Thursday, June 23, 2005
How It Works
This is not the occasion for conjecture as to what sort of cases might justify a more demanding standard, but it is appropriate to underscore aspects of the instant case that convince me no departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimus. The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements thatfacilitate review of the record and inquiry into the city’s purposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case.The fact is that Pfizer wanted to move in and the city decided to make that happen, and even Kennedy concedes that Pfizer's interest was the precipitating factor. Now let's proceed to an article on the Institute for Justice's website, which describes another such case:
The Gambles’ fight to save their home began in 2003 after the Norwood City Council accepted the results of an “urban renewal study” that found the Gambles’ attractive, middle-class neighborhood to be “deteriorating” and “blighted”—and thus eligible to be taken by eminent domain Suspiciously, the study was initiated and funded by developer Anderson—the same person the Council will transfer the property to for commercial development.And this is the procedure which Kelo V New London has now enshrined as constitutionally valid. A developer pays to do a study confirming that the property it wants to develop could be more profitable to the community, it presents the study, and the municipality condemns the property and gives it to the developer. This ensures that the developer doesn't have to undertake the arduous and expensive route of actually negotiating with the property owners. In recent years, this has happened in every state. According to the Institute for Justice, they have documented over 10,000 cases in four years in which this argument was put forth:
Gall pointed out that some of the problems listed in the blight “study,” such as dead-end roads and traffic, were the City’s doing and beyond the control of the residents. The study itself admits that not one of the 99 homes and businesses in the area were dilapidated or behind on taxes. Perhaps most worrisome of all, one of the factors the City relied on to say that the neighborhood was “deteriorating” is that it had “diversity of ownership”—essentially, everyone owned their own single-family home or business.
“If our place was ‘deteriorating’ based on everyone owning their own home, then nearly every neighborhood in America is deteriorating and could be taken,” said homeowner Carl Gamble. “Step out your front door and look to the left and look to the right and if you see a home owned by someone else, then look out.”
“The so-called blight study was a joke and a fraud,” Gall said. “It is an outrageous example of the total buyout of a city’s eminent domain power.”
From 1998 to 2002, the Institute for Justice documented more than 10,000 instances of threatened or actual eminent domain abuse, where eminent domain was being used for private development. Ohio alone had more than 400 instances in that five-year period.This is oligarchy. When government can seize a private home or business for the benefit of another private entity under the logic that the private entity will pay more taxes, wealth, and only wealth, prevails. To make the individual's lack of rights even more clear, the Supreme Court took pains to ennunciate the principle that local governments who seize property under the guise of economic development don't even have to show that economic development will probably occur. From the syllabus:
Also rejected is petitioners’ argument that for takings of this kind the Court should require a “reasonable certainty” that the expected public benefits will actually accrue.It would be an undue burden upon the government, you see, to which the court owes deference.