Kelo Anniversary 2017 - Blair's Magazine

Kelo Anniversay 2017. Saturday June 24, 2017.

The 2005 Kelo decision resonated across America because Eminent Domain for Economic Development was already commonplace and familiar. The Blue Ridge Buck Saver was ready with full-page editorials.

Michigan Supreme Court had already reversed its 1981 Poletown decision to allow removal of 5,000 residents and schools, churches, businesses, etc. for a luxury automobile factory in Detroit, which flopped. Multiply by 100s and you have the vast ghetto which is modern Detroit. Yet politicians see no connection between the two, or why the same best practice would cause the same disaster elsewhere.

Today you must call it Economic Vitality or Economic Growth to reassure the public that your project is legal, not calling for eminent domain abuse. Albemarle Supervisor Ken Boyd learned that the hard way. Yet City politicians routinely call for eminent domain abuse using the name economic development. The local examples are invisible only to the local politicians and the media.

Friday was the 12th anniversary of the 5–4 landmark decision by the Supreme Court that reaffirmed the status quo. Neither due process nor public use is required to seize property. Urban renewal is the violation of the 5th Amendment. So is asset forfeiture, in addition to 4th Amendment violation. In both cases due process requires you be found guilty of something for a right to be ignored. Eminent domain was supposed to be the only exception.

Charlottesville parties in seized neighborhood the day after Eminent Domain ruling. Jun. 24, 2005.

I can’t imagine us justifying taking away someone’s property to sell another property. – Charlottesville Mayor David Brown.

UVa alumnus talks about eminent domain. Feb. 16, 2005. Charlottesville Independent Media.

Government should get out of the land business. – Steven Anderson, attorney.

The day after Valentine's and a week before the issue goes before the Supreme Court, an attorney for the Institute for Justice came to Charlottesville to talk about eminent domain abuse. Steven Anderson is a UVa alumnus and coordinator of the Castle Coalition. And about 30 people were in attendance. Anderson's speech focused on the 'public use' requirement of eminent domain, with a brief discussion of 'just compensation' issues.

He said eminent domain is a "sovereign power" that predates the Constitution. The king could take land for any or no reason. The Constitution limits this "despotic power," as the Supreme Court described it two hundred years ago.

He said there were 3 main exceptions to the public use restriction against private transfer of property:

Public necessity of extreme sort, such as canals and railroad.
Government retains strict control, such as utilities, power, water.
Facts of independent public sigificance.

This third group of exceptions include urban renewal, which the Supreme Court ruled Constitutional in the 1954 Berman v. Parker case in southwest Washington, D.C. At the time, cities were thought of as organisms with diseased or blighted parts. Justifications for blight removal were health, safety, and morals. In southwest D.C. there was an outbreak of a sexually transmitted disease. The approach to blight was not piecemeal. You could tear down a nice house next to a blighted house. But southwest D.C. is no better today than it was 50 years ago.

Anderson went on to say that the tide of eminent domain for private purposes may be turning. Last summer, the Michigan Supreme Court overturned its own 1981 decision to allow a neighborhood be cleared for a General Motors auto plant. This was the first case where economic development and increased tax revenue justified eminent domain for purely private use. This project also fell short of its promises. The Michigan court reversed itself in an 8-0 ruling. (Michigan Supreme Court rules: Economic development is not eminent domain. Aug. 2, 2004. Site defunct.)

Before the U.S. Supreme Court next Tuesday at 10am, attorneys for 7 people who own 15 properties in New London, Connecticut, will argue that their land should not be transferred to a "10,000 pound gorilla," Pfizer Pharmaceutical who has been thinking about moving their headquarters here since 1988. The locality is bound by the public use guarantee through the 14th Amendment of equal protection.

The attorneys will argue this seizure does not fit the 3 exceptions, continued Anderson. In this case, there is no pretense of blight. Since the city has no control over any aspect of the development and no recourse if developer's promises are not kept, the "lack of certainty" means it is not a public use taking. The attorneys will also argue that the compensation is not just. There are other losses such as memories, physical stress, relocation expenses, new mortgages because the compensation is not enough to maintain the standard of living. People have suffered illnesses and even died while condemnation negotiations have dragged on.

Anderson further said that, if the high court rules in favor of the city of New London, every property in the country is at risk. The people most at risk are "overwhelmingly minority and elderly." Friend of the court briefs have been filed by the NAACP, the Southern Christian Leadership founded by Martin Luther King Jr., the AARP, Rutherford Institute, farm bureaus, and others.

He listed a few "bogus blight designations." In one area, a house over 40 years old was defined as blighted. The White House would qualify. In Lakewood Ohio, the story on 60 Minutes Sep 28 2003 and replayed July 4 2004, a house was blighted if it didn't have an attached garage. Since then, a referendum has rejected the blight designation and the mayor was voted out of office. In Norwood, Ohio, the neighbors, who sold out early thinking no one would fight, have directed anger at the few holdouts against a shopping mall expansion.

The true anger is at the worse financial situation they now find themselves in, having to take out second mortgages to sustain a lower standard of living. He reported that "clear cutting" is widespread in Philadelphia and Camden just across the river. In Riviera Beach, Florida, the city wants to transfer 1,700 acres where 5,100 people live. The Southwest Illinois Development Authority rented out its eminent domain power. You could pay them to take someone's land for you and the agency even used the words "private use."

In his final remarks before the question period, Anderson said "government should get out of the land business."

[Hawkins] asked, if the court rules in favor of property rights, what happens to land seized 30 or 40 years ago, that remains open space. Still nobody wants to buy the property because of the intense controversy. Anderson said it's too late. The court's decision will not undo what's already happened. There would have to be legislation to have the land returned to its rightful owners.

The 2012 Property Amendment. Source Sep 9 2012.

That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use.
No private property shall be damaged or taken for public use without just compensation to the owner thereof.
No more private property may be taken than necessary to achieve the stated public use.
Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms "lost profits" and "lost access" are to be defined by the General Assembly.
A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services.
In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property.
The condemnor bears the burden of proving that the use is public, without a presumption that it is.

The 2012 Amendment passed with 75% statewide. The weakest support at 60% were urban liberal areas with a history of eminent domain abuse and associated problems. Just compensation is strengthened. Blight is broadened to public nuisance.

Seized property sits vacant nine years after landmark Kelo eminent domain case. Published March 20, 2014. Fox News.

"Seized property sits vacant nine years after landmark Kelo eminent domain case. The 90-acre [neighborhood in New London, Connecticut] once earmarked for office buildings, luxury apartments and a new marina, remains vacant. Seven residents who fought all the way to the Supreme Court to keep their working-class homes in the city's Fort Trumbull section have only their memories and whatever remains of the money they were forced to accept. In the landmark 5-4 ruling [...] Previously, eminent domain had been seen as limited to cases involving projects deemed as benefiting the public, but not a private economic interest."

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