Topic: We aren't the only ones with problems....Property Rights Decision

[Infanteer]

Just when I thought our Supreme Court couldn't be topped (Language Segregation? Why Not!), our neighbours to the South pull one out of the hat.   I wonder how Eminent Domain for a strip mall will jive with the 5th Amendment.

http://edition.cnn.com/2005/LAW/06/23/scotus.property.ap/index.html

High court OKs personal property seizures
Majority: Local officials know how best to help cities

Thursday, June 23, 2005 Posted: 1450 GMT (2250 HKT)

WASHINGTON (AP) -- -- The Supreme Court on Thursday ruled that local governments may seize people's homes and businesses -- even against their will -- for private economic development.

It was a decision fraught with huge implications for a country with many areas, particularly the rapidly growing urban and suburban areas, facing countervailing pressures of development and property ownership rights.

The 5-4 ruling represented a defeat for some Connecticut residents whose homes are slated for destruction to make room for an office complex. They argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.

As a result, cities have wide power to bulldoze residences for projects such as shopping malls and hotel complexes to generate tax revenue.

Local officials, not federal judges, know best in deciding whether a development project will benefit the community, justices said.

"The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including -- but by no means limited to -- new jobs and increased tax revenue," Justice John Paul Stevens wrote for the majority.

He was joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

At issue was the scope of the Fifth Amendment, which allows governments to take private property through eminent domain if the land is for "public use."

Susette Kelo and several other homeowners in a working-class neighborhood in New London, Connecticut, filed suit after city officials announced plans to raze their homes for a riverfront hotel, health club and offices.

New London officials countered that the private development plans served a public purpose of boosting economic growth that outweighed the homeowners' property rights, even if the area wasn't blighted.

Justice Sandra Day O'Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.

The lower courts had been divided on the issue, with many allowing a taking only if it eliminates blight.

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

She was joined in her opinion by Chief Justice William H. Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas.

[jmacleod]

This is not a new activity in the economic development sector of the public service. Lands are
"expropriated" on a regular basis for the development say, of an industrial park or shopping centre,
usually after the public body, a municipality, a county, Province or the Federal governmen decides. The
key element is the weighing of tax revenue against the cost of expropriation, compensation to
those affected. Much of the land used to establish Canadian military bases in World War II were
in fact expropriated. Next month, the Federal government will move to dispose of the lands known
as Shannon Park, Halifax Regional Municipality NS - these lands will in fact be "expropriated" by another
Federal agency, the Canada Lands Company for disposal. Since we work in the field of economic development, we pointed out to a senior Federal Miniister as recently as last Monday that these
lands should be sold for a minimum of $10 million,( new dollars for the CF) - let's see how it plays out.
MacLeod
       

[Aden_Gatling]

Lands are "expropriated" on a regular basis for the development say, of an industrial park or shopping centre, usually after the public body, a municipality, a county, Province or the Federal governmen decides.

When has this happened?

This is nuts: and I was thinking our S.C. was getting out of hand ... at least the US S.C. justices have to be confirmed by an elected Senate (so there is some notion of representation).

[Zip]

This is disturbing because the US bill of rights has the rights to private property written into it.

nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As weak as the US clause is our CCR&F does not guarantee any such rights, considerations or guarantees about property rights.

IIRC almost all of CFB Gagetown was appropriated by the Government

[Brad Sallows]

Although there have always been some people who objected to eminent domain for any reason, this decision is a new wrinkle in that the "need" doesn't have to be anything greater than an expectation of higher tax revenues.  Naturally, public officials would never allow themselves to be pressured by business interests into appropriating and reselling land.

[Dogboy]

It seems on this case the majority of the US supreme court dissenters are considered "right" wing.   I always thought they were suppose to be for big business, etc....I am still scratching my head on this one.     So does that mean that wind power developers could expropriate Ted Kennedy's mansion to put a wind farm there?       

man thate a scewd vew
itll be more like some low rent homes and pore neberhoods get leveld for a wallmart or a freeway or some hight end condow develipment.dam the Poor they can alwes move.
and you forget the Kennedys whuld be abel to still fight it in court but can some poor famley?

[Infanteer]

This is disturbing because the US bill of rights has the rights to private property written into it.
As weak as the US clause is our CCR&F does not guarantee any such rights, considerations or guarantees about property rights.

I think it may be buried somewhere else in the Constitution, but I'm not to sure if:

A) It is entrenched

B) I'm thinking of something else

In any case, you are right, it is a little disappointing to see property rights, which are rightly considered the foundation of democracy and civil society (everyone back and read your Locke) to not be guaranteed by the State.  As Brad Sallows stated, Eminent Domain is okay as it was intended for the public good, but for a strip mall?!? 

[rmc_wannabe]

.   As Brad Sallows stated, Eminent Domain is okay as it was intended for the public good, but for a strip mall?!?  

I agree with you completely, but i bet many a cracked out politician will see a mini mall as a way to get taxes to fund their plans.

[Zip]

I think it may be buried somewhere else in the Constitution, but I'm not to sure if:

A) It is entrenched

B) I'm thinking of something else

In any case, you are right, it is a little disappointing to see property rights, which are rightly considered the foundation of democracy and civil society (everyone back and read your Locke) to not be guaranteed by the State.   As Brad Sallows stated, Eminent Domain is okay as it was intended for the public good, but for a strip mall?!?  

I'm sure it isn't. AAMOF I know it isn't in the CCR&F and the Constitution act of 1867 does not deal with rights but with the organization of government, and other procedural arangements of government

[Infanteer]

http://laws.justice.gc.ca/en/C-12.3/28981.html

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

As far as I know, the Canadian Bill of Rights is still Law - as it Legislation, I think it only pertains to Federal laws (thus forms of eminent domain would not be applicable to it if it were enacted by a municipal or provincial government).   As well, I am not to sure if the Bill of Rights in Entrenched or not.

Either way, I think that the Constitution needs to make a fundamental recognition of property rights.

[Zip]

http://laws.justice.gc.ca/en/C-12.3/28981.html

As far as I know, the Canadian Bill of Rights is still Law - as it Legislation, I think it only pertains to Federal laws (thus forms of eminent domain would not be applicable to it if it were enacted by a municipal or provincial government).   As well, I am not to sure if the Bill of Rights in Entrenched or not.

Either way, I think that the Constitution needs to make a fundamental recognition of property rights.

Infanteer, you are right about this as the Law has not been repealed.

From the Constitution:

Continuance of existing Laws, Courts, Officers, etc. 

129.  Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act.

[jmacleod]

The basis of British Common Law (BCL) is the protection of property - says so in the Magna Carta,
thus the civil process of expropriation is designed to provide maximum protection for a property
owner, through a complex administratve process. This requires a public entity such as a municipality
to undertake a due diligence of the property, title search, tax status, details of principals, environmental
assessment, a right to a public hearing, and an elaborate appeal process. For example when we were
building the AeroTech Business Park, Halifax HRM NS, a supply of potable water was a major problem
-resolved that by finding a new, pristine water source which was shared with TC -Airport Halifax. The
destination of the pipe line went through a property owned by a major oil company, well known to
us. An offer was made to purchase the land at current market value-refused, Second offer, refused
-advised them that Halifax County would exproriate the land, they replied, "try it". The land was
expropriated at fair market value - the oil company appealed before the NS Planning Board in a
public forum - they lost. The site in fact is where we located the UT Pratt&Whitney Plant a $100
million investment, which created many high paying technology based jobs and substantial ongoing
tax revenue - process to acquire the land took five years. I doubt, regardless what the US Court
has decided that any politican would go along with a plan to seize and demolish dwellings - a
compromise would be negotiated - just ask WalMart. But the development process goes forward on
a continuing daily basis. that is why municipal and provincial units hire planners and lawyers - it is simply
a fact of life in North America in particular. MacLeod

[Dare]

http://laws.justice.gc.ca/en/C-12.3/28981.html

As far as I know, the Canadian Bill of Rights is still Law - as it Legislation, I think it only pertains to Federal laws (thus forms of eminent domain would not be applicable to it if it were enacted by a municipal or provincial government).  As well, I am not to sure if the Bill of Rights in Entrenched or not.

Either way, I think that the Constitution needs to make a fundamental recognition of property rights.

When thinking about laws, we have to remember that there are layers. For instance, the US Constitution is at a deeper layer in government than our Constitution Act is. We must look beyond the title (which is irrelevant) towards the content and in which body it is applied (especially important). Every bit of paper we have signed have applied to us more laws and legal hierarchies. The question, I think, would be, are there any "free men" left, as mentioned in the Magna Carta? I would imagine that this is quite a bit more complicated for one who as signed in as a permanent employee and/or enrolled in the military.

[jmacleod]

The US Supreme Court have ruled on the law of "Eminent Domain" , which is the power of a Government to appropriate private property for it's own use without the owner's consent. It
is rarely used in Canada, but eminent domain is always controversial. The action is used in the
US primarily for the acguistion of property which is necessary for the completion of a "public
project", like a new highway, road, or right of way. It is used, (and will continue to be used)
when a property owner is unwilling to negotiate a price for it's sale. In many US jurisdictions
of course the power of eminent domain is "tempered with the right that just compensation
be provided for the appropriation". There is an entire industry in the US of lawyers working
in the field of "Eminent Domain". In Canada, negotiation, expropriation and compensation is
the normal procedure. I am 75 years, been a consultant for over 30, have never seen the ED
process used in Canada. MacLeod

[CloudCover]

First of all, the Canadian Bill of Rights is a federal statute which applies only to subject matter that falls withing the sphere of federal authority under the Constitution Act, 1867.  Our system of law dealing with real estate is much more confusing than any other legal jurisdiction in the world, primarily because of the division of powers in our Constitution, and the increasing role of aboriginal self government-where first nations are being given control over large sections of territory. [this doesn't mean they own it- the crown "owns" it.] We also have the troubling issue of aboriginal lands within our borders which are claimed as our sovereign territory, but never ceded by first nation treaty. The federal government can expropriate land in specific situations, and such expropriation is not historically rare.

Second, the New London decision referred to above deals with muncipal expropriation- in Canada municipalities are creatures of provincial governments, and all of the expropriation and land use planning legislation are provincial statutes. The Canadian Bill of Rights does not apply to anything solely within the domain of a province, but it applies to the Territories. The Charter protects individual rights, not property rights other than long standing aboriginal property rights dealing with hunting and fishing "grounds".

In Ontario, ownership of land is by registered deed of land, other wise ownership vests in the Crown. There is no common law status of ownership of land in Ontario.

[jmacleod]

A very smart lawyer, retired from the Faculty of Dalhousie University Law School told me one time
that if the Canadian Bill of Rights "was challenged" the legislation would prove to be "unconstitutionsl"
-at the moment, the political appointees who staff our Federal judicial system are playing all kinds
of legal games based on their interpretation of the Canadian Bill of Rights. When the current political
situation in Ottawa calms down, and a possible change in government is achieved, much of the
legislation generated by the Supremes will be challenged, and with majority Government, in some
cases simply vanish. I agree with the last (previous post) property law in Canada administered by
the Provinces in particularly complex. But there is a humorous side to this; NS architectural students
in Halifax NS erected a sign (a very professional sign) indicating that a vacant lot in the absolute
heart of downtown Halifax was cited as the new home for a WalMart superstore - local politicians
essentially lost it, went ballistic, lots of media coverage, and lots of laughs. Retailers of course are
scared shitless of WalMart - MacLeod

[Aden_Gatling]

This is AWESOME!!!!     Interesting that they are doing this in New Hampshire ... "Live Free Or Die!"

Press Release

For Release Monday, June 27 to New Hampshire media
For Release Tuesday, June 28 to all other media

Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.

Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.

"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development."

Clements' plan is to raise investment capital from wealthy pro-liberty investors and draw up architectural plans. These plans would then be used to raise investment capital for the project. Clements hopes that regular customers of the hotel might include supporters of the Institute For Justice and participants in the Free State Project among others.

# # #

Logan Darrow Clements
Freestar Media, LLC

http://www.freestarmedia.com/hotellostliberty2.html

[Zip]

Absolutely perfect. 

[Aden_Gatling]

But we need more government because it is always so benevolent: greed is the exclusive domain of the evil neocon corporations:

A New (London) Low
A refrigerator box under the bridge: The Kelo Seven prepares for the worst

by Jonathan O'Connell - July 14, 2005

Those who believe in the adage "when it rains, it pours" might take the tale of the plaintiffs in Kelo v. New London as a cue to buy two of every animal and a load of wood from Home Depot. The U.S. Supreme Court recently found that the city's original seizure of private property was constitutional under the principal of eminent domain, and now New London is claiming that the affected homeowners were living on city land for the duration of the lawsuit and owe back rent. It's a new definition of chutzpah: Confiscate land and charge back rent for the years the owners fought confiscation.

In some cases, their debt could amount to hundreds of thousands of dollars. Moreover, the homeowners are being offered buyouts based on the market rate as it was in 2000 .

The hard rains started falling that year, when Matt Dery and his neighbors in Fort Trumbull learned that the city planned to replace their homes with a hotel, a conference center, offices and upscale housing that would complement the adjoining Pfizer Inc. research facility.

The city, citing eminent domain, condemned their homes, told them to move and began leveling surrounding houses. Dery and six of his neighbors fought the takeover, but five years later, on June 23, the downpour of misfortune continued as the U.S. Supreme Court ruled 5-4 that the city could claim the property for economic development.

Dery owns four buildings on the project site, including his home and the birthplace and lifelong home of his 87-year-old mother, Wilhelmina. Dery plans to make every remaining effort to keep his land, but with few legal options remaining, he's planning for the worst.

And for good reason. It's reasonable to think that people who purchased property years ago (in some cases, decades ago) would be in a position to cash in, especially since they're being forced from their homes. But that's not the case.

The New London Development Corp., the semi-public organization hired by the city to facilitate the deal, is offering residents the market rate as it was in 2000, as state law requires. That rate pales in comparison to what the units are now worth, owing largely to the relentless housing bubble that has yet to burst.

"I can't replace what I have in this market for three times [the 2000 assessment]," says Dery, 48, who works as a home delivery sales manager for the New London Day . He soothes himself with humor: "It's a lot like what I like to do in the stock market: buy high and sell low."

And there are more storms on the horizon. In June 2004, NLDC sent the seven affected residents a letter indicating that after the completion of the case, the city would expect to receive retroactive "use and occupancy" payments (also known as "rent") from the residents.

In the letter, lawyers argued that because the takeover took place in 2000, the residents had been living on city property for nearly five years, and would therefore owe rent for the duration of their stay at the close of the trial. Any money made from tenantssome residents' only form of incomewould also have to be paid to the city.

With language seemingly lifted straight from The Goonies , NLDC's lawyers wrote, "We know your clients did not expect to live in city-owned property for free, or rent out that property and pocket the profits, if they ultimately lost the case." They warned that "this problem will only get worse with the passage of time," and that the city was prepared to sue for the money if need be.

A lawyer for the residents, Scott Bullock, responded to the letter on July 8, 2004, asserting that the NLDC had agreed to forgo rents as part of a pretrial agreement in which the residents in turn agreed to a hastened trial schedule. Bullock called the NLDC's effort at obtaining back rent "a new low."

"It seems like it is simply a desperate attempt by a nearly broke organization to try to come up with more funds to perpetuate its own existence," Bullock wrote. He vowed to respond to any lawsuit with another.

With the case nearly closed, the NLDC may soon make good on its promise to sue. Jeremy Paul, an associate UConn law dean who teaches property law, says it's not clear who might prevail in a legal battle over rent. "From a political standpoint, the city might be better off trying to reach some settlement with the homeowners," he says.

An NLDC estimate assessed Dery for $6,100 per month since the takeover, a debt of more than $300K. One of his neighbors, case namesake Susette Kelo, who owns a single-family house with her husband, learned she would owe in the ballpark of 57 grand. "I'd leave here broke," says Kelo. "I wouldn't have a home or any money to get one. I could probably get a large-size refrigerator box and live under the bridge."

That's one way to get out of the rain.

http://fairfieldweekly.com/gbase/News/content?oid=oid:119000

[CloudCover]

A very smart lawyer, retired from the Faculty of Dalhousie University Law School told me one time
that if the Canadian Bill of Rights "was challenged" the legislation would prove to be "unconstitutionsl"
-at the moment, the political appointees who staff our Federal judicial system are playing all kinds
of legal games based on their interpretation of the Canadian Bill of Rights. When the current political
situation in Ottawa calms down, and a possible change in government is achieved, much of the
legislation generated by the Supremes will be challenged, and with majority Government, in some
cases simply vanish. I agree with the last (previous post) property law in Canada administered by
the Provinces in particularly complex. But there is a humorous side to this; NS architectural students
in Halifax NS erected a sign (a very professional sign) indicating that a vacant lot in the absolute
heart of downtown Halifax was cited as the new home for a WalMart superstore - local politicians
essentially lost it, went ballistic, lots of media coverage, and lots of laughs. Retailers of course are
scared shitless of WalMart - MacLeod

The Canadian Bill of Rights has been found to be constitutional, most recently in the Authorson decision. [breach of fiduciary duty of government re: investment practices of government administrators of pensions belonging to war veterans]. The dividng line is summed up in the head note to the case:

"Where federal legislation conflicts with the protections of the Bill of Rights, unless the conflicting legislation expressly declares that it operates notwithstanding the Bill of Rights, the Bill of Rights applies and the legislation is inoperative. The Bill of Rights protects only rights that existed in 1960, prior to its passage."

In my opinion, the Supreme Court accomplished two major pressing social objectives for the left with this case: they confirmed that in the eyes of the law veterans aren't worth a pinch of coon crap to the government and the courts. second, the generation of young Canadians that came of legal age with the passage of the Charter was virtually excluded from deriving any of the property rights conferred by the Bill of Rights- with the exception of new generations of first nations person attempting to establish land claims.