Supreme Court to Hear Property Rights Case

albionmoonlight · 02-22-2005, 07:43 AM

http://www.cnn.com/2005/LAW/02/21/sc...ain/index.html

Without getting into the details of 5th Amendment Takings law (which is an interesting but complicated subject), I think that this case presents some fodder for policy debate.

Can/Should the Government be allowed to use eminent domain to condem and take property for economic development? We are not talking about tearing down slums to build railroads (very few people are against that).

We are talking about merely depressed areas that the government wants to tear down to turn into business parks for private companies.

The debate pits two very American ideals against each other--private property ownership free from government interference vs. economic development and job creation.

For some reason, it seemed like a topic that some on the board may find interesting.

QuikSand · 02-22-2005, 07:47 AM

Has the potential to have very long-standing effects on land use and economic development policy. I agree it raises some very interesting policy issues.

miked · 02-22-2005, 07:57 AM

So I don't get this. The government can just step in and land grab if they feel like it? Who decides what "just compensation" really is. I find it pretty crazy that the gubment can just take over your land if you own it, pay taxes on it and probably paid a shit-load of interest over the years to keep it.

Flasch186 · 02-22-2005, 08:01 AM

Quote:

Originally Posted by miked

So I don't get this. The government can just step in and land grab if they feel like it? Who decides what "just compensation" really is. I find it pretty crazy that the gubment can just take over your land if you own it, pay taxes on it and probably paid a shit-load of interest over the years to keep it.

Yup, im rooting for the home owners......

sachmo71 · 02-22-2005, 08:05 AM

As long as the homeowners are fairly compensated, I believe the city should be able to move them, if they can prove it is warranted.

Mr. Wednesday · 02-22-2005, 08:08 AM

Quote:

Originally Posted by miked

Who decides what "just compensation" really is.

The government does, and if the property owner disagrees, it goes to court. As I recall, there have been reports of abuse of this (by the government) in Texas.

Marc Vaughan · 02-22-2005, 08:12 AM

Quote:

Originally Posted by miked

So I don't get this. The government can just step in and land grab if they feel like it? Who decides what "just compensation" really is. I find it pretty crazy that the gubment can just take over your land if you own it, pay taxes on it and probably paid a shit-load of interest over the years to keep it.

I'd expect the majority of goverments have this power if you think about it, I know similar things were used in England when motorways were established.

If such provisions aren't present than a single property owner can effectively either curtail a massive development which is for the good of society (or so the goverment would like you to think

) or hold the goverment to ransom (ie. charge a massive amount because its the last property left to be purchased and a huge amount of investment in the project has been made already).

In the UK I believe there's a heck of a lot of legislation in place to protect home owners in these cases, I believe that the goverment has to pay at least a decent whack for the property (above it in fact I think to compensate for relocation) and also to give a certain amount of notice to owners that this is happening (so they can plan accordingly).

Because of the type of ventures undertaken generally for these things here (ie. road expansion) owners generally are happy to sell-up - after all the alternative of having a motorway 5 yards from your front door (if they route around you) will knock a huge amount off the house value and destroy your living conditions anyway ....

Flasch186 · 02-22-2005, 08:13 AM

i think building a resort might be a bit abusive, ya think?

Fritz · 02-22-2005, 08:13 AM

aml,

I find myself on both side of the issue. One the one hand, I would like to think that private property is private and secure. On the other hand, I can't tell you how many times I have been driving through a area and thought "boy, if 'they' could just knock all this over and build something nice.'

---

I have seen, locally, where an area that is depressed is purchased by the city and held by the redevelopment council, then sold to a developer. Its hard to look at city records and see exactly what happens, because roads are removed and relaid and new lots formed.

In every case where I have seen it, the new property is fairly nice, but I still debate the role of government here. Frankly, I think it may be self serving.

For instance, if there are 100 small old houses on 25 acres of land, there is a good chance that very little is going into the city coffers since the value is fairly low or the people living on the property qualify for a tax reduction/exemption.

However, the 33 decent houses on redrawn plots could result in more than 100k per year in tax revenue.

Farrah Whitworth-Rahn · 02-22-2005, 08:53 AM

Quote:

Originally Posted by sachmo71

As long as the homeowners are fairly compensated, I believe the city should be able to move them, if they can prove it is warranted.

Unfortunately often times what the property owners consider FMV (ie: what the home can be sold for on the open market) vs. what the government considers market value can be significantly different. In every condemnation proceeding I've been involved in, the government has tried to low ball the market value. And not just by one or two dollars per square foot, but ten to twenty dollars per square foot. Spread that across 100's acres, and you can imagine the amount of money that is lost when governments "condemn" property.

There was a case out here in AZ where the city of Mesa wanted to condemn an auto shop that had been in that location for thirty some odd years. The reason? To put in a hardware store - an ACE I think. With the help of a not for profit legal foundation, the business owner fought it, and won.

As an aside, if I ever go to law school I want to work for these guys.

sachmo71 · 02-22-2005, 09:14 AM

Quote:

Originally Posted by Farrah Whitworth-Rahn

Unfortunately often times what the property owners consider FMV (ie: what the home can be sold for on the open market) vs. what the government considers market value can be significantly different. In every condemnation proceeding I've been involved in, the government has tried to low ball the market value. And not just by one or two dollars per square foot, but ten to twenty dollars per square foot. Spread that across 100's acres, and you can imagine the amount of money that is lost when governments "condemn" property.

There was a case out here in AZ where the city of Mesa wanted to condemn an auto shop that had been in that location for thirty some odd years. The reason? To put in a hardware store - an ACE I think. With the help of a not for profit legal foundation, the business owner fought it, and won.

As an aside, if I ever go to law school I want to work for these guys.

Then the system is flawed. Maybe an arbitration process needs to be put into place. My contention is that the compensation has to be fair; otherwise I side with the homeowner.

Crapshoot · 02-22-2005, 09:20 AM

Quote:

Originally Posted by Farrah Whitworth-Rahn

Unfortunately often times what the property owners consider FMV (ie: what the home can be sold for on the open market) vs. what the government considers market value can be significantly different. In every condemnation proceeding I've been involved in, the government has tried to low ball the market value. And not just by one or two dollars per square foot, but ten to twenty dollars per square foot. Spread that across 100's acres, and you can imagine the amount of money that is lost when governments "condemn" property.

There was a case out here in AZ where the city of Mesa wanted to condemn an auto shop that had been in that location for thirty some odd years. The reason? To put in a hardware store - an ACE I think. With the help of a not for profit legal foundation, the business owner fought it, and won.

As an aside, if I ever go to law school I want to work for these guys.

This may be the only time Farrah and I agree completely. Unless the market value can be established at market prices and to the satisfaction of the owner, these are dangerous steps used to abuse people's rights in favor of corporations.

Blackadar · 02-22-2005, 09:43 AM

My own belief is that the individual right to own land is pretty absolute. Eminent Domain should be an extremely limited power that is used rarely. I find cases like this to be pretty disgusting, were government and big business team up to screw the little guy - it's an abuse of power of the worst kind.

albionmoonlight · 02-22-2005, 09:45 AM

Quote:

Originally Posted by Crapshoot

This may be the only time Farrah and I agree completely. Unless the market value can be established at market prices and to the satisfaction of the owner, these are dangerous steps used to abuse people's rights in favor of corporations.

I don't really disagree, but you have to consider the context. Most rights granted in the Bill of Rights establish a pretty low floor, rather than an aspirational ceiling.

For example, the Sixth Amendment gives you a right to counsel. However, that does not mean that you get the O.J. Defense team. It means that as long as the state provides you with the bare minimum of competent representation, it has met its constitutional burden.

By the same token, you could argue that the "fair compensation" clause does not require you to get what you could get if you kept the house on the market for 6 months until you found an eager buyer. It may just mean that as long as the government's offer is not laughable (equivilant to a court appointed lawyer who manages to show up on time and wear a suit but not much else), it meets the constitutional standard.

I'm not saying that your objections are not legitimate--simply that constitutional rights (rightly or wrongly) are sometimes not all that you expect them to be cracked up to be.

JonInMiddleGA · 02-22-2005, 09:46 AM

Quote:

Originally Posted by sachmo71

Then the system is flawed. Maybe an arbitration process needs to be put into place.

I suspect the procedures varies from state to state, but at least in Georgia, there is an arbitration process, which involves the appointment of a "special master".

Of course, the applicable laws basically provide that the special master is chosen & appointed by the government ... which is kinda like letting Steinbrenner umpire a Yankee game. But there is arbitration of a sort.

kcchief19 · 02-22-2005, 09:51 AM

Our legal eagles here at FOFC can correct me if I'm wrong, but isn't the question the courty is considering simply what does "public use" mean? Or is it the court being asked to consider whether there is a differentiation between residential and commercial landowners?

Metro Kansas City has been a frequent user of eminent domain in recent years. We have a small but dedicated fringe group that enjoys putting up very low quality signs protesting eminent domain that in and of themselves blight the very property they usually are claiming is not blighted protesting. Most eminent domain proceedings in the metro involve commercial property, such as the proceedings going on right now for our downtown arena.

But hundreds of homes were condemned to make room for the Kansas Speedway, and I'm sure this case could have an impact on the homeowners would are continuing to pursue their protest in the homes they lost there.

Like Fritz, I'm of two minds on the issue as well. I generally favor the use of eminent domain if it is for a public use even if the land is condemned by the government and then transferred to a private developer, the Kansas Speedway being an excellent example. That is a facility that has revitalized an entire county and been a tremendous public benefit.

But the system isn't perfect. The problem with the takings in that case is that even if the government paid fair market value for the homes, the homeowners would have a difficult time finding another similar home at that price in the same area. In one respect, the only way to provide "fair" compensation is for the government to provide greater compensation than the home is actually worth.

The key to this case though is that I have no doubt that if the court strikes down the taking of the land, they will probably cite "public use." Is tearing down old, run down, inexpensive homes fair use to building new luxury high-rise homes? That I'm not sure about. If this was for a jobs center or some other long-term economic boost that would revitalize the greater area, I think you have a case.

But replacing homes with homes is a risky proposition for eminent domain.

Farrah Whitworth-Rahn · 02-22-2005, 10:02 AM

Quote:

Originally Posted by kcchief19

Our legal eagles here at FOFC can correct me if I'm wrong, but isn't the question the correct is considering simply what does "public use" mean? Or is it the court being asked to consider whether there is a differentiation between residential and commercial landowners?

Not a legal eagle, but I think it would depend on state law. "Public use" in Arizona is starting to morph into "what generates the most tax revenue for the municipality".

In most municipalities in Arizona there is a huge distinction between the revenues generated by property taxes, and by sales taxes. Not just in amounts, but in who gets it. Cities generally get the bulk of the sales taxes, while counties get the bulk of property taxes. There are no city property taxes, though Mesa is now toying with the idea of assessing a local property tax.

Sometimes a county will join with the property owner to fight a condemnation proceeding by a city. Or vice versa. Haven't seen one of those in a while, nor have I been involved in one, but they are interesting to follow.

Edit: I should say there are no city property taxes on residential property. There are some city property taxes for certain commercial properties - mostly for manufacturing

JonInMiddleGA · 02-22-2005, 10:05 AM

Quote:

Originally Posted by Farrah Whitworth-Rahn

There are no city property taxes ...

Wow.

My city tax is almost as much as my county tax.

kcchief19 · 02-22-2005, 10:05 AM

Quote:

Originally Posted by albionmoonlight

I don't really disagree, but you have to consider the context. Most rights granted in the Bill of Rights establish a pretty low floor, rather than an aspirational ceiling.

For example, the Sixth Amendment gives you a right to counsel. However, that does not mean that you get the O.J. Defense team. It means that as long as the state provides you with the bare minimum of competent representation, it has met its constitutional burden.

By the same token, you could argue that the "fair compensation" clause does not require you to get what you could get if you kept the house on the market for 6 months until you found an eager buyer. It may just mean that as long as the government's offer is not laughable (equivilant to a court appointed lawyer who manages to show up on time and wear a suit but not much else), it meets the constitutional standard.

I'm not saying that your objections are not legitimate--simply that constitutional rights (rightly or wrongly) are sometimes not all that you expect them to be cracked up to be.

Excellent point. For example, Mrs. kcchief19's family owns an old farmhouse we used to live in that is now on the corner of a major intersection. As a commercial property, the family has had an offer in the high six-figures. But is in a village that prohibits commercial zoning and no one has been able to crack that yet. But the house is rundown and in less than prime shape. If the village decided to condemn the property and put up high-end townhomes, the could easily get their hands on it for probably around $150,000. If the house were fixed up, it could easily go for twice that and it would be much more valuable as a commercial property. But that's not a factor in fair market value.

Farrah Whitworth-Rahn · 02-22-2005, 10:07 AM

Quote:

Originally Posted by JonInMiddleGA

Wow.

My city tax is almost as much as my county tax.

Then you won't want to hear how much our property taxes were last year. It would make you cry.

condors · 02-22-2005, 10:21 AM

I actually worry about this

my home is a two story condo, the land is extremely valuable on which it was built (250k for a .25 acre) has a nice view of the mountains in the background and is very green area (woods, deer, racoons, fox every so often and its less than 15 miles from philadelphia city limits) i bought the condo about 6 years ago for 75k the same condos are going for 145k right now, alot of development is going on, and the smallest single home you can find normally starts over 200k (we are talking less than 1000 square feet here a very small home), i worry that little alcove of condos while i think it is a great place to live is being viewed as underutilized by developers and at some point could get forced out. I am not sure i would be able to find a place in my area (the wife really wants to move and we have been looking around).

If i got less than 150k for my place and a smaller place costs over 200k in the same area i don't think i could live where i have spent my whole life(35 years so far) and i would really miss the place as to me its got everything you could want in driving distance and having a senic veiw is something i don't think will be an option and its the reason i settled where i am at.

QuikSand · 02-22-2005, 10:33 AM

Quote:

Originally Posted by Crapshoot

Unless the market value can be established at market prices and to the satisfaction of the owner...

That's a pretty high standard, wouldn't you agree. Most jurisdictions make a pretty reasonable effort to offer fair compensation. Despite what the I-hate-all-government types will consistently argue, most of these laws are set up be people who are actually trying to be fair.

Where you most often run into difficulties is when you have matters like "good will" -- things that are pretty difficult to quantify, but probably go beyond the simple market or replacement value of a piece of commercial property. Same for "sentimental value" and such with residences. And it's these areas where "the satisfaction of the owner" is a pretty difficult standard to reach.

mgadfly · 02-22-2005, 10:48 AM

If the government has the power to take your life or liberty (not only when you've done something criminal - military draft, required shots for children, and all the other requirements the govt has these days) I suppose it ought to have the power to shaft you on your property as well.

That said, when I took property law and we covered this in class I thought fair market compensation wasn't "fair" enough. In extreme cases the govt should be able to take the land to further the public good but the compensation should be FMV * 1.5 or 2.0 so as to discourage its use.

The area that I thought was even worse was the zoning laws and the potential for abuse. There was a county in the state of WA where three developers (who were also politicians) zoned the entire county so that the only property allowed to have developments in smaller than 5 acres per unit lots was property they already owned. There has been a pretty big battle over that, but the courts there are reluctant to step into the mess.

Farrah Whitworth-Rahn · 02-22-2005, 10:48 AM

Quote:

Originally Posted by QuikSand

Despite what the I-hate-all-government types will consistently argue, most of these laws are set up be people who are actually trying to be fair.

Set up to be fair, sure. I don't think laws like this are set up to intentionally screw property owners.

Though I do think the laws are unfair in execution and manipulation of the system when the dollar signs are flashing in the city official's eyes. Manipulation like a city council changing the zoning of a piece of property and only the desired property, or deeming a piece of property to be a "protected wetland" thereby driving down the value, just before the city approaches the owner with the notice of condemnation and their "fair offer". Does it happen all the time? No, I would say it depends on how badly the municipality wants the property.

What recourse do property owners have? To spend money,take more losses and pursue legal action. Seems like government officials have property owners by the balls.

Buzzbee · 02-22-2005, 11:11 AM

Interesting, because this was an issue in Georgia recently. I don't know all the details, and only heard one side of the story, but apparently two recent Georgia bills (SB5 and HB 218) were decidedly pro-government/private business in regard to eminent domain. A public outcry against them has led to them being tabled, but I wouldn't be suprised if they are reincarated later on. Here is a link to a local radio host (Neal Boortz - Farrah, I'm SURE you'd like him) who discussed the topic on the air.

http://boortz.com/nuze/200502/02212005.html

Scroll down to 'MORE SECRET DEALINGS IN MY HOME STATE' for the details.

Albion - I'm not familiar with looking up proposed bills and such, but with your legal background you might be able to research to see if these bills would be egregious abuses or if they are examples of typical legislation found in other areas. Just thought I'd post the link in case you were interested in Georgia's dirty laundry.

Crapshoot · 02-22-2005, 11:33 AM

Quote:

Originally Posted by QuikSand

That's a pretty high standard, wouldn't you agree. Most jurisdictions make a pretty reasonable effort to offer fair compensation. Despite what the I-hate-all-government types will consistently argue, most of these laws are set up be people who are actually trying to be fair.

Where you most often run into difficulties is when you have matters like "good will" -- things that are pretty difficult to quantify, but probably go beyond the simple market or replacement value of a piece of commercial property. Same for "sentimental value" and such with residences. And it's these areas where "the satisfaction of the owner" is a pretty difficult standard to reach.

Quick, its not that Im a "hate-the-government" type, as much as I'm taking the side of the small people who are squeezed out in scenario. We are seeing this happen in NJ with the potential location of the new arena - and we've seen the abuse this is subject to. Governments have gone in and condemned entire areas because WalMart wants to build a new store there.

More so, to me fair means market value, as well as some adjustment for the burden of moving and the costs associated with it- which ends up above market value, so to speak.

sterlingice · 02-22-2005, 12:29 PM

Fun thread

Quote:

Originally Posted by Crapshoot

Quick, its not that Im a "hate-the-government" type, as much as I'm taking the side of the small people who are squeezed out in scenario. We are seeing this happen in NJ with the potential location of the new arena - and we've seen the abuse this is subject to. Governments have gone in and condemned entire areas because WalMart wants to build a new store there.

More so, to me fair means market value, as well as some adjustment for the burden of moving and the costs associated with it- which ends up above market value, so to speak.

This is exactly the danger I could see. All you need is a company that gets all chummy with the city council or that used car salesman brother of the mayor and, bam, there goes a bunch of low income housing for people who can't afford to move.

Quote:

Originally Posted by mgadfly

That said, when I took property law and we covered this in class I thought fair market compensation wasn't "fair" enough. In extreme cases the govt should be able to take the land to further the public good but the compensation should be FMV * 1.5 or 2.0 so as to discourage its use.

This is a sentiment I agree with 100%. I have no problems with the government taking land for the "good of the people" as illustrated by kcchief's KC Speedway example. But it sounds like it's getting out of hand because anyone with the ear of the government can get this happening if they whisper sweet nothings of "extra tax base". Plus with considerations of the above of moving and additional costs and the fact that the government appraiser is probably going to lowball you from the start, FMV * 1.5 seems a much more fair compensation that will prevent quite a bit of misuse of this ability. When you propose an $80M freeway project or $320M stadium, the extra $1M or $5M that you have to pay out to the former home owners aren't exactly going to swing the deal but it'll make them think twice if they have to pay $1M instead of $650K to move in that new Piggly Wiggly (I wanted to use Wal Mart but I think that's been done to death so why not something that sounds funnier).

SI

SackAttack · 02-22-2005, 12:38 PM

There was a story that broke not too long ago about a city that claimed eminent domain because the land in question was going to be sold to a church that wished to build a larger parking lot upon it. The city had no real plans for the property, they just didn't want the parking lot built on it.

Those're the sort of cases that get people fired up over this thing. You'd think they'd have more sense than that.

Farrah Whitworth-Rahn · 02-22-2005, 12:46 PM

I came across this opinion piece this afternoon. It cites some interesting examples of the abuse of eminent domain.

Quote:

Originally Posted by Article

In 1999, the city of Merriam, Kan., condemned a Toyota dealership to sell the land to a BMW dealer instead. That same year, Bremerton, Wash., condemned 22 homes to resell the land to private developers. In one notorious case, billionaire Donald Trump persuaded the government of Atlantic City, N.J., to condemn the home of an elderly widow so he could build a limousine parking lot.

I haven't checked the cases this guy cites, I'm assuming his editor did. Clearly these walk a very fine line on "public benefit".

Glengoyne · 02-22-2005, 01:32 PM

Here locally the city wanted to buy a piece of land from a long time land owner/farmer. They wanted to build a school. The land owner objected to a degree. The specific plot of land the City wanted to buy included an experimental orchard that the farmer didn't want to lose. He offered to give the city adjacent pieces of property that were actually larger than the one they were claiming through imminent domain. At one point the city objected that children would have to cross an additional street, he offered to build pedistrian overpasses across the street. The city won the court case, and the school was built over the farmer's orchard.

As for the fair value question. Look at an example of some property that is in agricultural use, but is right on the border of property that is currently zoned for commercial or residential uses. Ag land in the area might be running $10k an acre. Actual Commercial or Residential land would be worth upwards of $50k an acre. So that land owner is poised to cash in when the zoning changes. A municipality can easilly claim and esentially prove that the land is only worth $10k/acre as it is currently zoned.

I know a few people that have been pushed out of the way by immenent domain, and they are a mixed bunch. One family insists they were screwed, the other two say they were compensated fairly, and the changes actually increased the value of adjacent property they still own. I like the idea of an arbitrator, and I'd like it even more if it the arbitration was weighted toward the landowner like MLB's system leans toward the player.

sachmo71 · 02-22-2005, 01:46 PM

I'd like to see some of the success stories, if they are documented somewhere.
FWIW, I think sentimental value is something that should be taken into account, and compensated for.

-Mojo Jojo- · 02-22-2005, 06:08 PM

I've got to go with the free market on this one. Eminent domain is shady when it's used on behalf of the government, and downright dirty when employed for the benefit of a private 3rd party. It's hard to see it as anything other than a coercive effort to avoid paying the actual market value for the property.

Buccaneer · 02-22-2005, 06:46 PM

I kinda wonder how many here taking up the cause for the "little guy" in eminent domain cases would suddenly switch sides for the govt if it involves environmental issues?

In working for a public utility, we get involved in quite a bit of eminent domain situations (usually easements for utilities facilities). Almost in every case, some property owners feel they have been compensated fairly while others do not.

larrymcg421 · 02-22-2005, 07:46 PM

Go away, and take your bloody bypass with you!

SlapBone · 02-22-2005, 08:24 PM

Quote:

Originally Posted by Buccaneer

I kinda wonder how many here taking up the cause for the "little guy" in eminent domain cases would suddenly switch sides for the govt if it involves environmental issues?

This is a man with his finger on the liberal pulse of this message board

Crapshoot · 02-22-2005, 08:31 PM

Quote:

Originally Posted by Buccaneer

I kinda wonder how many here taking up the cause for the "little guy" in eminent domain cases would suddenly switch sides for the govt if it involves environmental issues?

In working for a public utility, we get involved in quite a bit of eminent domain situations (usually easements for utilities facilities). Almost in every case, some property owners feel they have been compensated fairly while others do not.

This is a man who is a libertarian ?

Barkeep49 · 02-22-2005, 09:19 PM

Quote:

Originally Posted by Buccaneer

Almost in every case, some property owners feel they have been compensated fairly while others do not.

How do they feel in the other cases?

Buccaneer · 02-22-2005, 09:36 PM

Quote:

Originally Posted by Barkeep49

How do they feel in the other cases?

Quite happy because the boys in the Land Office are idiots.

Cap Ologist · 02-22-2005, 09:45 PM

Quote:

Originally Posted by Mr. Wednesday

The government does, and if the property owner disagrees, it goes to court. As I recall, there have been reports of abuse of this (by the government) in Texas.

Back in the '60's the government literally stole a huge portion of my family's ranch. I think they condemned over a 1000 acres for a flood plain for a dam they were building. Everytime I drive by all that land just sitting there going to waste, it's sickening.

randal7 · 02-22-2005, 10:26 PM

One of the biggest problems with this to me is the definition of "public good". If my land sits where there is going to be a dam or a highway, well, getting that to be built is to the public good and tough poopy for me. And it's not like they can put that sort of thing just anywhere. If my land sits where somebody wants to build a mall, it is grossly unfair that they can use the government to steal my land for far less than they would have otherwise had to pay. And if I don't want to move, tough poopy for them. This is for "private good" not public good; I don't buy the argument that increased tax revenue= enough benefit to the public to justify overriding my property rights.

And "fair value"? If I have lived somewhere for a while, it is my home. Chances are I have spent a lot of time and energy fixing things up how I like them, and the place is full of memories. What cash value can compensate me for the landscaping and garden I have worked on for years, or the oak trees that were 6 inches tall when I planted them and now shade the yard? These things can only be replaced with much time and effort, if at all. How about the spot where my child buried her beloved pet when it died? Or the treehouse she played in? What if this land has been in my family for generations? It is outrageous that these things can be taken just so somebody else can get rich.

ISiddiqui · 02-22-2005, 10:52 PM

Quote:

Originally Posted by randal7

And "fair value"? If I have lived somewhere for a while, it is my home. Chances are I have spent a lot of time and energy fixing things up how I like them, and the place is full of memories. What cash value can compensate me for the landscaping and garden I have worked on for years, or the oak trees that were 6 inches tall when I planted them and now shade the yard? These things can only be replaced with much time and effort, if at all. How about the spot where my child buried her beloved pet when it died? Or the treehouse she played in? What if this land has been in my family for generations? It is outrageous that these things can be taken just so somebody else can get rich.

Can't the same be said if the government takes your land for a highway or a dam? And of course, while outrageous, in those cases (of obvious public good), they are Constitutionally allowed to do so.

Of course, though, taking your land for Walmart's benefit isn't, IMO, Constitutionally protected. Public good means that mainly the public benefits, not some company.

Craptacular · 02-23-2005, 08:45 PM

This is a topic near and dear to my heart right now.

Our subdivision was developed in 2002. There is a piece of land (two lots totaling about 3 acres, assessed at $12K) zoned AG that was now surrounded on three sides by homes, and the other side by a street. However, a creek cuts through the property, basically leaving about 1 acre or less of relatively flat land in-between the creek and the street (almost all that land is in the floodplain), and the other two acres on a heavily wooded, steeply sloped parcel. Much of the lot is in a designated "environmental corridor". The land also has the remnants of a historically - significant building on it. The creek is a county-designated "priority stream" that feeds a world-class trout stream, which is one of our village's most treasured features. Almost all of the land is shown on the village master plan as "conservancy". The previous owner was offered access to the wooded side when our subdivision was being planned, and he declined They offered to buy his land and include it in the development (likely as green space, although portions might have just been added to other lots), and he declined. The owner then proceeded to illegally dump tons of fill into the floodplain, hoping he then might be able to build a house there, or sell the lot to someone else who would. The village said "uhh, no", but the DNR says there wasn't enough of a disturbed area for them to get worked up about. Nevertheless, there's pretty much no way anyone would be allowed to build on the street side of the creek, on the filled-in part.

Once our subdivision was platted, the only way for the lot owner to access the sloped, wooded side would be by building a bridge over the creek. There are NO other private driveway bridges in our village. As I mentioned, the land is zoned AG, and shown primarily as conservancy on the village master plan. When our subdivision was finally approved, the time for that piece of land to be developed for any purpose but conservancy or ag seemed to have passed. We (and all of our neighbors) bought our lots and/or homes on that belief, after consulting with the developer, the village master plan, and the village administrator. I live directly across the creek from the wooded part of that lot. Our subdivision was the first one in the state to require rain-gardens and other features designed to help preserve the creek (and the trout-stream it feeds further south in the village).

Anyway, someone recently got an option to buy the land, contingent upon the rezoning of the land from Ag to residential. He'd have to build a bridge over the creek, run his utilities and sewer line on it (over the water), and knock down tons of mature oak trees on the steep slope to build his driveway and house. Needless to say, we (and all our neighbors) fought it. The owner still decided to exercise his option, and bought the land for $70,000, even though it appeared unlikely the board would approve the zoning change. The neighbors signed a petition that kicked in a rule requiring a super-majority (6 out of 7 on our board) to approve the change, and at least three of the board members are dead-set against the change. A collection of neighbors offered to pay the new landowner $80,000 for the lot, and he refused. The neighbors are also willing to pay a large share of that amount if the village were to buy it and use it as a park, conservancy, and historical site.

This battle has been going on for half-a-year now. Right before Christmas, in lieu of just taking a vote and denying the change, the village decided to pursue the process of eminent domain, and would make a park out of it. They are getting an appraisal, and if the land-owner disagrees, he can get his own appraisal at the village's expense. In my mind, it should be pretty easy ... he just bought the lot a few months ago. If the owner and landowner can't agree on a price, the village can take it and give him "fair-market value", which I believe would be set by their appraisal. He'd probably take it to court. We're just worried the village won't want to spend any more money on lawyers. Many of the neighbors wish the village just voted it down, and took their chances in court right away if the owner challenged it.

Obviously, I have a very strong personal bias in this. If we thought there was any chance if having a house built on that land, we would not have bought our lot, and probably wouldn't have moved into the village at all. If approved, this house would basically stare into my great room and master bedroom, and would ruin our enjoyment of the land. Granted, our enjoyment and view are not really factors in any legal decision. I respect the rights of private landowners, and also respect a community's ability to place reasonable restrictions on those rights. This is something that would benefit one family, at the expense of all of the neighbors, and possibly the community at large due to environmental considerations. Whatever the end result, it will be interesting to witness the process of eminent domain in my own backyard ... literally. We just might have to move afterwards.

02-22-2005, 08:13 AM	#8
Flasch186 Coordinator Join Date: May 2002 Location: Jacksonville, FL	i think building a resort might be a bit abusive, ya think? __________________ Jacksonville-florida-homes-for-sale Putting a New Spin on Real Estate! ----------------------------------------------------------- Commissioner of the USFL USFL

02-22-2005, 08:13 AM	#9
Fritz Lethargic Hooligan Join Date: Oct 2000 Location: hello kitty found my wallet at a big tent revival and returned it with all the cash missing	aml, I find myself on both side of the issue. One the one hand, I would like to think that private property is private and secure. On the other hand, I can't tell you how many times I have been driving through a area and thought "boy, if 'they' could just knock all this over and build something nice.' --- I have seen, locally, where an area that is depressed is purchased by the city and held by the redevelopment council, then sold to a developer. Its hard to look at city records and see exactly what happens, because roads are removed and relaid and new lots formed. In every case where I have seen it, the new property is fairly nice, but I still debate the role of government here. Frankly, I think it may be self serving. For instance, if there are 100 small old houses on 25 acres of land, there is a good chance that very little is going into the city coffers since the value is fairly low or the people living on the property qualify for a tax reduction/exemption. However, the 33 decent houses on redrawn plots could result in more than 100k per year in tax revenue. __________________ donkey, donkey, walk a little faster

02-22-2005, 09:51 AM	#16
kcchief19 Pro Starter Join Date: Oct 2000 Location: Kansas City, MO	Our legal eagles here at FOFC can correct me if I'm wrong, but isn't the question the courty is considering simply what does "public use" mean? Or is it the court being asked to consider whether there is a differentiation between residential and commercial landowners? Metro Kansas City has been a frequent user of eminent domain in recent years. We have a small but dedicated fringe group that enjoys putting up very low quality signs protesting eminent domain that in and of themselves blight the very property they usually are claiming is not blighted protesting. Most eminent domain proceedings in the metro involve commercial property, such as the proceedings going on right now for our downtown arena. But hundreds of homes were condemned to make room for the Kansas Speedway, and I'm sure this case could have an impact on the homeowners would are continuing to pursue their protest in the homes they lost there. Like Fritz, I'm of two minds on the issue as well. I generally favor the use of eminent domain if it is for a public use even if the land is condemned by the government and then transferred to a private developer, the Kansas Speedway being an excellent example. That is a facility that has revitalized an entire county and been a tremendous public benefit. But the system isn't perfect. The problem with the takings in that case is that even if the government paid fair market value for the homes, the homeowners would have a difficult time finding another similar home at that price in the same area. In one respect, the only way to provide "fair" compensation is for the government to provide greater compensation than the home is actually worth. The key to this case though is that I have no doubt that if the court strikes down the taking of the land, they will probably cite "public use." Is tearing down old, run down, inexpensive homes fair use to building new luxury high-rise homes? That I'm not sure about. If this was for a jobs center or some other long-term economic boost that would revitalize the greater area, I think you have a case. But replacing homes with homes is a risky proposition for eminent domain. Last edited by kcchief19 : 02-22-2005 at 10:06 AM.

02-22-2005, 11:11 AM	#25
Buzzbee College Starter Join Date: Jun 2002	Interesting, because this was an issue in Georgia recently. I don't know all the details, and only heard one side of the story, but apparently two recent Georgia bills (SB5 and HB 218) were decidedly pro-government/private business in regard to eminent domain. A public outcry against them has led to them being tabled, but I wouldn't be suprised if they are reincarated later on. Here is a link to a local radio host (Neal Boortz - Farrah, I'm SURE you'd like him) who discussed the topic on the air. http://boortz.com/nuze/200502/02212005.html Scroll down to 'MORE SECRET DEALINGS IN MY HOME STATE' for the details. Albion - I'm not familiar with looking up proposed bills and such, but with your legal background you might be able to research to see if these bills would be egregious abuses or if they are examples of typical legislation found in other areas. Just thought I'd post the link in case you were interested in Georgia's dirty laundry. __________________ Ability is what you're capable of doing. Motivation determines what you do. Attitude determines how well you do it. - Lou Holtz

02-22-2005, 07:46 PM	#34
larrymcg421 Head Coach Join Date: Oct 2002 Location: Georgia	Go away, and take your bloody bypass with you! __________________ Top 10 Songs of the Year 1955-Present (1976 Added) Franchise Portfolio Draft Winner Fictional Character Draft Winner Television Family Draft Winner Build Your Own Hollywood Studio Draft Winner

02-22-2005, 07:47 AM	#2
QuikSand lolzcat Join Date: Oct 2000 Location: Annapolis, Md	Has the potential to have very long-standing effects on land use and economic development policy. I agree it raises some very interesting policy issues.

02-22-2005, 07:57 AM	#3
miked College Starter Join Date: Jun 2001 Location: The Dirty	So I don't get this. The government can just step in and land grab if they feel like it? Who decides what "just compensation" really is. I find it pretty crazy that the gubment can just take over your land if you own it, pay taxes on it and probably paid a shit-load of interest over the years to keep it.

02-22-2005, 08:05 AM	#5
sachmo71 The boy who cried Trout Join Date: Oct 2000 Location: TX	As long as the homeowners are fairly compensated, I believe the city should be able to move them, if they can prove it is warranted.

02-22-2005, 09:43 AM	#13
Blackadar Retired Join Date: Oct 2000 Location: Fantasyland	My own belief is that the individual right to own land is pretty absolute. Eminent Domain should be an extremely limited power that is used rarely. I find cases like this to be pretty disgusting, were government and big business team up to screw the little guy - it's an abuse of power of the worst kind.

02-22-2005, 10:21 AM	#21
condors College Starter Join Date: Oct 2000	I actually worry about this my home is a two story condo, the land is extremely valuable on which it was built (250k for a .25 acre) has a nice view of the mountains in the background and is very green area (woods, deer, racoons, fox every so often and its less than 15 miles from philadelphia city limits) i bought the condo about 6 years ago for 75k the same condos are going for 145k right now, alot of development is going on, and the smallest single home you can find normally starts over 200k (we are talking less than 1000 square feet here a very small home), i worry that little alcove of condos while i think it is a great place to live is being viewed as underutilized by developers and at some point could get forced out. I am not sure i would be able to find a place in my area (the wife really wants to move and we have been looking around). If i got less than 150k for my place and a smaller place costs over 200k in the same area i don't think i could live where i have spent my whole life(35 years so far) and i would really miss the place as to me its got everything you could want in driving distance and having a senic veiw is something i don't think will be an option and its the reason i settled where i am at.

02-22-2005, 10:48 AM	#23
mgadfly High School Varsity Join Date: Dec 2003	If the government has the power to take your life or liberty (not only when you've done something criminal - military draft, required shots for children, and all the other requirements the govt has these days) I suppose it ought to have the power to shaft you on your property as well. That said, when I took property law and we covered this in class I thought fair market compensation wasn't "fair" enough. In extreme cases the govt should be able to take the land to further the public good but the compensation should be FMV * 1.5 or 2.0 so as to discourage its use. The area that I thought was even worse was the zoning laws and the potential for abuse. There was a county in the state of WA where three developers (who were also politicians) zoned the entire county so that the only property allowed to have developments in smaller than 5 acres per unit lots was property they already owned. There has been a pretty big battle over that, but the courts there are reluctant to step into the mess.

02-22-2005, 12:38 PM	#28
SackAttack Head Coach Join Date: Oct 2000 Location: Green Bay, WI	There was a story that broke not too long ago about a city that claimed eminent domain because the land in question was going to be sold to a church that wished to build a larger parking lot upon it. The city had no real plans for the property, they just didn't want the parking lot built on it. Those're the sort of cases that get people fired up over this thing. You'd think they'd have more sense than that.

02-22-2005, 01:32 PM	#30
Glengoyne Grizzled Veteran Join Date: Sep 2003 Location: Fresno, CA	Here locally the city wanted to buy a piece of land from a long time land owner/farmer. They wanted to build a school. The land owner objected to a degree. The specific plot of land the City wanted to buy included an experimental orchard that the farmer didn't want to lose. He offered to give the city adjacent pieces of property that were actually larger than the one they were claiming through imminent domain. At one point the city objected that children would have to cross an additional street, he offered to build pedistrian overpasses across the street. The city won the court case, and the school was built over the farmer's orchard. As for the fair value question. Look at an example of some property that is in agricultural use, but is right on the border of property that is currently zoned for commercial or residential uses. Ag land in the area might be running $10k an acre. Actual Commercial or Residential land would be worth upwards of $50k an acre. So that land owner is poised to cash in when the zoning changes. A municipality can easilly claim and esentially prove that the land is only worth $10k/acre as it is currently zoned. I know a few people that have been pushed out of the way by immenent domain, and they are a mixed bunch. One family insists they were screwed, the other two say they were compensated fairly, and the changes actually increased the value of adjacent property they still own. I like the idea of an arbitrator, and I'd like it even more if it the arbitration was weighted toward the landowner like MLB's system leans toward the player.

02-22-2005, 01:46 PM	#31
sachmo71 The boy who cried Trout Join Date: Oct 2000 Location: TX	I'd like to see some of the success stories, if they are documented somewhere. FWIW, I think sentimental value is something that should be taken into account, and compensated for.

02-22-2005, 06:08 PM	#32
-Mojo Jojo- High School Varsity Join Date: Nov 2003	I've got to go with the free market on this one. Eminent domain is shady when it's used on behalf of the government, and downright dirty when employed for the benefit of a private 3rd party. It's hard to see it as anything other than a coercive effort to avoid paying the actual market value for the property.

02-22-2005, 06:46 PM	#33
Buccaneer Head Coach Join Date: Oct 2000 Location: Colorado	I kinda wonder how many here taking up the cause for the "little guy" in eminent domain cases would suddenly switch sides for the govt if it involves environmental issues? In working for a public utility, we get involved in quite a bit of eminent domain situations (usually easements for utilities facilities). Almost in every case, some property owners feel they have been compensated fairly while others do not.

02-22-2005, 10:26 PM	#40
randal7 H.S. Freshman Team Join Date: Nov 2003	One of the biggest problems with this to me is the definition of "public good". If my land sits where there is going to be a dam or a highway, well, getting that to be built is to the public good and tough poopy for me. And it's not like they can put that sort of thing just anywhere. If my land sits where somebody wants to build a mall, it is grossly unfair that they can use the government to steal my land for far less than they would have otherwise had to pay. And if I don't want to move, tough poopy for them. This is for "private good" not public good; I don't buy the argument that increased tax revenue= enough benefit to the public to justify overriding my property rights. And "fair value"? If I have lived somewhere for a while, it is my home. Chances are I have spent a lot of time and energy fixing things up how I like them, and the place is full of memories. What cash value can compensate me for the landscaping and garden I have worked on for years, or the oak trees that were 6 inches tall when I planted them and now shade the yard? These things can only be replaced with much time and effort, if at all. How about the spot where my child buried her beloved pet when it died? Or the treehouse she played in? What if this land has been in my family for generations? It is outrageous that these things can be taken just so somebody else can get rich.

02-23-2005, 08:45 PM	#42
Craptacular College Starter Join Date: Oct 2001 Location: The Mad City, WI	This is a topic near and dear to my heart right now. Our subdivision was developed in 2002. There is a piece of land (two lots totaling about 3 acres, assessed at $12K) zoned AG that was now surrounded on three sides by homes, and the other side by a street. However, a creek cuts through the property, basically leaving about 1 acre or less of relatively flat land in-between the creek and the street (almost all that land is in the floodplain), and the other two acres on a heavily wooded, steeply sloped parcel. Much of the lot is in a designated "environmental corridor". The land also has the remnants of a historically - significant building on it. The creek is a county-designated "priority stream" that feeds a world-class trout stream, which is one of our village's most treasured features. Almost all of the land is shown on the village master plan as "conservancy". The previous owner was offered access to the wooded side when our subdivision was being planned, and he declined They offered to buy his land and include it in the development (likely as green space, although portions might have just been added to other lots), and he declined. The owner then proceeded to illegally dump tons of fill into the floodplain, hoping he then might be able to build a house there, or sell the lot to someone else who would. The village said "uhh, no", but the DNR says there wasn't enough of a disturbed area for them to get worked up about. Nevertheless, there's pretty much no way anyone would be allowed to build on the street side of the creek, on the filled-in part. Once our subdivision was platted, the only way for the lot owner to access the sloped, wooded side would be by building a bridge over the creek. There are NO other private driveway bridges in our village. As I mentioned, the land is zoned AG, and shown primarily as conservancy on the village master plan. When our subdivision was finally approved, the time for that piece of land to be developed for any purpose but conservancy or ag seemed to have passed. We (and all of our neighbors) bought our lots and/or homes on that belief, after consulting with the developer, the village master plan, and the village administrator. I live directly across the creek from the wooded part of that lot. Our subdivision was the first one in the state to require rain-gardens and other features designed to help preserve the creek (and the trout-stream it feeds further south in the village). Anyway, someone recently got an option to buy the land, contingent upon the rezoning of the land from Ag to residential. He'd have to build a bridge over the creek, run his utilities and sewer line on it (over the water), and knock down tons of mature oak trees on the steep slope to build his driveway and house. Needless to say, we (and all our neighbors) fought it. The owner still decided to exercise his option, and bought the land for $70,000, even though it appeared unlikely the board would approve the zoning change. The neighbors signed a petition that kicked in a rule requiring a super-majority (6 out of 7 on our board) to approve the change, and at least three of the board members are dead-set against the change. A collection of neighbors offered to pay the new landowner $80,000 for the lot, and he refused. The neighbors are also willing to pay a large share of that amount if the village were to buy it and use it as a park, conservancy, and historical site. This battle has been going on for half-a-year now. Right before Christmas, in lieu of just taking a vote and denying the change, the village decided to pursue the process of eminent domain, and would make a park out of it. They are getting an appraisal, and if the land-owner disagrees, he can get his own appraisal at the village's expense. In my mind, it should be pretty easy ... he just bought the lot a few months ago. If the owner and landowner can't agree on a price, the village can take it and give him "fair-market value", which I believe would be set by their appraisal. He'd probably take it to court. We're just worried the village won't want to spend any more money on lawyers. Many of the neighbors wish the village just voted it down, and took their chances in court right away if the owner challenged it. Obviously, I have a very strong personal bias in this. If we thought there was any chance if having a house built on that land, we would not have bought our lot, and probably wouldn't have moved into the village at all. If approved, this house would basically stare into my great room and master bedroom, and would ruin our enjoyment of the land. Granted, our enjoyment and view are not really factors in any legal decision. I respect the rights of private landowners, and also respect a community's ability to place reasonable restrictions on those rights. This is something that would benefit one family, at the expense of all of the neighbors, and possibly the community at large due to environmental considerations. Whatever the end result, it will be interesting to witness the process of eminent domain in my own backyard ... literally. We just might have to move afterwards.

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