Tags: Eminent | Domain | Abuses | Common

Eminent Domain Abuses Common

Monday, 25 October 2004 12:00 AM

The Fifth Amendment allows government to legally take private property for “public use” to build needed services like bridges and roads; the legal term for the government’s prerogative over private property is “eminent domain.” However, until Gov. Pataki signed last month’s bill, a property owner had no way of knowing when his home or place of business had been condemned. Property owners also had no way of knowing that they have the right to fight the arbitrary confiscation of their property. Abuse of eminent domain is a violation of the Fifth Amendment.

Pataki vetoed a similar bill last year, even though it had passed the Legislature with unanimous bipartisan support. New York Attorney General Elliot Spitzer had opposed the law, claiming it would be too costly to use the U.S. mail to inform property owners of their rights. Apparently, Spitzer favors the practice of publishing cramped, hard-to-read advertisements in the legal notice sections of newspapers.

Spitzer’s preferred methods are certainly more effective from a practical standpoint — it doesn’t require a law degree to understand that one reason the authorities wish to keep property owners from contesting condemnation is because those owners could well prevail in court against abuse of eminent domain.

Laws are not retroactive, so the eminent domain cases being litigated are not affected by the new law. Brody and the Minnichs are fortunate to be championed by New York’s Atlantic Legal Foundation and the Washington-based Institute for Justice.

These law firms provide free representation and have already succeeded in bringing about an exceptionally favorable settlement for the Minnich family. Though the Brody case is ongoing, the tireless work of Atlantic Legal and IJ ensured that the Legislature could no longer ignore the manifest injustice in the notification process.

Eminent domain abuse is a problem across the country, and IJ has an especially impressive track record doing battle against it. In New Jersey IJ tangled with Donald Trump when his company persuaded state authorities to condemn an elderly widow’s Atlantic City home (Trump needed her land for a limousine parking lot for his casino customers).

It gets worse. Billionaire Trump’s eminent domain apprentices tried to force the widow to hand over her land for a fraction of its market value. IJ stood up to Trump and protected the widow’s rights. She continues to live in her home.

The Supreme Court announced three weeks ago that it will hear Kelo v. City of New London, Conn., a case being litigated by IJ in which a local authority is using eminent domain to take the homes of working-class folks to build a luxury hotel, health club and conference center. Their reason? They wish to increase the city's real estate tax base.

“People get really angry when their homes are taken so that someone richer can live there,” says Dana Berliner, an IJ attorney. “Every house in the country would generate more tax revenue if it were turned into a bigger house or a Costco.”

IJ’s successful petition to the Supreme Court was supported by a friend-of-the-court brief filed by the Sacramento-based Pacific Legal Foundation. The brief argues that the unconstitutional expansion of the ‘public use’ clause eminent domain has given unfair advantage to rich and powerful interests over poorer property owners.

Their brief was joined by two George Mason University economists — James Buchanan, a 1986 Nobel Prize winner, and Gordon Tullock of the Mercatus Center.

Atlantic Legal, Pacific Legal and the Institute for Justice are part of what is known as the freedom-based public interest law movement, an informal affiliation of some three dozen legal foundations that work diligently to uphold the principles of the U.S. Constitution. These independent organizations work across the legal arena to defend freedom of speech, school choice, workers’ rights, religious liberty and economic rights. They work to ensure that no American is denied the fundamental liberties enshrined in our Bill of Rights.

A new book tells their story. Available this month, "Bringing Justice to the People" (Heritage Books, 2004) chronicles the remarkable 30-year history of the freedom-based public interest law movement (full disclosure: I contributed the chapter on freedom of speech). An enterprising TV producer will find in this book’s rich descriptions of landmark cases a veritable blueprint for a “Law and Order”-type television — something on the order of “Freedom and the Law: Stories from the Champions of Individual Rights.”

Susette Kelo, one of the New London homeowners, brings to life the importance of their work: “It is going to mean everything in the world if the U.S. Supreme Court saves my home. I’m so happy for myself and my elderly neighbors, who just want to stay in their homes.”

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The Fifth Amendment allows government to legally take private property for "public use" to build needed services like bridges and roads; the legal term for the government's prerogative over private property is "eminent domain." However, until Gov. Pataki signed last month's...
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2004-00-25
Monday, 25 October 2004 12:00 AM
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