Amid all the noise, a very, very bad precedent

[superwalrus]

lol, after reading the full text, I can't believe how ignorant Relbeek is. This is a fucking zoning ED case, not just a regular ED case.

Relbeek, you think this is a precedent? You actually think this is something new? Read the Midkiff case cited in the first few paragraphs of the opinion, read it, and tell me how the current rulingis in anyway largely different. This precedent was set a long time ago.

Walrus

[Chants Evensong]

I would argue that Hawaii Housing Authority v. Midkiff 467 U.S. 229 (1984) was also wrongly decided. But that is just me. And perhaps Clarence Thomas.

Regardless, Midkiff is distinguishible from Kelo v. New London. The property owners in Midkiff had -- arguably -- inflicted a demonstrable harm on society. They, seventy-two of them, owned 47% of the land in question. Essentially, the rest of the population were permanent tenants.

The landowners in Kelo inflicted no harm on society. The cases are distinguisible.

[superwalrus]

Chants, so you're saying the law should look one way in a particular situation and another in that same situation just because the side whom property is being taken from is "bad"? At least you're consistent in saying that you disagree with Midkiff, but to distinguish them along the lines you distinguished them is very very wrong. The people that owned all that land had done so legally and the taking of that property very much so infringed on their personal property rights.

Property rights derive directly from the sovereign and are not absolute.

Walrus

[Chants Evensong]

I am saying that Midkiff and Kelo do not present the same situation. Hence my describing the two cases as distinguishible. Twice.

[superwalrus]

it is the same situation... private property being taken and given / sold to another private property... this is EXACTLY what happened in Midkiff, did you read the case?

Walrus

[Ddrak]

If you pay attention to the dissenting opinions, they reason that Midkiff is different because it demonstrated the existing situation as harmful of itself and not merely that there was a "better" distribution of land ownership as is the case in New London:

The Court's holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society--in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28-29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government's power to condemn.

In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public--such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words "for public use" do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.

And I'm sure Chants read the case. He is a lawyer after all.

Dd

[superwalrus]

Ddrak.. thats exactly what I'm saying. You look at Midkiff and say, those few people owning all of that land, and they deserved to get that land taken away. Why? Because what they were doing was wrong? They hadn't stolen any of that land, they hadn't broken *any* laws, yet we label them "bad"? Of course we do. But you look at this new case and say, oh, those people weren't doing anything bad at all! That is your opinion, and you're opinion only. To me, these people were standing in the way of an economic redevelopment plan that would try and revitalize the city.

So basically, you're argument:

If you pay attention to the dissenting opinions, they reason that Midkiff is different because it demonstrated the existing situation as harmful of itself and not merely that there was a "better" distribution of land ownership as is the case in New London:

is something I only somewhat disagree with. In Midkiff the people were "bad" because they monopolized (legally) the land, but I further assert that these people in the new case are "bad" because they were selfish to try and stop their city from getting all sorts of economic boostings from jobs, construction, tourism, etc.

In both cases, (and I dare you to even TRY to argue against this), the government is taking away land from:

1. people that own the land legally and have broken no laws
2. giving it to private people
3. for the purpose of achieving a higher social goal
a. in Midkiff, the higher social goal was to prevent landed aristocracy
b. in this new case, the higher social goal is to boost the failing economy of the city

So, please, dissent all you want.

Walrus

[superwalrus]

ps Chants where do you work and do they need an intern?

Walrus

[ZanypherCocoapuffs]

"A noble can not take a peasant's horse with out agreement and proper compensation."
-Simplified Quote of Magna Carta

[Eidolon Faer]

Well...I'd say this definitely points towards Justice Brown for Supreme Court as soon as we can get her there. She wrote a pretty scathing dissent in another property-rights case during her tenure in California. I believe she referred to the California State Government as a "Kleptocracy."

Oh...and for the record...this is where I draw a line between conservatism and libertarianism. States' rights can get fucked in this case, the ruling is crap. I think this issue is at least as critical to the United States as Roe v. Wade was and the SC should have fumbled around in their robes and found a clue.

Of course, the Jeffersonian solution applies to this case as well--shoot the fucker who tries to condemn your land. Eventually you'll get smarter legislators.

[Dlaet]

Amendment 5: "...nor shall private property be taken for public use, without just compensation."

Public use - defining that term is what this case boiled down to. I suspect most people here are very upset, rightly so, because the properties were taken and then will be transferred to another provate entity, which appears unjust and unfair.

Issues to consider:
- Would additional development in New London been possible, had this specific development not been possible (i.e would Pfizer agreed to build had the city not shown desire to renew)?
- Could a development plan been developed to include the existing residences?
- Does development to (possibly) increase tax revenue meet the "public use" definition (it does now)?

I am not a lawyer, so I am not going to argue those points, but as a reasonably well qualified civil engineer who has worked with several large developers, I must question the quality of planning that went into this project. It is my duty, as a licensed engineer, to not only optimize costs and benefits for my client, but also protect the interests of the public. I must say that there appears to be a lack of due diligence on the part of the New London Development Corporation and their consultants. Having worked on these sorts of urban renewal projects in various regions, I have had to comletely relocated and redesign a few projects due to similar land disputes as in this case.

As a side note, this ruling will not only have substantial impact on many urban renewal programs, but also impact the stadium project in which I am involved (Washington Nationals).

[Klast Brell]

In practice this is a pro business pro states rights decision and Republicans should be happier about it than Democrats no matter which justice was on which side.

The practical application of this case I think will be that any land developer can now compare your asking price for your house to the cost of lobbying the local government to take it from you.

[Embar Angylwrath]

Amendment 5: "...nor shall private property be taken for public use, without just compensation."

Public use - defining that term is what this case boiled down to. I suspect most people here are very upset, rightly so, because the properties were taken and then will be transferred to another provate entity, which appears unjust and unfair.

Issues to consider:
- Would additional development in New London been possible, had this specific development not been possible (i.e would Pfizer agreed to build had the city not shown desire to renew)?
- Could a development plan been developed to include the existing residences?
- Does development to (possibly) increase tax revenue meet the "public use" definition (it does now)?

I am not a lawyer, so I am not going to argue those points, but as a reasonably well qualified civil engineer who has worked with several large developers, I must question the quality of planning that went into this project. It is my duty, as a licensed engineer, to not only optimize costs and benefits for my client, but also protect the interests of the public. I must say that there appears to be a lack of due diligence on the part of the New London Development Corporation and their consultants. Having worked on these sorts of urban renewal projects in various regions, I have had to comletely relocated and redesign a few projects due to similar land disputes as in this case.

As a side note, this ruling will not only have substantial impact on many urban renewal programs, but also impact the stadium project in which I am involved (Washington Nationals).

Dlaet... the 5th Amendment isn't the only thing in play here. Elements of the 14th Amendment apply as well. This ruling didn't violate the 5th Amendment, im my opinion, but it does trample on due process (14th Amendment).

[Relbeek Einre]

Just to throw a little fuel on the fire, I'd like to casually note that if the SC made the opposite ruling, it would have been a "judicial activist" decision, "legislating from the bench."

Kinda makes a court that'd do that kind of thing seem a little less obnoxious, no?

[Syeni Soulslasher MK6]

Beek, this is nothing new.

Do you remember Wally McCarthy's in Richfield what is now Best Buy's HQ offices.
He found out when it was on the front page of stat trib.

[Dlaet]

I did not realize that, Embar. Thanks.

Klast, they already do that. I have been involved in several takings, and in at least one that I can remember well involving several large parcels of zoned agricultural land, it was determined that 250% of the FMV (fair maket value) would be the ceiling of purchase offers, because I did a nice cost-benefit analysis. It came down that the 250% of the FMV was less than the time involved for the hearing process - that delay would have cost the developer approximately 250% of the FMV due to loss of designated school seats and wetlands permitting affecting the release of saleable plats to prospective buyers of homes. The 250% was never offered - the county was heavily involved, and eventually a taking occurred, with "just compensation" which ended up being approximately 125%.

By the way, the property was appraised at $1.1 million - the devleoper (Pulte Homes) was willing to pay up to $2.75 million (250%). Pulte Homes will eventually make sales of approximately 40 homes on that property worth approximately $500,000 depending on when phase of building the property ends up being; the estimate gross will be around $20 million.

[Chants Evensong]

The legal theory that "economic development" would satisfy the "public use" requirement of the 5th amendment is not new. True enough. Local governments have been using it in the same way that New London did for at least 25 years, as I mentioned above.

But they always did so cautiously. They understood that it was a new, untested, and expansive interpretation of the public use clause. Now that the Supreme Court has determined that "economic development" does satisfy the "public use" requirement of the 5th amendment, the flood gates are now open.

To argue that Republicans should be happier about this decision demonstrates a fundamental misunderstanding of conservative thought. Classical conservative thought holds that business and capitalism thrive where government secures the individual rights of life, liberty, and property. Where life, liberty, and property are secure, open markets, innovation, and the rule of law thrive. Where the government fails to secure these fundamental rights, chaos, not peaceful stability, rules. Big business and capitalism cannot thrive in an environment where contracts will not be honored and posession of property (stock, land, equipment, etc.) will not be protected.

So properly viewed, this is not a pro big business decision. It has damaged the sense of security and reliability of ownership necessary for businesses to grow, develop, and thrive. This is a pro big government decision and has blurred the line between the private sector and the public sector. Once that line is completely obliterated, where there is a complete merger between big companies and the government, I think what you have is -- well, I am not quite sure.

Socialism? Facism? China? Communism? Imperial Japan? Authortarianism? Whatever it is, it becomes a form of government which history has told us can become powerful in the short term but becomes entrenched, corrupt, and ultimately fails in the long term.

As for the play between the 5th amendment and the 14th amendment, here is the short version. For about the first 130 years of this country, the Bill of RIghts, of which the 5th amendment is but a part, did not apply to the states. It limited the Federal government. Around the turn of the last century, the Supreme Court determined that certain rights contained in the Bill of Rights did, in fact, apply to the states. That is known as the incorporation doctrine because the Bill of Rights have been "incorporated" into the 14th amendment.

Finally, this was an activist decision and an example of legislating from the bench. A judge legislates from the bench where he or she interprets the written law in a way so far removed from the plain meaning of that law that the interpretation essentially becomes a new law.

In the Kelo v. New London case we see an interpretation of the "publlic use" requirement of the 5th amendment that is so far removed from the original meaning of that clause that in represents new law. Fatter tax coffers stemming from economic development is not a "public use" in the plain meaning of those words. The 5th amendment's public use requirement was clearly intended to be a limitation of governmental power, and should have been so construed. Now it has been completely denuded. Now a taking passes constitutional muster so long as it might make the property more productive. The dissent was absolutely right in asserting that this expanded interpretation has essentially read this valuable limitation on governmental power out of the Constitution.

[Chants Evensong]

Dlaet,

As someone who is very close to how this ruling will be implemented in the real world, is my assertion that "the floodgates are now open" accurate in your educated opinion?

[Harlowe]

Chants,
From someone wanting to understand the legal implications and not having the time to wade through numerous articles, I really appreciate your post.

You always have a way of summing things up that is interesting to read and thorough.

I guess that is why you are a lawyer and I am in Marketing. One-liners are the bread and butter of our existence. =)

[Embar Angylwrath]

I'm not Dlaet, but I can answer this (wife works in the planning department for a municpality)

Opening of the floodgates is perhaps a bit over the top, I think. The population of a municpality still has some control, via elections, to ensure that local governments don't go crazy (and let's be honest, the most potential for abuse is at the municipal level, not at the state level).

The remedy here is a governing ordanance at the municipal level that restricts and/or defines the limits the eminant domain.

It's up to the people to get it done, though.