Update on the Preakness Takings Case

 Ilya Somin

Back in March, I wrote about the City of Baltimore's lawsuit attempting to use eminent domain to take the Preakness Stakes Triple Crown horse race, in order to prevent the owners from moving it to a different location. As explained in the previous post, the case raised several important legal issues. This post is a brief update on developments since then. In mid-June, the City dropped its lawsuit, apparently as part of an agreement with the owners to continue negotiating on possible ways to ensure that the race will stay in its current location in Baltimore, instead of moving elsewhere in Maryland (as the owners previously hoped to do). Later that same month, the owners and the City entered into a "new phase of negotiations" intended to keep the race at the deteriorating Pimlico Race Course, which is badly in need of repair. At least for the moment, the City is no longer trying to condemn either the Pimlico Race Course, or the Preakness Stakes horse race.  The legal community may therefore miss out on a case that raises multiple thorny issues, such as whether the intellectual property and trade marks associated with the race are within Baltimore's jurisdiction, and whether condemning a horse race to keep it from moving to a new location violates the Dormant Commerce Clause. Had the lawsuit gone forward, it would have been a virtual full-employment act for eminent domain experts! However, the dismissal of the case of was "without prejudice."  That means the city could potential refile it, if negotiations go badly. Moreover, it is hard to say to what extent the threat of condemnation might have been a factor in forcing the owners to reconsider their apparent plan to move. If the business community is left with the impression that the owners gave in under the threat of eminent domain, it could incentivize other enterprises to flee before they suffer the same fate...MORE

Give Susette Kelo Her Land Back

lya Somin|

Jeff Benedict is a prominent reporter and author of Little Pink House, an excellent journalistic account of the events leading up to Kelo v. City of New London, the controversial 2005 Supreme Court decision in which the justices ruled that it is permissible for the government to take homes and other property in order to transfer it to new private owners for purposes of promoting "economic development." His book was recently made into a powerful movie about the case (which I reviewed here). In a recent op ed in The Day (the local paper in New London, the city where the Kelo takings occurred), Benedict proposes that New London return at least some of the land taken from Susette Kelo and her neighbors to the original owners:

...As Benedict points out, the development plan that led to the Kelo takings fell through, and the land remains essentially empty to this day. It would be wrong to say that the property is completely unused. As I described in The Grasping Hand, my own book about the case (which focuses more on the legal and policy issues than Benedict's), a colony of feral cats have taken up residence on the site. Some enterprising locals have built little cat shelters for them.

...In the course of conducting research for my book, I interviewed Susette Kelo and other homeowners displaced by the Kelo takings. Most were still very angry about their mistreatment by the City and the New London Development Corporation - not just because of the ultimate outcome of the case, but also because of the extensive harassment they were subjected to in order to get them to sell their land "voluntarily." The compensation they eventually received was not enough to offset suffering endured over a period of several years.

...While the Kelo takings were a tragedy for the City of New London and the displaced homeowners, the massive backlash generated by the Supreme Court decision did lead to valuable - even if incomplete - reforms in many states. It also broke the seeming consensus in favor of a broad view of "public use," under which most lawyers and judges believed the Constitution allows the government to take property for almost any reason it wants. Several state supreme courts have repudiated Kelo as a guide to the interpretation of their state constitutions' public use clauses, thereby providing stronger protection for property rights than currently mandated by the federal courts' interpretation of the Fifth Amendment. The Supreme Court might well overrule or limit Kelo in a future decision.

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 Ilya Somin is Professor of Law at George Mason University and the author of Democracy and Political Ignorance: Why Smaller Government Is Smarter and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domai

Gov’t Wants to Bulldoze Retiree’s 50-year Family Home - video

West Haven, Connecticut has always been home for Bob McGinnity. He grew up there and his childhood home remained his base during his time in the U.S. Navy and his career as a conductor for Amtrak. He lives in that home today, enjoying his long-awaited retirement. Bob remodeled the home and his uncle, Michael Perrone, lives in the unit below him. Living so close has been invaluable since his uncle’s recent stroke and heart attack. It allows Bob to help care for his uncle, who gets to stay in his home to recover. This ideal arrangement, however, is under threat from Bob’s own government. The city of West Haven has teamed up with a private company—The Haven Group, LLC—to build a strip mall along the West Haven waterfront, which would include both Bob’s ad Michael’s homes. Bob and Michael do not want to sell and building around them would require the developer to rearrange only six small stores in the overall complex. Except there is one problem. West Haven is in Connecticut, home of Kelo v. New London, the much-reviled 2005 U.S. Supreme Court case that allowed government officials to condemn property based on nothing more than a promise to generate more tax revenue. That decision sparked outrage and a nationwide backlash—44 states have passed laws reforming their eminent domain laws to make Kelo-style takings harder and nine state supreme courts have rejected the Kelo decision. The Kelo case is also notable for what it did not spark: development. Twelve years later, the neighborhood destroyed by New London is a vacant lot populated only by grass, weeds and feral cats. The lesson of Kelo is clear: Eminent domain abuse hurts property owners, destroys communities and fails to generate the kind of development its proponents promise. But West Haven officials have taken the opposite lesson from the case. They apparently believe the case means they can take anyone’s property, anytime they want, for any reason. That is not true. The West Haven condemnations are worse than Kelo. Government officials in Kelo wanted to take private property in the hope of realizing their (wrong-headed and fantastical) plans for redevelopment. But government officials in West Haven did not decide their town needed a strip mall and go looking for someone to build it for them. A private developer decided to build a strip mall and has enlisted the city government to take property on its behalf. Simply put, West Haven is not condemning Bob’s property for a public purpose; it is condemning Bob’s property because a private developer told it to. This is exactly the kind of taking that even the Supreme Court’s Kelo decision singled out as unconstitutional...more

https://youtu.be/9Bb1us7uLFQ

Private company seeks property condemnation through eminent domain

Few principles hold a more prominent place in Texans’ personal creeds than the right to own property. It’s why many settled here. It’s why many bridle against regulations that impinge on how they ranch, farm, or manage their property. And they recoil at the notion that a private company can ask and receive permission from state or federal governments to have part or all of their property condemned by eminent domain, limiting access to essential parts of a farm or ranch or, in more dire cases, rendering the property unfit for agriculture, hunting, or sale. Landowners in Medina County, Texas, in dwindling numbers, hope to prevent a private out-of-state corporation — Vulcan Materials, a Fortune 500 multinational materials company based in Birmingham, Ala. — from completing condemnation of 43 properties to build a 9 mile rail spur from a quarry site. Vulcan has been trying to build the rail spur from a leased 1,700 acre quarry site to connect with the Union Pacific rail line 7 miles south at U.S. Hwy. 90. Attorneys for Southwest Gulf Railroad filed a Petition in Condemnation in the Medina County Court on 43 properties belonging to farmers, ranchers, and other landowners in northeast Medina County.  “What separates this case is that eminent domain is being abused by a private corporation, solely for its own benefit,” Fitzgerald writes. “A restrictive covenant barring rail construction binds 9,622 acres, on 56 separate properties with 108 signatories, along Vulcan’s proposed rail line. “Only condemnation, using the power of eminent domain, would extinguish these restrictive covenants and remove them. But such power can only be validly exercised by a common carrier, which Vulcan’s paper railroad, Southwest Gulf Railroad, plainly is not...more

State demolished 40 homes for now-abandoned project

The first home Brunilda Galarza ever owned, she surrendered to the government to be razed and submerged beneath a 10-acre drainage pond.  Like dozens of other residents in the neighborhood just outside Altamonte Springs, she and her husband packed up and cleared out of their community, then watched as cranes moved in behind them to tear down their homes. The driveway where her son practiced his basketball layups, the patio where they hung streamers for his bug-themed 3rd birthday party - it all disappeared to make way for a retention pond that the Florida Department of Transportation said was needed for a critical highway expansion. But it’s been six years since the Galarzas moved out, and the land is still as dry as they left it. Project plans changed. The 41-lot neighborhood - which FDOT deemed “necessary for public use” and was purchased, emptied of residents and demolished for $12.9 million - will serve no lasting public purpose. The land, just east of Interstate 4 and south of State Road 436, will probably go up for sale in a few years and end up in the hands of a private developer. The result of all the moving and expense might be to erase one neighborhood and replace it with another. Situations such as the one near Altamonte Springs are one side effect of a change in how FDOT approaches many road projects, says a Jacksonville-based attorney experienced in eminent domain cases. Recent shifts in how road projects are sequenced have escalated the risk that the government will unnecessarily take homes and other private properties, attorney Andrew Brigham said. Once rigidly ordered in phases, transportation projects have become more fluid, and designs are often still in flux as construction gets under way. As a result, transportation officials are taking land before they know how they’ll use it or whether they’ll need it at all, Brigham said. “In some cases, the government is jumping before they really look,” he said. “With greater discretion put in the hands of government decision makers, you have greater chance of abuse of property rights.”...more

When they have the money and the authority, this is how they treat the public.  And guess what?  The Republican-controlled Congress just passed and sent to Obama a $305 billion federal hwy. bill.  Reckon there is anything in it to prevent this kind of waste and abuse?

Donald Trump Loves Land Grabs

By Jacob Sullum

Donald Trump, who in the 1990s tried to force an elderly widow out of her Atlantic City home as part of a plan to expand his casino, now says he is glad she resisted, because it helped him avoid a bad investment. By successfully fighting condemnation of her home, Trump told Breitbart News last week, Vera Coking "saved me a fortune."

That experience has not dimmed the Republican presidential contender's enthusiasm for using eminent domain to advance the goals of wealthy developers like him, which he called "a wonderful thing" in an interview with Fox News. Trump, who is frequently described as a "populist" candidate, thinks it's the prerogative of the rich and powerful to push around the little people who get in their way, provided they have a plan, no matter how ill-conceived, that promises "economic development."

The Fifth Amendment allows the government to take property "for public use" as long as it provides "just compensation." But Trump, currently the front-runner for the Republican presidential nomination, reads "public use," which traditionally referred to facilities like roads and bridges, to mean "public benefit," which opens the door to pretty much any business project.

"If you were going to rip down a house and build another house, no way," the billionaire reality TV star told Breitbart News. "But if you're going to build a factory that's going to have 5,000 jobs, that's entirely different."

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Carly Fiorina Slams Donald Trump for His Crony Capitalism and Eminent Domain Abuse

Last week Republican presidential candidate Carly Fiorina appeared on The Federalist Radio Hour for a discussion about politics and the 2016 White House race. In response to a question posed by fellow guest Betsy Woodruff of the Daily Beast, Fiorina had the following to say about Donald Trump's recent glowing endorsement of Kelo v. City of New London, the Supreme Court's controversial 2005 ruling on eminent domain:

I think Donald Trump, among others, has engaged in crony capitalism in its most raw and abusive form. When commercial interests get together with government to take away private property for their own commercial interests, that's a big problem. And I think I join so many conservatives in saying that eminent domain has been abused. And it has been abused by the collusion between governments eager for revenue and businesses eager for competitive advantage. So I find the Kelo case—if ever there was a case for judicial engagement instead of judicial restraint, it's this set of issues.

Fiorina is exactly right. In 1994 Trump got together with government officials in Atlantic City, New Jersey, in a shameful attempt to seize the home of an elderly widow in order make room for a limousine parking lot for the Trump Plaza hotel and casino. It was a textbook example of eminent domain abuse and "crony capitalism in its most raw and abusive form."

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'He's wrong': Rubio hits Trump over eminent domain

Florida Sen. Marco Rubio bashed GOP front-runner Donald Trump a day after the real estate mogul called the use of eminent domain "wonderful."

After a campaign stop at a tech company in New Hampshire, Rubio told The Weekly Standard that Trump is "wrong" on the issue, adding that private property is "one of the most important rights" given to Americans.

"He's wrong," Rubio said. "In Florida, when I was a state legislator, we passed what has become model legislation for other states around the country — that I actually passed — both a law and a constitutional amendment that keeps developers like Donald Trump from using eminent domain to take private property away from an owner and give it to another private owner, which is what the Kelo decision said should be legal unless states barred it.

"So he's wrong about that," Rubio said. "One of the most important rights Americans have is private property."

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Kelo v. City of New London Ten Years Later

 by Richard Epstein

Ten years ago, on June 23, 2005, the United States Supreme Court dropped a judicial thunderbolt in Kelo v. City of New London. By a narrow five-to-four margin it rejected a spirited challenge that Susette Kelo and her neighboring landowners had raised against the ambitious land-use development plan put forward by the City of New London, Ct. The formulaic account of the holding is that a local government does not violate the “public use” component of the Constitution’s takings clause — “nor shall private property be taken for public use, without just compensation” — when it condemns property that will be turned over to a private developer for private development. Under the logic of Justice John Paul Stevens, so long as there is an indirect promised public benefit from the development process, the public-use inquiry is at an end, and Ms. Kelo can be driven out of her pink house by the water.

 Ten years later, my reaction is the same as it was at the time: truly horrible. Justice Stevens and the Supreme Court were tone-deaf as to what moves people in dealing with property. Of all the cases decided since the year 2000, Kelo may not be the most important; ironically, it certainly was not the most controversial. But hands down, it was the decision that got more people indignant than any other.

 The bipartisan coalition in opposition was, and is, easy to identify. On the right, there are folks who think that a person’s home is his castle, and thus resent any forced displacement of individuals for the benefit of some supposed social good. And that anger doubles because of the crackpot and visionary nature of the particular plan at issue in Kelo. The communitarians on the left were upset that Pfizer, the company that was going to use the seized land for a research facility, should flex its muscles in ways that prey on individual people.

Anyone who wants to get a sense of the process would be well-advised to real Ilya Somin’s new book, The Grasping Hand, which offers a painful blow-by-blow account of how good intentions for redevelopment were so badly misdirected that ten years later the seized property remains empty. Perhaps the only nice feature about the case is that Ms. Kelo’s pink house was whisked away to another site, so that the newly vacant land can be used to collect debris that washes up on the shore. Yes, the grandiose development plans for the Fort Trumbull neighborhood never got to first base. As it turned out, New London was too slow off the mark, other communities built the ancillary facilities that Pfizer wanted, and the company pulled out of New London once the tax subsidies ran out.

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Ranchers’ dispute has deep ties to Fort Hood history

Last week, a group of ranchers appeared in a Coryell County courtroom as part of a lawsuit against the Central Texas Cattlemen’s Association. The five men are fighting the association’s board, which stripped them of their rights to graze cattle on Fort Hood land after the men allegedly erected a cattle pen on a restricted section of land without proper permission. While the lawsuit works its way through the court system, the case has roots dating back to the earliest days of the sprawling military installation and the hundreds of Central Texas families displaced by its construction. The establishment of an Army post, known as “Camp Hood” in 1942, swallowed up 22 area communities and displaced more than 700 families in Bell and Coryell counties. The initial 108,794 acres of land that became Camp Hood — once home to ranches, farms and schools — became a place for tanks, barracks and areas blasted by artillery fire. Much of that land was taken by the federal government under the auspices of eminent domain, and the process was expedited by the Second War Powers Act in 1942, according to Baylor University’s Sylvia Edwards’ thesis, “Land Acquisition in Coryell County ... A Civilian Perspective.” At the time, many of the families had been on the land for generations, but many acquiesced to help with the war effort. In J. Akiens’ “History of Fort Hood and Local Area,” a witness relayed the reaction of one group of families to an Army official explaining the land acquisition to them. “Many of them were gray and stooped; they had been born upon that land; and their forefathers were buried there. They had labored to improve it and expected to pass it on to their sons and daughters. No tears were shed, nor were many words spoken. Each family group went its own way, but on their faces could be seen the deep hurt.” The land acquisition was especially painful for ranchers, who not only lost their homes, but had to scramble to figure out what to do with their livestock...more

The Unconstitutional State

by Paul Jacob

In a cruel twist of fate, Connecticut is nicknamed “The Constitution State.” This small slice of New England, once known as the “Land of Steady Habits,” is these days most famous for its abuse of the property rights — thus abridging the constitutional rights — of its inhabitants.

A decade ago, local government officials thought it so important that they be able to take the homes of Susette Kelo and other families in the Fort Trumbull neighborhood, in order to simply hand their property to a ritzy private development — and moreover, to guard that awesome governmental power in perpetuity — that they litigated the issue of eminent domain all the way to U.S. Supreme Court, in Kelo v. City of New London.

The Fifth Amendment of the U.S. Constitution addresses the issue of eminent domain with ample clarity: “nor shall private property be taken for public use, without just compensation.”

There are two restrictions embedded in that wording.

First, private property cannot be taken without “just compensation.”

Second, the Constitution does not contemplate private property ever being taken for anything but “public use.”

The takings engaged in by the petty tyrants running the City of New London, Connecticut, were not for a public use at all, but for an obviously narrow, private use. Still, the city coyly claimed in court that the transfer of property would serve a “public use” simply because the new development — a new headquarters for Pfizer, the multinational pharmaceutical company, and other shops and residential dwellings — would accrue more tax dollars for city officials to spend than would mere homes for middle class families.

By that logic, Americans would forever live in fear that officials in city or state or federal governments might decide at any time to steal their home or business property and give it to another person or business able to generate more tax revenue for these government officials.

That bizarre logic is, today, the official law of the land.
 

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County seeks Colo. couple's land through eminent domain to preserve open space

The view from the deck of the small, century-old cabin was a dream come true for Andy and Ceil Barrie -- a sweeping panorama of 13,000 and 14,000-foot peaks towering above the forest of centuries-old bristlecone pines. It convinced the couple to buy a 3-bedroom home in a subdivision below, where they could live year-round, and the 10-acre parcel surrounding the cabin in the midst the White River National Forest. Now the county government, alarmed that the couple drives their ATV up a 1.2-mile old mining road to the cabin, wants to take the Barrie's land — and it's doing so by claiming eminent domain. Rather than using the practice of government seizure of private property to promote economic development, the county is using it to preserve open space. The move shocked the Barries. They have allowed hikers to travel through their property, had no plans to develop the land and were negotiating with the county at the time it moved to condemn the property. Open space "is all it's ever been," said Andy Barrie. "I feel like I can't trust my government." Summit County Attorney Jeff Huntley said the county had to act after the Barries insisted on being able to use motorized transport to get to the cabin. "People in this community are very intent on preserving the back country," he said. Experts in eminent domain say it's rare for governments to use that power to create parks or open space. "It's not that you can't do it, but they don't do it much," said Dana Berliner, who was co-counsel in the 2005 U.S. Supreme Court case upholding the constitutionality of eminent domain. "There's typically other ways of doing open space than just taking land." But in Colorado, where picturesque mountain towns are bursting with tourists and second-home-owners, and outdoor recreation is the state religion, there have been a few instances of cities deciding to confiscate land to preserve it. The most significant was when Telluride in 2004 seized 572 acres that the owner wanted to develop along the San Miguel River and left it as open space. The state Supreme Court upheld the confiscation, saying that especially overcrowded mountain towns need to preserve their recreational and natural assets...more

Court Rules Kansas City Suburb Can’t Seize a Burger King With Eminent Domain

Eminent domain has traditionally been used for “public uses,” like building roads or schools. But officials in North Kansas City, Mo., (a suburb that’s north of Kansas City) wanted to wield that “despotic power” to commit fast food regicide. Todd Gilbertson has been operating fast food restaurants for 35 years. But one of his restaurants, a Burger King he’s been operating for the past 15 years, was threatened with condemnation by North Kansas City.The city commissioned two blight studies which found there were blight factors in a proposed 57-acre redevelopment area. But even those studies determined that the Burger King itself wasn’t actually blighted. Nevertheless, North Kansas City still wanted to seize the property. According to Gilbertson, “They offered about a third of what the property is really worth. There was nothing actually offered for the business itself. Just the land and the building.” On January 14, the Missouri Court of Appeals ruled against North Kansas City, declaring “the city does not have the authority to condemn the Burger King property…for the purpose of eliminating blight.” The court also chided the city for relying on such authority from “‘vague or doubtful language.’”...more