because another group, in this case the W hotel, could provide greater tax revenue. The court decided that the benefit to society from the tax revenue outweighed the property rights of the landowners, something so fucking absurd on its face that I can’t believe anyone even has to discuss it.
I’m not against eminent domain as a concept. I’m against people having their houses stolen because some city council decides that a Wal-Mart would generate a lot more revenue than the property taxes paid for by citizens who have been living in the same house for 30 years.
The leftists on the court all sided with the corporations, and the conservatives all sided with the property owners.
Lee: As I watched the video, the person they interviewed seemed to be a tenant, not a property owner (I could be mistaken, though). As such, his opinion doesn’t have any legal relevance (though it does have emotional relevance). I’m curious why they didn’t interview the other property owners impacted by the action (or any property owners). Smacks a bit of “Moore” to me.
Lee: “This isn’t a case of a court making law. This is a case of a court not doing its job to properly interpret law.”
The court definitely did it’s job and interpreted the law. Under the system in place in the USA, there is a majority rule. Saying it didn’t “properly” do its job is like saying the electorate didn’t “properly elect the right President”. You may disagree with the outcome, but I don’t think you you can say it didn’t do its job. Besides, are you sure the history of the use of eminent domain hasn’t evolved over the years to be more restrictive on the government when it migrated to the USA (as did many governmental powers)? Perhaps it used to be much more expansive in days of yore.
Further to that point (it was more expansive), Wikipedia has to say on the topic:
The first case of eminent domain in English law is called the “Dobbie Process” or the “King’s Prerogative in Saltpeter Case”. The English king needed saltpeter for munitions and took a saltpeter mine from a private individual. The private party sued the king and the court established the right of the sovereign to take “private property for public use” without liability for trespass but requiring payment of compensation for the taken saltpeter. When the colonies became the United States and the English Common Law was adopted as the law of the new nation, this principle was recognized. Contrary to popular belief, the Fifth Amendment to the Constitution did not establish this right in the U.S., as it was already inherent in common law. The Fifth Amendment limited the right of eminent domain by requiring that takings be for “public use” and that “just compensation” be paid for the taken property.
Lee: As I watched the video, the person they interviewed seemed to be a tenant, not a property owner (I could be mistaken, though). As such, his opinion doesn’t have any legal relevance (though it does have emotional relevance). I’m curious why they didn’t interview the other property owners impacted by the action (or any property owners). Smacks a bit of “Moore” to me.
Possibly. I think, though, that merely being a guy who owned a building would be a lot less interesting an interview than the guy who owned the bar. He provides the tangible connection between the building and the value it added to the community.
The issue was the use of eminent domain to transfer private property from one private party to another private party. In other words, the owner was forced out one way or another. Maybe the owner would have sold, maybe he wouldn’t have. If the owner had decided to sell then the bar owner wouldn’t have a leg to stand on. However, if the property owner was a willing seller, then why the need to use eminent domain?
Basically, since the Kelo decision, the use of eminent domain to seize private property has skyrocketed. The government will say, “We want to buy your land. You can either sell it to us or we can seize it. Take your pick.” It’s like the old mafia line, “I’m going to make you an offer that you can’t refuse.”
Istn’t that one of the “risks” you take by allowing private property, to be - well, private?
Bingo. Allow me to flip around Sean’s hypothetical question.
“Would it not be in the public good to seize all public land by eminent domain, not so it could be redeveloped for tax revenue purposes, but to permit a central planning committee to determine the use most appropriate and beneficial to the common good?”
The court definitely did it’s job and interpreted the law. Under the system in place in the USA, there is a majority rule. Saying it didn’t “properly” do its job is like saying the electorate didn’t “properly elect the right President”. You may disagree with the outcome, but I don’t think you you can say it didn’t do its job
Fair enough. It just did it’s job in an abysmally wrong manner, violating fundamental common sense and centuries of legal history and precedent.
Less interesting, true. Less accurate, definitely. Though ED proceedings were undertaken, we do not know how amicable the property owner was to the sale. The highest and best value of the land might have been deemed quite high and he walked away happily enriched. But, unfortunately, as in a Moore “documentary”, we are not provided enough information to decide that for ourselves in this polemic.
"It just did it’s job in an abysmally wrong manner, violating fundamental common sense and centuries of legal history and precedent. “
Again, I’m not so sure that’s correct. See Hawaii Housing Authority v. Midkiff (1984) and Berman v. Parker (1954) or any of the war time cases where lands were seized and turned over to private interests to develop weapons factories and the like.
The Fifth Amendment limited the right of eminent domain by requiring that takings be for “public use” and that “just compensation” be paid for the taken property.
Exactly. And by what warped definition can anyone say that building a W hotel is “public use”?
Besides, the courts have always recognized the right of cities to declare areas “blighted.” If there’s a landowner, such as in your Ontario example, who allows his property to fall into disrepair and uselessness, the public interest is served by declaring it blighted and doing something else with it.
The Kelo decision, however, made it so that “blighted” means anything they city wants. 60 Minutes did a story on this a few years back. There was an area that Wal-Mart wanted to build a supercenter, and they declared a bunch of houses to be blighted. There was NOTHING blighted about these houses. They were a nice neighborhood, where some people had lived for decades. All the neighbors knew each other, it was a little slice of Americana. Unfortunately, Wal-Mart’s tax revenue would be substantially higher than the revenue from these old houses so, oops, your area is “blighted.”
Like I said, nobody disagrees with the general idea of eminent domain. Nobody disagrees with the concept of seizing blighted property. The disagreement is in how expansive this power should be, and whether it should ever be used solely to increase tax revenue.
Again, I’m not so sure that’s correct. See Hawaii Housing Authority v. Midkiff (1984) and Berman v. Parker (1954) or any of the war time cases where lands were seized and turned over to private interests to develop weapons factories and the like.
Unfortunately, my communist overlords do not allow me to access Wikipedia. :)
Lee, you are ignoring the point. The court has explicitly said that this is not up to them, it’s up to local legistatures to define what “public purpose” is for them. This makes sense to me because public purpose is going to mean very different things in different places. Take, for example a ski resort like Whistler. Their the council is incredibly strict on what is allowed in the village; the reaason being the whole atmosphere of the town is important to selling it is a tourist destination; so the local rights of people setting up business or decorating or whatever are much more restricted than your standard town.
They say this explicitly:
“Court long ago rejected any literal requirement that condemned property be put into use for the … public.” Id., at 244. Rather, it has embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158—164. Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power. Berman, 348 U.S. 26; Midkiff, 467 U.S. 229; Ruckelshaus v. Monsanto Co., 467 U.S. 986. Pp. 6—13.
They refer to precedent and that it is upto legislatures. Really, I don’t know what more you want; it is incredibly hard for the supreme court to decide what “public use” can be for every and all situations across all states and all possible uses when such uses. The term “public” is itself not well defined.
He provides the tangible connection between the building and the value it added to the community.
Ironic really given that the argument used for destroying the place is that it is better for the community.
The issue is property rights v “good for community” but this video seemed to turn it into “a fun, cool bar for the community” v “a big corporate hotel complex thingy for the community” thereby lossing the core of the issue - property rights.
Ironic really given that the argument used for destroying the place is that it is better for the community.
What I meant was, people watching the video can relate to a bar. We all go to them, we all know them as fun, and we all know that they can mean a lot to the areas in which they are located. Let’s assume the actual landowner in this case was a 72 year old man. What would make for a more compelling interview, the bar owner discussing the loss of the establishment, or some old fart who owned a building?
Without the context of what the building was used for the point becomes less clear. Was the building a warehouse? Was it used as a sweatshop? Was it a crackhouse? We wouldn’t know. You could have some guy saying, “I leased it to a bar,” or you could interview the bar owner, the guy most impacted by the seizure.
I think Sean’s got a valid point, it probably would have been good to hear from the landowner himself, but the “value” of the property is more than just the actual brick and mortar and dirt that comprises it. It’s like preserving historic architecture, something I generally have no problem with whatsoever.
Lee, you are ignoring the point. The court has explicitly said that this is not up to them, it’s up to local legistatures to define what “public purpose” is for them.
This is like saying that it’s up to each country to decide what “torture” is to them.
The concept of eminent domain has been long recognized as a necessary evil, a power granted to government out of necessity but to be used sparingly. By granting each municipality the right to define what “public use” means then you are tacitly saying that “public use” has no meaning at all, when it has clearly been understood to have a particular meaning since at least the time of the writing of the Constitution.
Lee: Those two cases were just examples of private land being taken for other private developments. Kelo reminded States that they have the right/obligation to define “public use”, which a number of them have (I think I read that 12 states have leglislated expansive powers and 12 have legislated restrictive powers).
And while I do enjoy a good bar (though I don’t drink), others not of my pursuasion may see them as a blight on the neighborhood.. attracting drunkards and contributing to crime in an area.
As I watched the video, the person they interviewed seemed to be a tenant, not a property owner (I could be mistaken, though). As such, his opinion doesn’t have any legal relevance (though it does have emotional relevance).
If via ED a guy loses his business, I think it’s a legal issue. What about his lease? The government could use ED to put someone they didn’t like out of business. Both the landlord and the tenant could be screwed. It’s not just an emotional thing. I would sue the city for compensation for the loss of the business.
I could see someone getting killed over this one day.
ED = Eminent Domain, not Erectile Dysfunction. Sorry for the confusion.
Lee: As padders said, the problem stems from a non-universal agreed-to standard of “public” and “use"/"good". And as a result, you have expansive Supreme Court decisions in the past that have defined “blight” cleanup projects as a public use/good when it wasn’t considered-so previously. I think padders is right as well in that it should be up to the States to decide what uses it wishes to include as ED-eligible.
I wouldn’t say torture (for which there is an internationally agreed upon definition) is comparable to eminent domain. That being said, this administration certainly has defined torture as a public good.
GripeBoy: I don’t have experience with condemning of leases, though I know such takings are included in ED generally. A good lease will have a “condemnation clause” that will ensure that compensation gets to both parties.. though also common are waivers of condemnation clauses in exchange for leasehold considerations. Your point is valid that there is a legal issue with leases.
Lee: As I watched the video, the person they interviewed seemed to be a tenant, not a property owner (I could be mistaken, though)
I was gonna mention that too. I felt that they picked a bad example because most of the video seemed to imply that the guy who ran the bar owned the lot.. then at the very end it was finally mentioned that he didn’t. Or they’d quickly mentioned he had a partner or something at the start… but it didn’t seem clear. This made the case seem a tad weaker to me. In reality, it was still a case where owners were pushed out, but by focusing the interviews on the one guy, who ended up not being the land owner.. it gives people who like using ED like that, something to focus on as a weakness in that specific case.
As for it being the W hotel company… pah. I stayed at the W in SF for a conference and it sucked. Apparently the definition of being a “hip” place is to have really dark colors and barely any lighting so everytime you walk through the halls you feel like you’re about to trip over something and break your neck. This was also the same place that when I called for room service, they used the back of a torn up printed receipt to take my order.. and left it on my tray. It had the full name and full credit card number of a person that had stayed in the hotel before. Idiots.
I think you guys are also missing the second part of the video, where they talk about a city that doesn’t use ED for urban renewal and has had much better success.
And I have to agree with lee on the interview choice. You go with the people who are directly impacted by the ED decision. The landlord can sit there and say, “hey, it’s my property I want to keep it”. But to really feel what has happened, you have to know the people who lost jobs, the customers who lost a hangout and the neighborhood that lost an institution.
The reason I link to Carey’s videos is precisely because of this. He is personalizing an issue that we Libertarians tend to discuss only in the extreme abstract. We can sit here and debate obscure point of law until the cows come home. But if we are going to fire the public’s outrage, we have to let them know that this isn’t an esoteric political issue—real people are getting hurt. And who is more real than a bartender and his customers?
Hal_10000: What is the difference between Drew shaping the facts to present an arguement and Moore shaping the facts to present an arguement.
In the second part of the video we see that 2 communities used different techniques to get to the same spot. Putting aside the fact that both of the two sites are VERY different, and are not in competition with each other for development dollars, ultimately both sites were being developed with the projects the developers wanted. It isn’t correct for the conclusion to be that one has more success than the other. They are both successful if the end goal is urban renewal or just “development”. The video doesn’t address the larger context of successes or failures of either city.. so to draw conclusions would be in error.
This video, while interesting, is designed (well) to appeal to emotions. It is not designed or intended to withstand scrutiny of facts, nor does it.
Sean, there is a huge difference between what Drew has done here and what MIchael Moore does. Drew left out a minor facet to concentrate on the impact of this issue; Moore leaves out entire swathes of relevant information to deceive.
Also, forget which city did better. The point is that urban renewal does not have to entail gobbling up people’s property rights to benefit rich influential developers.
It’s not just recently. The entire awful city-destroying history of urban renewal is littered with this. In the 60’s, it was poor blacks who were having their homes declared “blighted” and ripped out from under them so that influential developers could build housing projects. My dad watched a poor but safe black neighborhood turned into a slum this way.
ED, in this context, has, at best, been unnecessary and at worst has been a total fucking disaster.
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Sorry, Lee (and Hal),
The Democrat thing is simply not true. Democrats fall back to John Locke - life, liberty and property. Governments declaring “blight” to line the pockets of developers is a “business-class” trait - one strictly adhered to by Republicans. After all, it will increase revenues, especially with those tax cuts (otherwise called subsidies).