(for US resident only) I found this news troublesome...

[Webster]

It's seems that your home is no longer really your..
http://news.yahoo.com/s/ap/20050623/ap_on_go_su_co/scotus_seizing_property

I do hope the mod's doesn't mind that I post this. It is somewhat political......

[ricardouk]

wow, can they do that?

thats not right!

[waheed]

Total unfair policy and out of order.

I would comment more but it would be political.

[Supreme2k]

Actually, that's been around for decades. That's partially how the railroads were built.

Not exactly a tinfoil hat "they're coming to take my house" kind of deal.

And yes, it is very political.

[BJ_M]

Actually, that's been around for decades. That's partially how the railroads were built.

Not exactly a tinfoil hat "they're coming to take my house" kind of deal.

And yes, it is very political.

no - how railroads were built was to use "eminent domain" , which is in the Fifth Amendment and requires "public use".

What they are saying now is that a fat cat developer or large well connected corporation can cause the same thing to happen to your home and/or your bussness with no "public use" clause nessessary.


Since this was a 5/4 split vote and the 4 that voted against it really against it ... I woudl think this may be back before the courts again ..

but MANY people will lose their homes in the meantime as this case was being waited on for billions of $ in proposed developments ..

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.

[adam]

This is still a very controversial decision though. Railroads clearly have a public use. The same can't necessarily be said for a shopping mall.

[adam]

No BJ_M this is still being done under the authority of the 5th Amendment and it still requires a "public use." This case involves broadening the definition of a public use to include such private developments as shopping malls and such.

[BJ_M]

well they have broaded themeaning of public use so much that it has no meaning ..

the explanation also from the judges made no menton of the 5th either:

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.

[BJ_M]

they are saying - that a city has ABSOLUTE CONTROL over what they feel is a "benefit"

and we all know city consuls are not always lily white or make the best decisions when it comes to development ...

[BJ_M]

I read this as throwing the baby out with the bath water

[adam]

well they have broaded themeaning of public use so much that it has no meaning ..

I agree, but if you read the entire article I think its fairly easy to piece it all together. The Government's only authority to take private property for any reason comes under the 5th Amendment. The Supreme Court can only interpret this language which requires a "public use." The justices are saying that local officials now have the legal authority to decide what is a sufficient "public use" for their own citizens. Its far from absolute though, no government official has that. It is still subject to judicial scrutiny, they will just be granted alot more deference.

This case hits kinda close to home. I'm working a Takings case against the city right now.

[AlecWest]

I haven't seen the "specifics" of the law allowing eminent domain powers by government. But just because the Supreme Court has rendered a decision doesn't mean governments will want to follow through with seizures. Voters have options the Supreme Court can't control (yet) and, as Burl Ives once said, there's more than one way to tree a coon.

What would happen if voters in a given state submitted an initiative petition and voted it in ... one that would say, "OK, go ahead and seize what you want to" but also say something like:

Governments seizing property for the public good must first, at their own expense, relocate residents in/on the property to new residences of equal size and equal replacement value ... AS WELL AS pay the former owner fair market value.

The Supreme Court says they can sieze ... but the bugger can be in the "details" if only voters are willing to stand up to their governments. Just a thought.

[Shocker Milwaukee]

AS WELL AS pay the former owner fair market value.

Which is determined by a government auditor. If you disagree with the the appraisel, you have to go to court.

[AlecWest]

AS WELL AS pay the former owner fair market value.

Which is determined by a government auditor. If you disagree with the the appraisel, you have to go to court.

I was merely trying to be brief. Such a petition could specify that, for example, fair market values must be determined by consensus of three different private-sector appraisers. This is not a new tactic. Remember Proposition 13 in California ... where the government was forced to roll back assessments by a number of years? That's the kind of power the voters can wield ... if only they have the gumption to do so.

[BJ_M]

and the state went almost bankrupt didn't it ?

[adam]

The government has always had to pay "fair market value" for any property seized due to a governmental taking. Market value is something that the county appraises anyway in order to collect taxes and they generally overvalue property by quite a bit for obvious reasons...more taxes they can collect. Pretty much the only time anyone does go to court to contest their propery's appraisal value is to try to get it devalued.

In the case of actual takings, where you literally lose your land (as opposed to regulatory takings), the property owner is usually paid very generously and overall makes a good return on their investment. In most cases it is more than if they actually sold it themselves. The problem with it is just that the indvidual had no desire to sell. You can't put a price tag on that.

As far as states passing their own legislation on this matter...they already do. I think all but two states have their own takings provision in their State constitutions and they can limit the state's ability to take as much as they want, and regulate the definition of "adequate compensation" as much as they want.

Whenever the language of the US Constitution is construed like this it acts as the upper bar of governmental authority. The federal standard provides the broadest powers that the States can make use of, and its up to them to decide how much of that they want to exercize.

With that said, most of the people in the legal community seem to think this decision is flat out whack. Yes that is a legal term.

[rkr1958]

What about when local government condemns a property? Can they use that tatic to sieze it? If so, is that different than eminent domain?

[BJ_M]

condemning i am sure falls under the "blight" heading which in most areas constitutes fair game .... plus in almost all cases it is beneficial for both the community and the owner .. as the owner would never be able to sell it otherwise in most cases ..


you should see the tax default repos though -- lots of those around, specially on land and such ..

[ZAPPER]

Voters not getting involved in their communities and governments is what has led to this in the first place. I know that seems like it may be harsh, but that is the way that it is. You have to take part in the up keep and planning of your community. Provide valuable input and options. One thing that may also seem sad is the fact that the big boys with the money do have an agenda and know what they are up to. They have done their homework and looked at all of the angles. I don't like it, but that is the way it is. I have been around eminent domain and right of way issues before, and the little guy gets screwed and the fat cats get fatter. Perhaps it is survival of the fittest.

P.S. While this topic may be on the razors edge of being political, I would like to suggest that it be allowed. It is not endorsing any one individual or party or their agenda as of yet. It seems more of a rant and exchange of information in the way of educating its readers based on events presented in the news. (But hey, I could be wrong, it may turn into a revolution.)

[adam]

What about when local government condemns a property? Can they use that tatic to sieze it? If so, is that different than eminent domain?

All cities have statutes governing condemnations of various kinds and the authority for them comes from the 5th amendment. Cities can take your land and property for things like local waterways, even wildlife preservation, and the big one is for health and public safety. Most of the time there is no question that these things constitute public uses.

If a building is condemned for health and safety reasons (aka gonna fall on someone's head real soon) it is still a governmental taking requiring adequate compensation, but usually the buildings have no value once you factor in the cost to bring them back up to code, if that's even possible. So usually what the city does is pay some or all of the demolition cost which usually far exceeds the value of the property. It can cost millions of dollars to demolish even a small building if its in a heavily populated area. If the property owner is at fault in letting the building fall into disrepair they are stuck with the demolition cost. Most cities have bailout funds for this because alot of people can't afford to pay.

[BJ_M]

if it has asbestos in it - the cost can escalate to massive amounts .. and old factories also have land clean up costs that are sometimes out of this world ..

cheaper for the owner to walk away -- which many have done ..

[ZAPPER]

I know that some cities will try to sell properties that are tax delinquent and run down for as little as a dollar if the new owner demos and or rejuvinates the site.

Asbestos and even radiation are not as bad as some of the heavy metals and petro-chemicals that are often found at industrial sites.

[adam]

Seizing property due to a tax delinquency is not a governmental taking. Anybody can do this if someone owes you money. You get a court to grant you a lien on the property. If they don't pay you the sheriff seizes it and sells it. The proceeds go to pay their debt to you and any remainder goes back to the person. Its just a way to make people pay their debts or in this case taxes.

Stuff does go for pennies on the dollar at these public auctions though. Sucks for them.

[rallynavvie]

Wait, why are we arguing with a Canadian over American politics?

You hush up or you're going to be the next Axis of Evil, and I don't think you'll last long with the massive bumrush of hicks on this side of the border forming militias.

[BJ_M]

I am not a Canadian, if you are referring to me

[AlecWest]

and the state went almost bankrupt didn't it ?

I think Enron (et al) had something to do with that, more so than Proposition 13 passed years earlier.

The problem with it is just that the indvidual had no desire to sell. You can't put a price tag on that.

True. But you can put a pricetag on "improvements." If these "for the public good" projects end up becoming too costly, especially if taxpayers are expected to foot the bill, taxpayers would be less likely to support the projects ... and even suggest to politicians that their support of a costly project may cost them re-election.

In short, while voters can't stop a government seizure anymore thanks to the Supreme Court, they can make a seizure so costly that it becomes a political albatross. The ball is in the hands of voters, now. They have the power to transform seizures into political albatrosses ... or stick their tails between their legs and say "Yazzuh, boss" to their governments when seizure time comes around.

[BJ_M]

Houston was were Enron was based, but if you mean the phony California electricity crisis.. yea, that was them.


A reviewer of Enron: The Smartest Guys in the Room (see below) describes the fraud:

Enron cynically and knowingly created the phony California electricity crisis. There was never a shortage of power in California. Using tape recordings of Enron traders on the phone with California power plants, the film chillingly overhears them asking plant managers to "get a little creative" in shutting down plants for "repairs." Between 30 percent and 50 percent of California's energy industry was shut down by Enron a great deal of the time, and up to 76 percent at one point, as the company drove the price of electricity higher by nine times.

http://en.wikipedia.org/wiki/Enron

[AlecWest]

Tell me about it. Enron owns Portland General Electric. They're trying to liquidate, though. No interested buyers yet. Perhaps no one will believe their books.

[BJ_M]

Portland General Electric (PGE), was founded in 1889, and ranks as Oregon's largest utility. PGE was acquired by Enron during the 1990's, and will emerge from bankruptcy as an independent company through a private stock offering to Enron creditors. Still to remain to be consummated.

[AlecWest]

Portland General Electric (PGE), was founded in 1889, and ranks as Oregon's largest utility. PGE was acquired by Enron during the 1990's, and will emerge from bankruptcy as an independent company through a private stock offering to Enron creditors. Still to remain to be consummated.

Independent? Maybe. The City of Portland wants to acquire it. Some people would even like to see it become a Public Utility District ... though the last time that was voted on, it was defeated. But, that could change.