Constituent Service, New London-Style: Let the Evictions Begin!

Tim Cavanaugh | June 6, 2006

The city council of New London, CT voted 5-2 last night to begin evictions of the two remaining Fort Trumbull homeowners whose rights are standing in the way of a lucrative development deal. The nay votes came from council members Bill Cornish and Charles Frink, both members of the One New London party that was formed last year in reaction to the Fort Trumbull takings.

Of the original seven plaintiffs in the case Kelo v. New London, only three were left as of yesterday—and one of those, Bill van Winkle, owner of three multi-unit properties, reached a separate settlement with the city just before the council meeting. Michael Cristofaro says he will continue to fight, while Susette Kelo has made no comment. Cristofaro gives Reason some of the numbers in his own case:

"The decision yesterday also included use and occupancy fees going back to November 2000, which total about $97,000," he says. "The figure for back taxes is $18,000 or $19,000. And they're offering me $150,000 for the house. So after taxes I'd probably walk away with about $10,000 or $12,000 for my home."

Plaintiffs' attorney Scott Bullock tells Reason the council ignored a compromise proposal by Governor Jodi M. Rell (in which the homeowners would have been given back their deeds and the city would retain right of first refusal if the homes were ever sold). "This compromise was accepted by all the homeowners, and endorsed by the vast majority of the public," says Bullock, "and the city council rejected it just as an exercise in raw power." Even the usually sunny Bullock concedes that the prospects are grim for the two holdouts, though there is still a possibility of state intervention. (The state of Connecticut has funded most of the Fort Trumbull redevelopment so far.)

"I don't feel like an American citizen today," says Cristofaro. "At last night's meeting the council admitted that they do not need the parcel. They're on an ego trip and they want the property brownfielded before they go to a developer. So far the only thing they've even started to work on is this Coast Guard Museum that the state put $15 million into. I'm sure I could convert my house into the Eminent Domain Museum and I'd get more visitors."

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|6.6.06 @ 3:38PM|#

I'm sure this will revitalize our state's economy, as tourists originally planning to visit New York or Boston decide instead to see the Coast Guard museum in New London.

The city also boasts a fine drug store where you can purchase all of your hair-care and cosmetic needs in one convenient place.

|6.6.06 @ 3:45PM|#

Do you suppose people whose homes are taken for a bridge abuttment are any better off?

|6.6.06 @ 3:48PM|#

Ah, joe, always so good to see you standing up for the little guy.

|6.6.06 @ 4:17PM|#

The sinister angle of the Kelo decison is that the USSC has broadened the takings analysis beyond "public good" to "government good". A bridge abutment equally deprives people of their property, but a bridge may have several redeeming public goods: encourages commerce, allows for emergency services, gets you the hell out of Connecticut, etc.
Here, though, the USSC said that a government could take solely for the opportunity to increase tax revenues related to a certain piece of property.
And we all know how government is always careful in how it spends taxpayers treasure! ie: I've got five bucks that says new city council offices are already on the way for these fucking communists.
I don't disagree with your basic point joe, it is just that the justification for this decision is so weak, I take any opportunity I can to rail against it.

|6.6.06 @ 4:22PM|#

Screw the bridge abuttment. I say if whoever wants your land for a purpose other than what you're currently using it for, they need to pay you fair market value for it. Does that mean that some people will be able to effectively block certain projects, both public and private, by asking for ridiculous amounts of money for their land? Sure, but this is too much.

It's attitudes like those on the New London city council that makes it seem as though every beaurocrat is an egotistical, thieving, scumbag.

Oh, wait...

|6.6.06 @ 4:25PM|#

Hey, make fun all you want but I've been to the Coast Guard Museum. Back in the 3rd grade, it's the kind of thing my dad is into.

And let me tell you, the giant lego model of a Coast Guard ship they had on display was well worth the trip.

|6.6.06 @ 4:29PM|#

It's just awful, awful, awful. Both Mrs. Hugginkiss and I sent separate emails to Rell asking her to step in and help these people -- taking their homes is bad enough, but the fines and penalties are just atrocious -- and we received back the following boilerplate:

Governor Rell's Statement on
New London Eminent Domain Case

Governor M. Jodi Rell today issued the following statement regarding the New London/Fort Trumbull eminent domain case:

"This situation has gone on far too long -- too long for the City of New London and too long for the remaining Fort Trumbull occupants.

"I believe that the development of the entire peninsula is critically important to the economic welfare of the city and the region. At the same time, I have remained sympathetic to the occupants. We must move forward with the Fort Trumbull project, and I have directed the Department of Economic and Community Development and mediator Bob Albright to redouble their efforts to bring about a resolution, which is long overdue.

"I regret that the General Assembly has been largely silent on the overall issue of eminent domain, despite the fact that they called a special session last fall and were in regular session for three months earlier this year. In the end, the only action taken by the legislature was the creation of an ombudsman for eminent domain issues within the Office of Policy and Management."

So she's "sympathetic" but the homeowners better get the f*ck out ASAP because the project must move forward. Everybody is against these poor people.

The CRAZY thing about this case which I don't think non-Nutmeggers realize is that New London has a rundown 19th-century downtown filled with empty storefronts. But rather than sink some money into that and restore it, they knock down a residential neighborhood next to the Pfizer complex.

|6.6.06 @ 4:30PM|#

I think a larger point is how does one set the fair market value. What about the non-defineable value of familiarity or your growroom in the basement that you've put your blood and sweat into for years?

As I see it, the issue isn't whether or not a government must pay FMV for a property, but rather what government aims justify the offer in the first place?

|6.6.06 @ 4:39PM|#

"I say if whoever wants your land for a purpose other than what you're currently using it for, they need to pay you fair market value for it. Does that mean that some people will be able to effectively block certain projects, both public and private, by asking for ridiculous amounts of money for their land? Sure"
This is a non sequitur- if they need only pay fair market value (which is the legal standard now anyway), then the owner cannot block the project by asking for ridiculous amounts.

|6.6.06 @ 4:40PM|#

Joe -- They're no better off, and in that sense all government takings are unfair. However, allowing government takings for essentially any purpose by another more powerful (economically, politically, socially) person/group who can control the political going-ons to their advantage and then make use of government authority to fulfill their plans is clearly far worse.

First of all, the potential number of takings for land that would remain in public ownership, like bridges, parks, etc. is much smaller than the potential number of takings now that any rich person can take any poor person's house to put a more expensive condo on it.

Secondly, even takings that remain in public ownership, or at least in a state of use that is clearly public (such as common-carrier use), are constitutional, if nothing else, while this form of seizure is admitedly unconstitutional as we would understand it (though not as he would understand it, obviously), if you read Justice Kennedy's decision. Specifically, he notes that not only will the general public not directly benefit from whatever happens on the seized land, but that in some cases the general public will be denied access to the new businesses that are going up -- in other words, there is not even a claim of "public use." Kennedy and the other members of the court who agreed with him are perfectly content to overlook the unambiguous word use and mentally substitute benefit, as if those are even near-synonyms -- not even close!

Finally, by restricting government takings to a strict standard of public use/ownership, you also limit the incentive to abuse/overuse eminent domain itself. It is true that the government likes to do things just to enhance/demonstrate its own power, and in that sense there are unfair eminent domain seizures even for property than will remain strictly public. But the government's tendency to take land like this does not come close to matching the desire of the broader populace to make use of each other's land (in this country at least, for now). Now, there's nothing wrong with wanting to use things other people own -- our commerce system is based on needing something someone else has. However, by empowering the already-powerful with government sponsorship to transfer ownership of property without the consent of the previous owners, the Kelo situation basically gives legal sanction to a widening wealth gap and moves us toward a society in which the wealthier you are the more secure you can be in your rights as an America (not that we don't have some of that already). There are all sorts of dangerous closed loops of incentive involved in situations like Kelo's involving city officials and developers that remove a lot of residents from the political frame of relevance.

|6.6.06 @ 4:43PM|#

I'd visit the Eminent Domain Museum.

Speaking of which, we've got a whiff of this on the other coast, too.

It's the United Nerd Collection Fund. Because Paul Allen's money and time is a terrible thing to waste.

|6.6.06 @ 4:45PM|#

When's the eviction? About 10,000 of us who believe this is a travesty ought to gather outside and make the New London cops arrest us for disorderly conduct, or whatever. The fines
would be worth it. And maybe burn a State of Ct. flag or too while we are at it.

theOneState|6.6.06 @ 4:45PM|#

Do you suppose people whose homes are taken for a bridge abuttment are any better off?

Thanks for cheering everyone up. You're right, of course. These people are no worse off than anyone else who has been forcefully removed from his house and dutifully compensated the value of his property minus any applicable fees.

|6.6.06 @ 4:49PM|#

Geof - I wasn't clear...I'm saying that I don't think the government should be able to use it's coercive powers to tell people when they need to sell their land, and for how much. I'm saying that if that bridge abuttment really needs to be built, the government can try to get someone to sell their land, and can even make arguments as to why that person should sell their land. But I don't think that the person should be forced to if they don't want to.

Maybe they have a sentimental attachment to their property, and not even FMV will be enough to get them to sell. Maybe they're just claiming a sentimental attachment to the land in hopes of getting more money for it. I don't care either way, I don't think. It's their land, they can do what they will with it.

Ventifact|6.6.06 @ 4:52PM|#

As I see it, the issue isn't whether or not a government must pay FMV for a property, but rather what government aims justify the offer in the first place?

Right, that's the problem with Kelo v. New London. The government aims have at least two fundamental flaws: 1) they are basically limitlessly broad (any incidental public benefit), opening the door to a huge degree of misuse and 2) they are a clear and explicit violation of the constitutional law governing these situations.

|6.6.06 @ 4:53PM|#

When's the eviction? About 10,000 of us who believe this is a travesty ought to gather outside and make the New London cops arrest us for disorderly conduct, or whatever.

Hell yeah. I've never engaged in a protest or any kind of likewise political activism, but I'd go to jail for that. Count me in.

|6.6.06 @ 5:03PM|#

Ventifact, I agree with this:

"However, allowing government takings for essentially any purpose by another more powerful (economically, politically, socially) person/group who can control the political going-ons to their advantage and then make use of government authority to fulfill their plans is clearly far worse."

I would like to have seen the court address this issue from a due process angle. I'm not sure exactly how, but saying "any old plan will do," regardless of what's in it or how it was produced was a mistake.

BTW, "any rich person can take any poor person's house to put a more expensive condo on it" is not an accurate description of the ruling.

Also, there is a public USE in this case - the redevelopment of the property. As the regulatory takings decisions demonstrate, redevelopment is a use. Consider the owner of a 10 acre piece of woodlands. He wants to develop it into a townhouse community. The government says he cannot. He can go on the land, and he retains ownership, and he has no intention of retaining ownership of any of the land when the project is done. Has he been deprived of its USE? If you agree that he has, then you have just admitted that redevelopment is a use.

Geof, "FMV is what a willing arms length buyer would pay for it in the open market." Technically, FMV is an estimate of what a willing arms length buyer would pay. We can't actually know what such a buyer would pay if the deal is not transacted.

theOneState, agreed. Which means that those people using the "think of the little guy" to draw a line at public vs. private disposition of the land are engaging in a fallacy.

|6.6.06 @ 5:04PM|#

Lowdog, owning land doesn't make it your little empire. You're still subject to the public's interest. We can debate where that interest lies exactly, but you wouldn't argue that anything one does on or with his land cannot be regulated, would you? The same principle goes to eminent domain- the interests, rational or irrational, of one individual shouldn't be allowed to outweigh the much greater interest of many when it comes to something as fungible as land.

Ventifact,
"they are a clear and explicit violation of the constitutional law governing these situations."
Are you some kind of constitutional lawyer? Where do you get off making these kinds of claims?

Hey Geof, I will try and be more clear that I am just trying to bust on Lowdog's non-point next time.

Ventifact makes a great point in his thesis: it is creepy, but plausible that Kelo could be used as a new vehicle for re-districting.

|6.6.06 @ 5:08PM|#

Sorry cecil, the server keeps reposting different versions of my post since I tried to go back and fix it.

|6.6.06 @ 5:09PM|#

Ventifact, the public purpose claimed in this case - economic development - has been upheld as a satisfactory public use since the beginning of the Republic and before. Under the Mill Acts, the power of eminent domain was used to allow one property owner to flood the property of another, because the construction of saw- and grist mills would accomplish the vital public purpose of promoting economic development.

Sniff, I think you need to be a little bit more originalist in your reading of the Constitution. ;-)

|6.6.06 @ 5:11PM|#

|6.6.06 @ 5:18PM|#

David, probably yes. In most states mortgaging banks have a superior claim to condemnation proceeds.

Timothy|6.6.06 @ 5:21PM|#

Because Paul Allen's money and time is a terrible thing to waste.

Well, it's more like there's hardly any left once he's done with it.

Lowdog, owning land doesn't make it your little empire.

Fuck yes it does. Things which cause demonstrable harm to others (say pollution, we call those "externalities") can be regulated. Everything else is fair damn game. If you want the bridge (or the stadium or the Pfizer building), offer the property owner enough to make him want to sell or build the bridge some other place.

|6.6.06 @ 5:25PM|#

Certainly there might be things that society can agree upon concerning the limits to what you may do with your land. But these should be very specifically and narrowly defined.

I often say things without making a point - hang around here long enough and you'll see that very clearly. :)

|6.6.06 @ 5:39PM|#

Timothy, no it doesn't. And I have the law, the Supreme Court and a couple hundred years of constitutional precedent on my side

|6.6.06 @ 5:45PM|#

Geof,

What's the first (chronologically speaking) piece of caselaw that you are going to cite?

|6.6.06 @ 5:52PM|#

This "fair market value" crap has got to go. The only "fair market value" of a piece of property is the price at which the owner agrees to part with it uncoerced. For truth in labeling FMV should really be called someting like: "what the government deems your property worth."

VM|6.6.06 @ 5:58PM|#

Jeebus, PL, now he's (Geoff) not gonna answer, because he's out internet researching his obnoxious claim.

he's probably as big a quibbledick jackass as c'think is with his imaginary friend and what that friend tells him to think.

|6.6.06 @ 5:59PM|#

PL-Redux,

If I were Geof and feeling a bit peckish, I'd cite Johnson v. M'Intosh, 21 U.S. 543 (1823), which established the "right of conquest" in American jurisprudence. Here's a quote from the case:

Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.

See? An excellent place to start :)

|6.6.06 @ 6:05PM|#

Geof:

Leave alone for a moment that Kelo is the law. We can all see that Kelo is the law. You don't see anything wrong here? Nothing wrong with going after people who got a case all the way in front of the USSC such that they have property seized for a net loss?

This:

"The same principle goes to eminent domain- the interests, rational or irrational, of one individual shouldn't be allowed to outweigh the much greater interest of many when it comes to something as fungible as land."

is a scary broad premise for seizure. The whole point of private property is to draw a line beyond which the public interest is limited. Public interest is 6/10 of your neighbors wanting to divvy up your house among themselves.

|6.6.06 @ 6:10PM|#

The CRAZY thing about this case which I don't think non-Nutmeggers realize is that New London has a rundown 19th-century downtown filled with empty storefronts. But rather than sink some money into that and restore it, they knock down a residential neighborhood next to the Pfizer complex.

Don't forget to mention that between the soon-to-be-closed sub base and the little-used Ocean Beach, the city also has plenty of unused waterfront property, without having to go after the Fort Trumbull homeowners.

Hell, I wish the state would just cut through the hypocritical bullshit, come right out and amend the Constitution to say "You can only keep your property until we find a wealthier person who wants it and agrees to pay more taxes on it." I advise all non-millionaires in Connecticut to only buy property on abandoned toxic-waste dumps, which nobody else will ever want.

|6.6.06 @ 6:14PM|#

Pro Libertate,

Wow, you learned something in property. :)

|6.6.06 @ 6:18PM|#

VM,

Jeebus, PL, now he's (Geoff) not gonna answer, because he's out internet researching his obnoxious claim.

That's ok IMHO. Researching stuff can often at the very least make your opinion more nuanced, and may even change your mind.

he's probably as big a quibbledick jackass as c'think is with his imaginary friend and what that friend tells him to think.

crimethink and I have had our differences, but he's not a jackass.

|6.6.06 @ 6:41PM|#

I am not defending Kelo- none of my posts have suggested that I think it's right. I'm only defending eminent domain as a general principle. Many posts here suggest that eminent domain is NEVER proper, no matter the government's use. For example:
"If you want the bridge (or the stadium or the Pfizer building), offer the property owner enough to make him want to sell or build the bridge some other place."
This type of eminent domain (where the use is clearly public) is explicit in the Constitution and has been upheld by the SC from the beginning (I'll have to go find my property book if you really want an early case on this, but I recall one that had to with seizing land near a harbor- I can't believe you would really contest this point though). This is not an obnoxious claim is that eminent domain in any form is unconstitutional since it is so clearly incorrect.

|6.6.06 @ 6:42PM|#

"This is not an obnoxious claim is that eminent domain in any form is unconstitutional since it is so clearly incorrect."
Sorry, should read- the only obnoxious claim is that eminent domain in any form is unconstitutional since it is so clearly incorrect.

|6.6.06 @ 6:48PM|#

Geof,

The court decisions that I know of dealing with this issue at that early date are all state decisions. I guess the reason for that is obvious (no 14th amendment yet).

|6.6.06 @ 7:04PM|#

"Also, there is a public USE in this case - the redevelopment of the property. As the regulatory takings decisions demonstrate, redevelopment is a use. Consider the owner of a 10 acre piece of woodlands. He wants to develop it into a townhouse community. The government says he cannot. He can go on the land, and he retains ownership, and he has no intention of retaining ownership of any of the land when the project is done. Has he been deprived of its USE? If you agree that he has, then you have just admitted that redevelopment is a use."

I'm confused here, joe. I don't think anyone is arguing that the land isn't being used. It's that the use isn't public in any sort of natural sense of that word. What did you mean by the above paragraph?

|6.6.06 @ 7:10PM|#

joe,

Sniff, I think you need to be a little bit more originalist in your reading of the Constitution.

The Mill Act decisions dealt with state constitutions, laws, etc. not the "Constitution." By the "Constitution" I assume that you mean the federal constitution. In other words, they may be persuasive, they aren't controlling precedent.

VM|6.6.06 @ 7:19PM|#

PL: you're right. sorry about that. statement retracted. thanks for the check :)

|6.6.06 @ 7:27PM|#

I've been trying to remember the particular communist slogan that describes this, but all I'm drawing is "One for all and all for one". How does that go again?

PL, you're right of course that there is not much federal jurisprudence pre-14th amendment and prerailroad. but i do recall reading a couple cases from the very early 1800s, specifically one about land near a harbor. this is natural since that was clearly a federal responsibility from the start. you aren't disputing that SOME form of eminent domain has been recognized as constitutional from the founding though, right? i was just responding to Timothy's point that no form of eminent domain could be constitutional, which is quite clearly absurd.

|6.6.06 @ 7:31PM|#

Ok, let's return to first principles.

An power of the sovereign long recognized in the historical record (I think in both the civil law and common law systems) is that of eminent domain (ED). In the U.S. we have two express limitations on ED by the 5th Amendment:

[1] No person shall be ... deprived of ... property, without due process of law; [2] nor shall private property be taken for public use, without just compensation.

Now let's assume that this applies to state actions via the 14th Amendment.

Let's also put aside any due process claims as well.

What are we left with then? We are left with a question about the phrase "public use."

The traditional use (and the one recognized in decisions like Ryerson v. Brown (1877) - another state court decision) was that ED existed to acquire "rights of way" for highways, railroads, etc. Indeed, even the grist mill example joe gives falls within this traditional idea of ED. What happened then? A series of decisions - notably Hawaii Housing Authority v. Midkiff (1984 - SCOTUS), Poletown v. Detroit (Michigan - 1980) - etc. expanded the limits of ED. And like the dissent in Poletown stated, we are still living with the consequences of these expansions.

|6.6.06 @ 7:33PM|#

VM,

We need to spread the love man. :^)

Geof,

you aren't disputing that SOME form of eminent domain has been recognized as constitutional from the founding though, right?

Ahh, it is right there in the 5th Amendment.

|6.6.06 @ 7:38PM|#

PL, good, you seemed sane to me. Timothy on the other hand...

|6.6.06 @ 7:46PM|#

Geof - I don't think Timothy was arguing about the constitution one way or the other. I know I wasn't.

I'm talking about the fact that I think it's wrong to take a person's private property without a damn strong reason, and one that is previously defined.

As PhilLip states concerning Poletown, we are living with the consequences of liberal readings of the 5th, and I think that needs to be rolled back.

I am not a lawyer or con law scholar, so I don't know all the particulars about jurisprudence, etc. I just know that to deprive a man of his property is a way of depriving him of his liberty, and I don't like it.

Of course, my opinions matter little to anyone, really, so feel free to mock or ignore me as you see fit. I'll gladly return the favour. :)

Geof,

I am certain that Timothy is not insane. Misinformed perhaps.

|6.6.06 @ 7:49PM|#

Lowdog,

That seems to me to be a perfectly acceptable position (and if that is what Timothy was arguing, ditto to him as well).

|6.6.06 @ 7:50PM|#

I don't get how "use fees" can absorb the bulk of the value of the house. If all you get is FMV, then all the government should get should be Fair Market Rent from the time it's actually condemned.

|6.6.06 @ 7:59PM|#

Pseudo-PL, I confess, that was the very first case we had in Property Law. That case messed up my brain--I actually remembered the name and everything after 13 years without even resorting to Google :) Of course, it isn't an eminent domain case. . .not really, anyway.

ED was not a huge issue until the last thirty years or so. When the Supreme Court went batshit insane. In fact, I'm looking for them to revisit Johnson any day now.

Joe -- I agree with you that a big part of the mistake was saying that "any old plan will do" -- that kind of broad authority only ends up misused.

Also, it's true that "'any rich person can take any poor person's house to put a more expensive condo on it' is not an accurate description of the ruling," but I was trying to summarize the ultimate effect of the ruling, which was that public benefit can now be claimed by giving use of land to socioeconomically higher people. And some of those houses that New London seized are going to be turned into upscale condos for rich residents.

As for your statement on "public use," I have the same confusion NCCU3L has. Certainly the land is going to be used, but even Justice Kennedy noted in his ruling that there would not be public use, only public benefit (and incidental at that): there will be private use, public benefit (theoretically), but never public use, which is what the Constitution requires. As for my statement on "constitutional law" -- I was being a blowhard and should have just said "the Constitution."

As for the Mill Acts, they've come up in these discussions before and as far as I've found out there's really no comparison. First of all, they were held to fairly strict standards of public benefit, like what we do with common carriers today. For example, only non-navigable streams could be dammed, so they weren't disrupting preexisting or even potential future use of the river by the general public ("navigable" streams are public property by federal law). Juries (not bureaurocrats) determined compensation to be paid to property owners. In addition, "the [mill owners] relinquished their common law right to sue for trespass, for punitive damages, for nuisance, or to seek an injunction." These standards were removed by the Massachusetts courts in 1827, but by 1830 the Mill Acts were repealed anyway because people didn't like them. So I don't see the point in using the Mill Acts as an example of why Kelo-style takings are nothing new -- the Mill Acts did not allow Kelo-style takings (in which only incidental benefit to the public is traded in exchange for normal, fully private use of property), and they were repealed because the public rejected them. (See http://eh.net/bookreviews/library/rothenberg.shtml. How do you put make an html link, by the way? That makes you look a lot smarter.)

And Jason -- quite right to say general public good "is a scary broad premise for seizure." It by itself is a scary broad premise for government in general, because it allows you to justify whatever you do (like spying on your own citizens...), which is why certain rights, though they can be inconvenient in many specific cases, must be set forth before we allow the government to start doing its thing, or as you said, "to draw a line beyond which the public interest is limited," since that could just be "6/10 of your neighbors wanting to divvy up your house among themselves." All this was very clearly stated in the Bill of Rights:

"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added."

And after all, as the Bill of Rights also says, having an explicitly limited government "will best ensure the beneficent ends of its institution" by "extending the ground of public confidence in the Government." Right now, with Kelo v. New London, the only thing we can have confidence that the government will do is conspire with rich developers to take whatever nice things normal people have managed to earn for themselves. The authors of the Bill of Rights have given us ample warning that even the promised incidental economic benefit from the New London development would not be worth it in the long run.

Oh, and Phil -- The Bill of Rights also contains guidelines for eminent domain, so there was law regarding the matter before the 14th Amendment: "nor [shall any person] be deprived of [...] property, without due process of law; nor shall private property be taken for public use, without just compensation." The language, interestingly, implies that it was simply inconceivable that property would be seized by the government for anything but public use.

|6.6.06 @ 8:07PM|#

Ventifact,

As far as I know, the Fifth Amendment was only applied to the states in the last decades of the 19th century.

|6.6.06 @ 8:08PM|#

Ventifact,

Or rather, the provisions of the 5th Amendment were concerned with.

|6.6.06 @ 8:12PM|#

Here's a very nice summary of the national eminent domain power (which lay dormant until 1876, so we got 100 years of freedom :)).

Hak is right, of course, to point out that there was no incorporation doctrine before the ratification of the 14th Amendment. Not that state constitutions didn't limit ED--I'm sure that at least some did.

|6.6.06 @ 8:18PM|#

Phil -- Good point, the redefinition of "public use" has been occurring for some time (another earlier case to look at is Berman v. Parker (1954)). So I guess it's an interesting question of how special Kelo is in its i) reasoning/basis and ii) practical effects.

|6.6.06 @ 8:21PM|#

Ahh, good point too, that the 5th Amendment existed from the start but wasn't so relevant until the 14th... good to know.

|6.6.06 @ 8:29PM|#

Ooh, got the html link thing figured out.

|6.6.06 @ 8:34PM|#

Pro Libertate.

Most state constitutions explicitly limit ED as the federal constitution does, using the same or roughly similar language.

|6.6.06 @ 8:55PM|#

There is far too little discord on this thread! :)

|6.6.06 @ 9:01PM|#

Philphadabadabadab,

Of course you are correct about the Mill Act cases being in state court. But my snarky-assed point was about "origninalism," meaning the original understanding of the term, and the broad uniformity in those state rulings about mill ponds demonstrates that there was broad consensus among the era's legal scholars, especially since most (all?) of the states had equivalent passages in their own constitutions.

"I'm talking about the fact that I think it's wrong to take a person's private property without a damn strong reason, and one that is previously defined." See, now you're talking about Due Process, which is where I think the reform needs to focus.

|6.6.06 @ 9:11PM|#

joe,

But my snarky-assed point was about "origninalism," meaning the original understanding of the term, and the broad uniformity in those state rulings about mill ponds demonstrates that there was broad consensus among the era's legal scholars...

Hmm, you'd have to consult the works of folks like Joseph Story to make that sort of claim stick. I've read portions of his Commentaries... (the leading authority after Blackstone fell out of favor) but not the portions concerning E.D. (if they exist).

...especially since most (all?) of the states had equivalent passages in their own constitutions.

Like I wrote, that is at best persuasive authority, and you'd have to flesh out the historical record to see if the Mill Acts were in line with the understanding in 1791. Things can change rather fast. As an example of that note that the resurgence of fundamentalist religious feeling in the early republic was directly counter to the ideas about religion held by a large portion of the main revolutionary figures.

Suffice to say, I think people find what they want in the historical record on this issue.

"I'm talking about the fact that I think it's wrong to take a person's private property without a damn strong reason, and one that is previously defined." See, now you're talking about Due Process, which is where I think the reform needs to focus.

You must be addressing this to someone else, because I didn't write that.

|6.6.06 @ 9:18PM|#

NCU33L, Ventifact,

To answer your question, think of the definition of the term "use" as in the phrase "land use." Are residential uses allowed in the Industrial B Zone? No, ma'am, you'd have to get a variance. Redevelopment, or development, is a use to which land can be put. Lucas, in the famous Barrier Island case that gave us the modern Regulatory Takings doctrine, wanted to put his land to use as a development site. It didn't matter whether he would build the homes himself, or sell it off to another developer in parcels. Similarly, New London wanted to put the land in Ft. Trumball to use as a redevelopment site. I realize this isn't what Kennedy wrote. It's what I'm writing.

Ventifact, are you really claiming that the mill pond the powered a lumber mill in 1799 was subject to greater regulation in the public interest than a restaurant, apartment building, or shop? If so, I've got a plumbing inspector, a fair housing officer, and a conservation agent who'd like to have a word with you. Also, do you really want to take the position that it is the degree of regulation that the government puts on your land or business that makes it a public use? Finally, I'll point out that, while the mills had to be open to the public, the ponds - that is, the land that was actually taken - did not. And the writers of the federal Constitution produced that language while state Mill Acts were already in place and being used.

|6.6.06 @ 9:19PM|#

The public use language of the 5th has been viewed very deferentially by the USSC for some time. The court has often tied the eminent domain power to the police power of the states, (some states trump this liberal reading via their own constitutions, see Petition of City of Seattle, 96 Wash.2d 616)that police power being confined the regulation of public health, safety, welfare, and morals.
I am not a conLaw scholar either, but I cannot recall any case where the police power extended to increasing tax revenue.

Oopse, Ventifact wrote that.

|6.6.06 @ 9:27PM|#

cecil,

I am not a conLaw scholar either, but I cannot recall any case where the police power extended to increasing tax revenue.

I remember a case from Con Law dealing with that issue or something similar. I'd have to search through my textbook.

|6.6.06 @ 9:33PM|#

joe,

No problem.

|6.6.06 @ 9:46PM|#

cecil,

The goal of an economic development plan (a legitimate one, anyway) is not to increase tax revenue, but to create an economically sustainable neighborhood/town/whatever. This is the reasoning behind the blight laws - that the creeping vacancy and disinvestment is preventing a neighborhood from functioning and developing in a healthy manner. There are thousands of low-income residential and commercial areas that are perfectly healthy and stable.

A Substantive Due Process-based Kelo decision would have scrutinized the redevelopment plan to find out whether it was addressing real problems on the ground, or was merely about replacing cheaper buildings with more expensive ones to line the city's (or worse, the politicians') pockets.

|6.6.06 @ 9:54PM|#

Joe --

[A]re you really claiming that the mill pond the powered a lumber mill in 1799 was subject to greater regulation in the public interest than a restaurant, apartment building, or shop?

If I accidentally made that claim then I chose my phrasing badly (so no). What I mean to say is that the mills' status under the law was not the same as a normal private business or piece of private property, as laid out above. (So then the answer is also no to the question do you really want to take the position that it is the degree of regulation that the government puts on your land or business that makes it a public use? oooh I shudder at the thought.)

Finally, I'll point out that, while the mills had to be open to the public, the ponds - that is, the land that was actually taken - did not. Well, I showed already that it was not illegal to trespass on land submerged by the mill dams. Perhaps my source is incorrect. Furthermore, according to what I've read (and perhaps this varied state by state more than I know), only non-navigable waterways fell under the Mill Acts. Navigability of a waterway is legally a very broad concept, and includes basically any actual or even potential human use of a waterway including just floating logs downstream. So it seems to me that the public would not have been previously using whatever streams were dammed under the authority of the Mill Acts. And non-navigable streams are private property and so it doesn't seem odd that their extended forms (millponds) would also be private, especially given that owners could not prevent you from trespassing on them. Along those lines, one thing I'd be interested in is finding out about fishing rights on the millponds, as those might have been somewhat more materially meaningful back then as compared to today when they would be basically recreational. I wonder if the public had free use of those ponds for that purpose.

I do have to wonder, regarding navigability, if the definition I'm familiar with is not the same one referred to in the Mill Acts, because it would make a lot more sense to put a mill on a stream that you could actually use to float logs to the mill... hmm.

|6.6.06 @ 9:59PM|#

joe, I am very interested in your substantive due process argumemt, as I believe under the S.D.P economic regulation rubric that this law would pass deferential rational-basis review ,please elaborate or point me to a prior post.

As far as my assertion that the New London benefit was to raise tax revenue, I forgot that this blog is actually populated by thinking, rational people. i was sound-byting, my apologies...but in my defense, the words of Justice Stevens:

The NLDC [***10] intended the development plan to capitalize on the arrival of the Pfizer facility and the new commerce it was expected to attract. In addition to creating jobs, *generating tax revenue*, and helping to "build momentum for the revitalization of downtown New London," id., at 92, the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.

talk to me about substantive due process here.

|6.6.06 @ 10:07PM|#

cecil,

Oh definately on the rational basis test. Otherwise you'd have to create a whole new area of substantive due process to apply "strict scrutiny" to. That would fly before the Supreme Court about as well as a lead duck.

|6.6.06 @ 10:10PM|#

Ventifact,

That's why I think what the Mill Acts concerned was much more a kin to a regular old right of way than anything like "urban redevelopment."

|6.6.06 @ 10:13PM|#

joe, I see your point, like a Midkiff analysis, the Court there basically created a means/ends test. But the Court there seemed to say that any "ends" spouted by government are "public' because the government came up with them, (circular at best), and that the "means" only have a loose relationship to those stated public ends.
Really, this thread has helped realize that Kelo wasn't that revoltionary after all, the court has set the stage for the utter lack of limits on government's use of the "public use" exception in the Fifth A.

|6.6.06 @ 10:17PM|#

cecil,

The thing is that Kelo may not even be around in the next few years; or rather, it may be overturned or marginalized in a future decision by the Court.

|6.6.06 @ 10:18PM|#

cecil,

A majority has Thomas' penetrating dissent to hang their hat on at the very least.

|6.6.06 @ 10:23PM|#

I only see one direction that the marginalization of Kelo could go. I mean, how could the USSC further broaden the definition of public use? Unless a regulation actually states that it is intended to benefit one private party at the expense of another, what regulation in this realm won't fly?
If you are thinking that the USSC might curtail the breadth of Kelo, I might buy it given the realtive shift to the right of the court, but with Rehnquist and OConnor in the dissent in Kelo it really seems like it is up for grabs.

Roberts seems like a guy that craves order, precedent and unanimity...in my humble view, his court is unlikely to overturn the long standing erosion of the public use doctrine.

|6.6.06 @ 10:28PM|#

cecil,

Oh, there are lots of ways to cut the legs out from under this decision; just limit it to the specific facts of the case for example.

PL- right you are about j Thomas, his eloquence has never been lent to a greater travesty of assbackwards interpretation:

"If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power -- for public or private uses -- then it would be surplusage." J. Thomas, dissent in Kelo.

You have gien me hope again PL. :)

Rich Ard|6.6.06 @ 11:03PM|#

Oopse, Ventifact wrote that.

Comment by: joe at June 6, 2006 09:19 PM

---

joe,

No problem.

Comment by: Phileleutherus Lipsiensis at June 6, 2006 09:33 PM

I think that just the fact that I'm seeing this cordial exchange - on a Kelo thread - is enough to convince me there must be something to this whole "6/6/06" thing.

|6.6.06 @ 11:12PM|#

joe-

I'm still confused. I agree that redevelopment is a use to which property may be put. I don't understand why that's relevant to the issue of whether that use is a public use or not. Are you saying that it's a public use because redevelopment is a zoning classification, and since zoning is done by a (presumably) public body, such use for redevelopment is a public use? If not, what are you saying?

|6.6.06 @ 11:33PM|#

Rich Ard,

&@&&%$^%$$%#@!

:)

|6.7.06 @ 1:35AM|#

Also, there is a public USE in this case - the redevelopment of the property. As the regulatory takings decisions demonstrate, redevelopment is a use. Consider the owner of a 10 acre piece of woodlands. He wants to develop it into a townhouse community. The government says he cannot. He can go on the land, and he retains ownership, and he has no intention of retaining ownership of any of the land when the project is done. Has he been deprived of its USE? If you agree that he has, then you have just admitted that redevelopment is a use.

is it just me or did joe just checkmate himself.

the logic joe postulates dictates either joe is completly wrong about land use regulation or he is completly wrong on eminate domain.

so to avoid this logical trap he abondans logic and takes the possition that land use regulations are absolute and eminate domain is without limit.

Nice to see what side you error on there buddy.

|6.7.06 @ 2:18AM|#

Speaking of which, we've got a whiff of this on the other coast, too.

It's the United Nerd Collection Fund. Because Paul Allen's money and time is a terrible thing to waste.

Nice pass, zeroentitlement.

I'll carry the ball for a second. Nickels, Vulcan, and the entire apparatus of Seattle City Government- which is THIIIS close to losing its caps privs has a damned NUT for South Lake Union. I'm thinking that if I were a property owner down there who had no designs on selling, I'd be very, very VERY nervous about right now.

Oh, the economic development 'plan' which would satisfy the neo-constitutional muster on ED is: we can build 800,000,000 cubic feet of office space. In that 800,000,000 feet, we can house 20,000 employees, therefore, by creating this 'plan' *poof* we just created 20,000 jobs.

I don't know who has the family brain cell over at City Hall, but they're embarking on something very dangerous.

|6.7.06 @ 7:42AM|#

Geof,

You said:

"I'm only defending eminent domain as a general principle. Many posts here suggest that eminent domain is NEVER proper, no matter the government's use."

I am one of those who believes it is never proper. As such, I'm in obvious disagreement with our constitution. I would argue that anything one does on or with his land should not be regulated by the state. Any negative externalities can be subject to criminal prosecution if they violate the physical property of others.

Yes, eminent domain is "proper" according to the constitution. I would argue that it is never proper - that it is never compatible with - liberty and freedom for all.

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