The Joint Committee on the Judiciary will hold a public hearing on Tuesday, December 4, 2007 at 1:00 in room A2, on land and property issues including eminent domain legislation.
The eminent domain bills are on the state website: H1770, H1466, H1499, H1704, H1732
The best, I believe, is H 1770 (Martha Walz)
An act relative to eminent domain takings.
Martha M. Walz, James B. Eldridge, Matthew C. Patrick, Denise Provost, Christine E. Canavan, James R. Miceli
“SECTION 1. Chapter 79 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by inserting after section 1 the following new section:
Section 1A. The taking of real estate or of any interest therein by right of eminent domain under this chapter or chapter 80A shall be effected only when necessary for the possession, occupation, and enjoyment of land by the public at large and shall not be effected for the purpose of commercial, private economic development, or any private use of the property. Property shall not be taken from one owner and transferred to another on the grounds that the public will benefit from a more profitable use. Whenever an attempt is made to take property for a use alleged to be public, the question whether the contemplated use is truly public shall be a judicial question and determined as such without regard to any legislative assertion that the use is public.”
…the US SupCt’s decision inKelo. It’s rearing its dreary head again.
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p>If anyone is interested, there was an article in Mother Jones a couple of years ago about a nightmare going on in Norwood Ohio (a city that is a suburb of Cincinnati) precisely on topic.
Do you know if any of the bills deal with eminent domain under the urban renewal statutes (c. 121A and 121B)? Seems to me that there, rather than c. 79, is where abuse is more likely to occur.
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p>In other words — let the decision as to whether a taking is for public purposes or not should be made by appointed judges with no expertise whatsoever in economic development rather than through the democratic process.
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p>Please explain why this is a good thing.
I think, Paul, that the bill’s language ensures that a case-by-case legal fact finding is done that would prevent the legislature from over-stepping its constitutional bounds. Remember, land takings should be the exception, not the rule. This language would prevent a legislature from simply declaring “the use is public” (therefore, constitutional).
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p>I don’t think this language changes anything, but rather reaffirms what I think we already know.
We don’t “already know” what the SJC would do to determine whether something is “truly public” as opposed to simply “public”, which is what the MA Constitution states. I just don’t see why the legislature should be handing over its power to a fact determination by judges who a) have no specialization in the area of development and b) could simply use the “truly public” phrase to craft a confusing and incoherent takings doctrine.
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p>It seems to me that the determination of whether a taking is a “public use” should reside in the most publicly accountable branch, the legislature.
is already a question that is routinely litigated. That, after all, was the issue in Kelo along with numerous other state and federal cases. However, the courts generally do defer to legislative findings; this bill apparently would end that practice and make it a purely judicial determination. The “truly public” language is unfortunate and should probably be removed from the bill; otherwise, though, this is just a question of how much the courts should defer to legislative determinations of public use. Note, also, that in many if not most cases, “public use” determinations are made by local authorities, not by the state legislature.
It is indeed routinely litigated, and the Kelo court (correctly) provided the answer to one aspect of what “public use” means, clarifying confusion and hopefully reducing litigation in that area by deferring to the elected branches. As I think we agree, the inclusion of “truly public” in this bill very well may open up an entirely new round of litigation in this area. I believe the spirit of Kelo was to suggest, however, that these determinations are better made by elected bodies than by judges with no expertise in the area of economic development. Unfortunately, this bill goes in the opposite direction.
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p>And yes, the state legislature relatively rarely makes eminent domain determinations itself; I was incorrectly using “legislature” to mean the elected body responsible for the determination, whether state or local.
That’s why I thought the dissenters had it right. đŸ˜‰
…the Court did not want the judiciary to get involved in determining what constitutes a “public use,” and leave it to the political sphere. Of course, that is a complet e abdication of the judicial role in applying the constitution, but that’s the only thing that I can figure as a basis for the Kelo decision. It makes no sense otherwise.
In other words — let the decision as to whether a taking is for public purposes or not should be made by appointed judges with no expertise whatsoever in economic development rather than through the democratic process.
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p>as indicating that you approve of allowing private developers to conspire with the government to make use of the government’s eminent domain powers to enrich themselves. That is exactly what happened in the Norwood OH article that I cited. And, as I understand it, that is what happened in Boston’s former West End decades ago during what was laughingly referred to as “urban renewal.”. It destroys neighborhoods, but what the hell? Who cares? The occupants were only hard-working people who have created a neighborhood for themselves–f**k’em. Is that your opinion?
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p>If the government were to come by and want to buy our little hovel here in Wellesley to make way for a casino, I wouldn’t mind. We’d go to our little hovel in Germany. But where would the other people in the neigborhood go?
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p>/sarcasm.
I suppose I should interpret this to mean that, really, just about every decision that arises out of the legislative is the product of conspiracies within government, the legislature is really nothing better than a bought-off government agency that is completely unrepresentative to the people and in fact representative only to the big corporations.
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p>Therefore, we should have judges make decisions for us in the areas of economic development, environmental protection, and many others, since judges are not bought off by the mightly corporations and clearly have the expertise to determine what is “public” as opposed to “truly public”.
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p>/sarcasm.
I suppose I should interpret this to mean that, really, just about every decision that arises out of the legislative is the product of conspiracies within government…
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p>I had thought that I had said that decisions arise out of conspiracies among state government (legislature, if you wish) and developers. Developers are not part of state government.
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p>Let’s look at this in context. You have three branches of government. Executive. Legislative. Judicial. If the executive and legislative branches are in synch on this matter, where are you going to go? The Hague? The time required to get the executive and legislative branches changed sufficiently to avoid Kelo is so long as to make that option irrelevant.
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p>I’m not sure what “option” is being made irrelevant by the passage of time here. One doesn’t have to wait for an election to mobilize against the decision-making body on public use determinations. One has to wait a long time for litigation to work its way through the system, though, and political mobilization is not an option since the judges are not responsible to the electorate.
Month one, after a new city council has been elected, with lots of support from local developers.
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p>Month two, the new city council condemns (“eminent domain”) a neighborhood at the behest of those developers.
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p>Month three, after a little bit of litigation (“little” because of Kelo) the city has acquired title to all of the property in the neighborhood.
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p>Month four, the city council has transferred title to the property to the developers.
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p>Month five, the developers have demolished the property and started their “re-development” efforts.
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p>Month 24 a new election, which may bring in a new city council that might have resisted the developers.
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p>Now, you tell me. What about “passage of time” do you not understand?
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p>It’s apparent that since the judges are not responsible to the electorate you haven’t spent much time outside of MA. In point of fact, in most of the US, judges are elected. Are you seriously suggesting that elected judges are any more protective of individual property rights than non-elected judges? If so, you quite frankly are a nut. It is non-elected judges that are more likely to be protective of individual property rights. In the example that I mentioned above, Norwood OH, the judges are elected. All over Ohio. I know. I grew up there.
raj again, as condescending and know-it-all as usual. It’s been a pleasure!
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p>Anyway, I guess we’ll just have to agree to disagree.
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p>This is really the key issue. You see prohibiting these sort of takings as “protective of individual property rights.” I, and the majority of the non-elected judges on the Supreme Court, disagree. I see the “just compensation” provision as the protector of individual property rights. Given that the vast majority of property holders, including the ones involved in Kelo, receive above-market value for their property and sell it to the government voluntarily, I disagree that in cases like this the government is violating individual property rights.
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p>But certainly there is an argument on the other side. Right-wingers in particular want to extend your argument and claim that judges should be protective of regulatory takings as well. Perhaps they will succeed in using misdirected liberal outrage of Kelo to trojan-horse the regulatory takings stuff in there as well, and maybe liberals will naively go along with that as well. We’ll see in which direction the non-elected judges go in the future.
Succinctly stated, it is your belief that it is a “public use” for a government to use its eminent domain powers to enrich third parties–private developers. It is my belief that it is not. That’s the crux of the matter.
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p>It is totally irrelevant whether or not those who are subject to eminent domain might receive an “above-market value” for their property. The issues, which apparently you wish to ignore, are (i) whether or not the acquisition is for a “public use” and (ii) whether or not the property owners want to sell. If the acquisition via eminant domain is not for a public use (and I believe that acquisition for purposes of conveying to a third party–such as a private developer is not), it matters not that the property owners may be compensated at above market rates, does it, for the privilege of having had their property stolen from them?
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p>Quite frankly, if the property owners might be compensated at “above market rates,” as you put it, and if they still do not wish to sell and vacate, that should tell you that they are not being compensated at rates sufficiently above what you refer to as “above market rates” to induce them to sell. That should be obvious.
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p>Your last paragraph is just silly. Regulatory takings? Give me a break. If the courts had enforced the common law rules regarding, for example pollution (riparian rights regarding waterways, rights regarding noxious fumes, etc., there would be no problem. But they didn’t. Hence the EPA. There are numerious other examples, including the FCC. And, I notice that you are unwilling to address the issue of “unelected judges” when it is clear that most judges in the USofA are elected.
First of all, your first sentence makes clear that you do not understand my position, so please speak for yourself and don’t attempt to claim that that’s what I believe.
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p>Secondly, the vast majority of the property owners were perfectly willing to sell in the New London scenario. There were something like a dozen or so holdouts. The whole point of eminent domain is to ensure that projects for public use do not get held up because of a small number refusing to sell at any price. This is the obvious point.
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p>Thirdly, you argue that the use of eminent domain when not for public use makes the just compensation issue irrelevant. I agree. What I (and the S. Ct.) disagree with is the proposition that something similar to the New London situation is not “public use”. So we are talking past each other here.
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p>I bring up regulatory takings simply to caution people about what the strategy of the right-wing groups that helped fund the case was (in particular, the Institute for Justice). Much like the attempt to get sympathetic plaintiffs in the Raich v. Gonzalez Commerce Clause case, it was designed to provoke conservative and liberal (misplaced) outrage to move the entire ball forward on the takings issue, including regulatory takings (both from a legal/constitutional standpoint and from a state statutory standpoint).
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p>Finally, I do find it somewhat strange that you are simultaneously critical of those inevitably “captured” lawmaking bodies and look much brighter upon the performance of non-elected judges in this area, when it is many state legislatures and local bodies that are passing anti-Kelo legislation and the non-elected Supreme Court that cut against your position. So I don’t see your point here.
I am a property owner. As such, I have two rights guaranteed, or so I thought until Kelo:
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p>One, that I cannot be forced to sell my property against my will, except in very limited circumstances. Those circumstances are: the property can be taken for public use. Period. Not priate use, even if someone calls the private use “public.” The second is that if the property is taken for public use, I get “just compensation.”
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p>You seem to think that if a property owner’s seond right is respected, the first can be safely ignored. Not so.
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p>If a private devloper wants to do a development that includes my parcel, he can buy it from me. If I am unwilling to sell, he can convince me by paying more. The holdouts ought to get more, because the parcel is worth more to the priate developer than it is to another buyer. Often, the buyer will attempt to conceal its identity to solve this problem. See Harvard University in Allston, for example.
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p>Eminent domain does not exist to rescue a private developer from the holdout problem. The developer’s investors and lenders exist to solve the holdout problem– they can pay more for the holdouts. It does not matter that my neighbors are willing to sell any more than it matters that I wear wool, rather than cotton socks. If I am not willing to sell, then there should be no sale.
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p>Under Kelo, any local government, likely with some healhy campaign contributions, can take the property by eminent domain and “sell” it to the private developer, simply by calling the private development “public.” It is no different from Congress passing any number of laws outside the federal jurisdiction and slapping a pro forma “that’s interstate commerce” finding in the bill. In other words, under Kelo, local legislatures are allowed, even encouraged, to make fraudulent “findings” in complete derrogation of property rights.
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p>To answer your question above: all governmet officials are to be assumed corrupt until proven otherwise. That is why our rights are guaranteed by constitution and enforceable in court. If a government official proves herself virtuous today, tomorrow she is to be assumed corrupt again.
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p>I am glad that this matter is being addressed in Massachusetts. It is a shame that it seems to be by statute. It ought to be in the constitution.
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p>And I think you need “truly” in the text. Otherwise, we have the
…somebody understands the issue at hand.
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p>Eminent domain does not exist to rescue a private developer from the holdout problem.
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p>Nor does eminent domain allow the cities, towns and states to determine what the “highest and best use” of someone’s property is. If the property owner wants to sell to a private developer, fine. If they don’t want to sell to a private developer, why should they be forced to?
Actually, I agree with a lot of what you’ve written here. However, I disagree that what I’m saying is that “just compensation” trumps “public use”. It doesn’t.
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p>But whether you disagree with the underlying point, the fact is that “public use” had constitutionally included public purpose eminent domain, which occasionally meant that claimed land ended up in private hands as part of an overall public purpose. I think that each one of these cases has to be considered on a situation-by-situation basis.
Which is intended to weed out takings when the public purpose is a sham.
Its OK in this instance because he is right and you are wrong. Funny how that works.
…the decision in Kelo really pissed me off. Pardon my French.
There was, briefly, interest in taking Justice Souter’s land in NH and selling it to Walmart for “economic development.” It is probably good that this idea fizzled, but the outrage is entirely justified.
But realize that there is a difference between Kelo being correctly decided (it was), whether or not the New London plan was a good one (debatable), and whether the bill quoted in the diary needs work before it is ready for prime time (it does).
But realize that there is a difference between Kelo being correctly decided (it was)
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p>I will recite for you the relevant portion of the 5th amendment
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p>Explain to us how a governmental taking for the purpose of transferring the property to a third party that is a private entity, is a taking for public use.
The only way that the Kelo could have reached the opposite conclusion is by ignoring a strong line of its own precedent from 1954. It could have done so, of course, but it would have been far more legally radical to go in the other direction.
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p>Let me ask you this…do you think eminent domain used to develop the railroads — perhaps the most important single peacetime development of America’s 19th century — was appropriate?
…the relevant case citations. But, let me ask you this. If there was a strict adherence to precedent, then Plessy would still be the law of the land.
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p>Would you approve of that?
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p>In point of fact, the US SupCt did not get the 14th amendment issue exactly right in Brown vs. Bd of Ed, although they did come to the correct conclusion. They did get it right in the Loving vs. VA case.
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p>BTW, sometimes the text of the Constitution should actually be considered.
was the 1954 case I referenced. I suggest you read it and tell me what it says about “public use” and “public purpose”.
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p>Let me ask you this…do you think eminent domain used to develop the railroads — perhaps the most important single peacetime development of America’s 19th century — was appropriate?
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p>the issue isn’t whether or not I believe that it was appropriate. The issue is whether or not I believe that it would have been constitutional. There is a rather substantial difference, that armchair lawyers apparently wish to ignore.
If you want to limit it to the constitutionality…since the railroad situation was indeed constitutional, I hope you realize that you are simply wrong here. Sorry.
All “public use” means is that the one doing the taking has to say “public use” before completing the sale to the private developer, right?
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p>It’s like the old ketchup in intesrate commerce cases.
you always assume that an elected body and executive are just pawns for business…
…why the Middleboroans voted as they did for the Casino?
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p>I hate to tell you, but the sad fact is that I am relying on the cynicism that comes from experience: the triumph of experience over hope. Dr. Johnson was writing ironically when he wrote the converse.
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p>I’ve had enough experience in town government, as a participant and an observer, and governments in other states to know that commercial interests get their way. Eventually.
Public use is the question for the judges. Will the eminent domain land seizure be for public use or not?
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p>The judges shouldn’t care one whit whether the result is a net gain or loss in the tax base, or an aggregate net gain or loss in property value or wealth.
Eminent Domain is occasionally necessary, but ought to be very rare. Only after all the alternatives are explored, and only for a project that is truly necessary for society (schools and such), should eminent domain be used… and in those cases, home owners should be given far more than fair-market value for the home.
…but it needs to be reserved for public project–roads, bridges, schools, government buildings, water systems, sewage systems and so forth.
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p>It should never be used for the purpose of taking property from one private individual for delivery to another private individual. In my book, that is semi-legalized theft.
but i can play devil’s advocate:
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p>What if a not-for-profit hospital were falling apart and it was one of or the only hospital in the area… and they could build a new one mostly in their parking lot, but a small property or part of that property needed to be taken. Shouldn’t that at least be considered?
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p>As long as there isn’t going to be profits derived from an eminent domain case – and such a case were necessary for the community – then, I could see how a reasonable person could at least consider it.
One, a taking for a “not-for-profit” institution is not a “public taking” All that “not for profit” means is that the institution does not have shareholders who receive the surpluses (a/k/a “profits”) from operations. Other people do receive the surpluses, including, for example, the management running the operation.
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p>Two, in the highly unlikely event that a hospital can’t renovate their existing structures section by section (an obvious solution, which is why I don’t play hypotheticals) and is forced to rebuild in its parking lot, where are the staff and patients supposed to park in the meantime? We’ve had problems galore with parking at Lahey during their expansion, and they didn’t even consider shutting down their parking lot.
Kelo is revolting, but eminent domain can be an important tool in, for instance, brownfield development and situations in which the title is clouded.
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p>I suggest that this can be very much in the public interest even if there is a private component.
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p>Or it can be like what happened in Kelo, which should be against the law.
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p>I suspect that is why this sort of legislation is not a slam dunk–not because policymakers like Kelo but because they prefer not to throw the baby out with the bathwater.
But my question to you is: who should make the decisions about whether something is in the public interest? Democratically accountable legislatures, or judges?
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p>I would assume that if a judge ruled that the use of eminent domain for brownfield development was always unconstitutional, you might have a problem with it. At the very least it is something that should be debated as a policy matter, not turned into a legal matter.
I suggest that this can be very much in the public interest even if there is a private component.
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p>The issue is not whether a taking might be considered to be in the public interest. The issue is whether nor not the taking is for the public use. See one of my comments above for the relevant portion of the Constitution. There is a considerable difference between the two.
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p>And that is one reason why Kelo was such an abomination.
In addition to my point about Supreme Court precedent above, I would point out that the Massachusetts Constitution specifically uses the phases “public use” and “public purpose” when describing takings. So while you are likely incorrect about the US Constitution, you are definitely incorrect about this in reference to the MA Constitution.
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p>See, as just one example involving environmental takings, Article XCVII below:
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So while you are likely incorrect about the US Constitution, you are definitely incorrect about this in reference to the MA Constitution.
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p>the discussion above has been in regards Kelo which was decided under the federal constitution.
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p>Irrespective of that, I see nothing in the MA constitutional amendment that provides for a taking by a governmental entity for the purpose of transferring the property taken to another private entity, which is the entire issue here. And, as I am sure that you are aware, the federal constitution is the supreme law of the land, so any state constitutional provision is subject to that.
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p>Apparently you are the one who doesn’t understand this. The US Constitution is indeed the supreme law of the land. So is Kelo. So on that score there’s nothing to debate, so I don’t see your point. It’s settled and your interpretation is consitutionally incorrect. Period.
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p>Now it moves to whether the MA Constitution provides rights that the US Constitution does not. I would hope you understand that this is a key question, though I’m not so sure. Given that the MA Constitution specifically says “public purpose” even in its text, your interpretation runs into problems on the state level as well.
To borrow a phrase from raj, apparently you are unaware of the concept of federalism.
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p>The abomination that is Kelo limits/eliminates the property owner’s remedies available under the federal constitution. At least until Souter is off the court.
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p>That is why these Kelo fixes are important to incorporate into state constitutions.
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p>You seem to be laboring under the impression that state law, including state constitutional law, must be the same as federal law. Not so, which is why Massachusetts allows, among other things, gay marriage.
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p>I agree with you that “public use” incorporates “public benefit” which is how, for example, extreme regulation might effect the taking of property rights, even if title to the property is never transferred.
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p>I also agree that a private component in a development scheme does not necessarily make a taking unconstitutional. That is why there is provision for determining whether the taking is for a “truly” public use, rather than a sham.
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p>Apparently you are the one who doesn’t understand this. The US Constitution is indeed the supreme law of the land. So is Kelo.
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p>And I also know that Kelo was wrongly decided. Apparently, you do not understand that. The Dred Scott Decision, The Slaugthterhouse cases, Plessy. Lochner. How many more cases do I need to cite to remind you that the US Supreme Court oftentimes gets it wrong, and that they can’t even read the Constitution?
You cited one case from 1954. Apparently you did not read even the syllabus of the case
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p>I have not bothered to read the opinions in the case, but apparently the entire area could have been condemned as a danger to public health.
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p>Is that the best that you could do, one decision from 1954? One decision is hardly a “strong line of precedent.”
I think we need to consider situations where eminent domain may be something that a progressive community actually wants (or needs) to use, and these sorts of bills may restrict some better development opportunities. Consider some examples:
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p>1. Take a mill town with a small land area, like Lawrence for example. Consider if this city owned 10 acres of developable land. But, what would happen if that land was bordered by a mill building that had been vacant and crumbling for the past 40 years. Does there come a time when it is right for this community to be able to take such a building to assemble the site and work with a development that will help convert both the mill and the city land to more productive uses, even if that means developing it for another private use.
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p>2. Consider a small town, like Ipswich for example. Say they want to build a new library. They have a site that will make it a civic monument in their small downtown and help bring additional activity to their town. They are able to secure 90% of the site, but one holdout landowner of a small auto parts store refuses to leave. Following the eminent domain law, the town takes the auto parts store, works to find them a suitable location elsewhere in town, pays the fair market value of the site plus relocation costs. Meanwhile, as the town is designing the new library, the library committee decides that the new building should include a small coffee stand to be run by a local coffee shop. Because this is to be a ‘private use’ within this otherwise public building, the library committee runs the risk of running afoul of a new law that limits private uses on land taken by eminent domain.
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p>3. What about a community that identifies a need for affordable housing in a neighborhood with limited investment. The local community development corporation and the city work together to establish a plan to build affordable housing on vacant lots in the city. But, absentee owners are speculating and refuse to participate.
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p>4. A community is working with a developer that is planning to locate a national headquarters for a biotech company. This will bring very valuable jobs to a community that is starving for the opportunity to have such an employment center in their town. They identify an underutilized site in an industrial section of town and assemble most of the land for the project through private purchases. One lot remains. This lot is ‘owned’ by an individual that died in 1993. His children have also since passed on, and nobody ever put his will through probate. He has 45 grandchildren scattered across 14 states. The attorney for the biotech company realizes that he can either work with the community to have this site taken by eminent domain (the funds go into an account in case the grandchildren want to collect their part), or he can seek out all 45 grandchildren to sign off on the deed. As an alternative, the biotech company can go locate in North Carolina, where more open undeveloped farmland is available to be converted into industrial uses.
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p>5. A local urban government wants to clean up an industrial area into new development sites to compete with surrounding towns that are turning their forests into office parks. The city successfully assembles 40 acres into a new industrial zone. The first potential owners that come through to look at a site research the deeds on this site and conclude that, while they’d like to buy, there are old utility and water right easements that date back to the 1880s, and they are not sure they hold clear title to the land. They ask the local government to do a ‘confirmatory taking’ to clear any remaining unclear title on the land before they buy and develop it.
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p>What I’m suggesting here is that – while often abused – eminent domain is an important tool in the planning toolbox, especially for pursuing urban ‘smart growth’ projects. If the Commonwealth is serious about a commitment to reusing old sites, developing urban centers, developing around transit, etc., sometimes eminent domain is needed.
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p>One concept that I would support: eminent domain should always REQUIRE a vote of the local elected body (not an appointed redevelopment authority) for each taking, so that the community leadership is more accountable to the voters. But, I wouldn’t suggest throwing the perverbial baby out with the bathwater . . . .