Wednesday, February 23, 2005

Eminent Domain....What?!

There is a stone farmhouse that's about 20 minutes from my house --it's beautiful. Over the past 15 years the owners have completely restored it (fireplace in each room *sigh*). Each detail of the house looks authentic (the owner has gone to antique sales and flea markets all over the state). Now the state wants to tear down the house to expand the road. Unless they can get the house declared a 'historical property'...they will have no choice in the matter... because of eminent domain they are left without recourse. The state will give them market value, but in NO way can this make up for all the time and work that went into refurbishing this house...
Residents in New London, CT now find themselves in the same situation. The state is claiming eminent domain to kick them from homes they have owned for years.
"Several homeowners filed a lawsuit after city officials announced plans to bulldoze their residences to clear the way for a riverfront hotel, health club and offices. The residents refused to move, arguing it was an unconstitutional taking of their property." (source)
Their case is set to go before the Supreme Court.
I really don't understand this...really... Isn't the right to own property constitutional? It's always pissed me off that if I wanted to build a fort on the sidewalk in front of my house I couldn't...because it's not mine (don't ask why I would want to do that), BUT if someone slips on that same sidewalk because I didn't shovel it --they can sue me... This is worse though... Can you imagine someone coming to your door and saying that they are leveling your house to build a Gold's Gym...?!

Update: FREE's research on Eminent Domain...
Okay, the majority of Eminent law (Shorthand lawyer speak for Eminent Domain Law) has to do with large public works projects like highways, widening of local roads, etc. Big public works, like a new dam for example are also included. The principle being you are never going to get ALL the people who own property it the proposed new reservoir to agree to move, so they must be forced because of the dams overwhelming need. About 20 years ago, the evolution of the case law began to fundamentally change. The two cases that I’m primarily basing my findings on are one evolving Consolidated Freight Ways trucking company who wished to build a terminal in Nashville Tennessee and General Motors Corporation in Detroit Michigan. I will also probably regurgitate some of the stuff the Judge and I spoke about today. So here goes.

What those two cases have proven (as a matter of law proven… that is) is that corporate projects can and often do provide for the greater good much like a public works project conducted by local or federal government can. The idea behind the rulings is that the spirit of Eminent Domain lies with the greater benefit to society, and this can be achieved by both state projects as well as private parties. The Courts have found that not only government can provide for a greater societal good.

The General Motors case is interesting. Back in the 1980’s manufacturing jobs were hemoraging from the Detroit area to America’s southern states at an alarming rate. Unemployment was way up in Detroit and the local economy was failing as a result. Further, the ripples of job loss were being felt state wide.

In steps GM.

General Motors planed a massive new manufacturing facility in the Detroit area. Gigantic in size and scope, it would take up hundreds of square acres. Some of the assembly lines were to be nearly a mile long. There were only a few places in the Detroit area with the right conditions to build such a plant. Near access to highways to facilitate the thousands of vehicles that would be moving in and out of the plant, a location close by a major water source, proper access to the local power grid, area to build a parking lot BIG enough. You get it I’m sure. The local highways leading outside the city at the time weren’t even adequate enough to support the traffic increase of building the plant in a rural area, and certainly a rural power grid could never provide the electricity required. It turned out there was only one place with the right conditions to build the plant. The local Polish Ghetto on the east side of Detroit. The locals in the area had anticipated this need, and when approached by GM, were offering their homes lucky to be worth thirty grand at around a quarter of a million dollars. Obviously even GM could not afford to pay that sum on literally thousands of homes. They opened an Eminent Domain case in Wayne County Circuit Court. The Court’s ruling found that the new plant had the equivalent benefit to the community greatly exceeding that of a new dam or a highway. In fact, it would save Michigan’s economy. The houses were appraised and ordered sold at a value exceeding their original worth, due to the effect the proximity to the new plant would have on property values in the area. In many cases they were sold to GM at 300% the market value had GM not decided to build a plant in that neighborhood. Thousands of jobs were added to the Detroit area, not to mention the benefit felt by the local construction industry. Michigan’s economy was saved.

Now to the Nashville case.

Consolidated Freight Ways (Now bankrupt btw) in the early 1990s was the largest domestic long haul freight carrier in the United States. Nashville at that time (and now) was the fifth fastest growing city in the country. Branching out from the entertainment industry, the city was growing faster than light. Car companies and other manufacturing as well as agriculture, textiles, the Dow Chemical Corporation as well as numerous other business coupled with a centralized geographical location made Nashville prime transportation industry territory. CF planed to build one of the largest trucking hubs in the world in Antioch Tennessee, about nine miles from Nashville city limits. The area at the time was largely small time industrial parks and farm land. The hub ‘obviously’ needed to be in very close proximity to a junction of major highways. The only area around town that fitted the requirements not developed was in Antioch. The local farm owners had no desire to sell their farms so CF could expand its trucking company. Nashville and CF desperately wanted a hub near town. The city’s reason was that to expand further growth in manufacturing and agriculture they required a trucking company capable of moving goods produced. Nashville’s rise would be stalled or stagnated by a lack of adequate transportation. The farmers argued that the hub could be built on property for sale six miles down a two lane road from their location.

An Eminent Domain case was opened in Davidson County Circuit Court. CF’s attorneys argued that CF had to build the hub in the desired location because inadequate roads would force the city to open its own Eminent Domain case against the farmers to expand the two lane road that led to the highway, forcing the farmers out anyway. Further they argued that that proceeding would take such time as to make it unprofitable for CF to build their hub there at all. Their trucks would sit in a massive traffic jam for up to two years instead of move freight, while the farmers argued the same basic case in court, which the farmers would loose. They further argued that that traffic jam which would literally go on 24 hours a day would greatly affect the citizens of Antioch trying to reach the interstate to go to work in the morning. The Court ruled that the greater benefit to Nashville’s citizens was such, that the greater good required the farmers to sell. Their farms were appraised much along the same lines as the homes in Detroit were, and sold much above their normal value.

I agree with these two rulings. My militant libertarian sense of property rights aside, the Framers included Eminent Domain provisions in the 5th Amendment to the Constitution. I agree with the Court’s analogy that these massive corporate ventures were once in a lifetime opportunities. They were unique and required special locations that could never be found without legal intervention. They were indeed equal to a dam or new highway in benefit to citizens.

Mini malls and office buildings however, are in no way the same league.

That is of course my personal opinion. Hotels, health clubs and other such businesses can be built elsewhere, and are certainly NOT one of a kind. I can’t think of a case that could be articulated on grounds that there is only one place on earth you can build an outlet mall. I am however, not prepared to delve into studies on traffic patterns (As I have been doing this on Nashville and Detroit all morning…FUCK!) but I will say this. Case law has shown for the last 200 years or so that property rights can be infringed under certain circumstances. These circumstances are too numerous to completely name here, but obviously we in this country wouldn’t have the awesome highways that we do today had the government not forced some stubborn people to sell their homes. Even their really ‘nice’ homes. So Ala, in this specific case I’d start with the local city counsel or county commission to ascertain the grounds the state government is basing its case on in court. There might be a very sound reason why this home is to be torn down (like a 24 hour a day traffic jam which will soon be imminent) or it could be utter bull shit. Certainly, the local government should pay at least 150% of market value, and Judge McBain stated he’d rule to award compensation for the sweat equity in the home. This would liquidate the property at around 200% of appraised home value. That sounds fair to me. Obviously we are a growing society that needs adequate roads. If the city, state, or federal government could articulate such a need, I might agree. Both the Judge and I wished we’d had expert testimony to hear that showed that need. If the need wasn’t great enough, the government can fuck off in my opinion. As far as private business is concerned, only the CF hubs and GM mega plants show a public benefit as to rate an Eminent Domain victory in my not so humble opinion. Certainly not a mini mall or office complex. There are plenty of places these could be constructed, and don’t require the infringement of a person’s property rights.

What would The Framers of the Constitution think of all this? Well, could they conceive of an eight lane highway? Who knows? This is a problem for the 21st century amenders and legislators to figure out.

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