Sotomayor on Takings


In our April 2007 print edition, I wrote about a particularly egregious abuse of eminent domain in Port Chester, New York:

In 2003 Bart Didden set out to build a CVS drugstore on property he owned in Port Chester, New York. Unfortunately, a developer hired by the town had other plans for Didden's land. The developer wanted to put up a Walgreens drugstore on the same property, so he demanded that Didden either pay $800,000 to "make him go away" or pony up a 50 percent stake in the CVS. Didden refused.

Just a day later, the Village of Port Chester condemned Didden's land, which it planned to hand over to the developer. Didden sued, but last year the U.S. Court of Appeals for the 2nd Circuit ruled the condemnation was consistent with Kelo.

"It took me years of hard work to buy that property, pay off my mortgages and really feel like I own it," Didden said in a December press release issued by his attorneys at the Institute for Justice, a libertarian public interest law firm that frequently handles eminent domain cases.

"Kelo did spark a massive public backlash," says Institute for Justice attorney Dana Berliner, "but at the same time it emboldened local governments to further abuse of eminent domain for private purposes. And it emboldened courts to approve these abuses."

Over at Forbes.com, Richard Epstein notes that Obama Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that upheld the condemnation. The panel's entire analysis: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

"[V]oluntary attempt to resolve appellants' demands" is one way of putting it. "State-sanctioned extortion" is another.