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Tuesday, February 22, 2005

Law - [Updated] More on Supreme Court eminent domain arguments today

An entry earlier today talked about the upcoming oral arguments on the taking of private property for private development. Now some reports on the arguments:

Nina Totenberg (busy lady) reports here (click to listen) on NPR. The blurb reads:

High Court Considers Connecticut Property Seizures
by Nina Totenberg

All Things Considered, February 22, 2005· The Supreme Court hears arguments on a city's plans to acquire residential property for redevelopment by private interests. Opponents to the New London, Conn., initiative say it does not qualify as a project that directly benefits the public.

Dahlia Lithwick reports in Slate, in an article cutely titled "Condemn-Nation: This land was your land, but now it's my land." She begins:
I've witnessed some weird moments at oral arguments over the years, but I'm thinking absolutely nothing could compare with the sight I beheld today: In the midst of argument in Kelo v. New London—a critically important case about the government's right to condemn private land and give it to private developers—the lawyer for the city of New London, Conn., pulls out an actual prop. In response to a query from Sandra Day O'Connor as to whether there's a concrete development plan for what would replace the handful of homes being condemned, Wesley W. Horton hauls out a big poster board with the whole proposed community laid out. Condos here, marina here, yank out this crappy little Victorian house and the health club will go there, he enthuses.

My heart begins to pound. I want in on this deal. And O'Connor looks like she does, too.

[More] And what about HB 1063, authored by Rep. David Wolkins, which would, according to the amended digest, prohibit use of "eminent domain to acquire property for public use to transfer any interest in property to another person for commercial use unless the property owner has rejected an offer from the state or a political subdivision that is equal to at least the higher of 150% of the property's assessed value or the average of 3 appraisals of the property."? It was passed by the House Tuesday. See earlier ILB entires on this bill from 1/23/05 and 1/31/05.

[Updated 2/23/05] The Indianapolis Star has a story today about HB 1063. Headlined "House OKs higher price for eminent domain: Bill would make governments pay a premium to obtain property for commercial development," the story is reported by Matthew Tully. Not pointed out in the story is that the introduced version of the bill wiould have flatly prohibited "the taking of private property by eminent domain for commercial purposes." Hence its direct parallels to Kelo v. New London. The amended version of the bill which passed the House yesterday, however, would simply:

make it more costly for government to condemn private property for the sake of commercial development, as the U.S. Supreme Court heard a case that could lead to even more restrictions. * * *

Wolkins' bill would force cities, counties and other governments to pay a premium for property they condemn to make way for commercial development -- such as new subdivisions, shopping centers or manufacturing plants. The bill could affect several projects in Indianapolis, including Mayor Bart Peterson's push to build a new Colts stadium south of the RCA Dome.

City and town officials from throughout Indiana rallied against the bill, which the House passed by a vote of 67 to 29. "The bill makes it more difficult and costly for cities to do economic development," said Evansville Mayor Jonathan Weinzapfel. "I'm not sure what this bill is trying to fix." * * *

The House bill forces governmental entities to pay property owners in those cases 150 percent of the property's assessed value or the average of three private appraisals. The owner would receive the higher of those two yardsticks.

The Star story notes that:
The House vote came as the U.S. Supreme Court heard arguments in a case that could have sweeping ramifications for cities. In the case, New London, Conn., is attempting to replace a middle-class neighborhood with new development.
Interestingly, reports from the oral argument in that case indicate that although the justices seemed hesitant to adopt the plaintiffs' position limiting "takings", the price paid by the governmental entity may become an issue at some future date -- another parallel to Wolkins' bill. For example, Linda Greenhouse concludes her report today in the NY Times:
How to measure the value - the city has placed $1.6 million in escrow - is a question that is not before the court. But several justices suggested that the longstanding rule, that the eminent domain price reflects the current market and not any expected appreciation from the project itself, was unfair in this context and should be revisited, perhaps in a future case.

Posted by Marcia Oddi on February 22, 2005 07:09 PM
Posted to General Law Related