Thursday, May 11, 2006

An Essay on Eminent Domain by Walter South

From: "Walter South"
To: "'J Reyes-Montblanc'"
Subject: Essay on Eminent Domain
Date: Thu, 11 May 2006 17:04:55 -0400


An_Analysis_of_Eminent_Domain.doc (92k)

An Analysis of Eminent Domain
by Walter South

�Government is instituted to protect property of every sort� and for this reason �� alone is a just government ��. 1

Mayor Marvin Natiss of North Hills, New York announced in March that he was going to use eminent domain to take the Deepdale Golf Club. 2

The Golf Club is on a 175 acre site of the 40 room English manor �Tullaroan� once owned by J.P. Grace. Club members have included Mayor Bloomberg, Tom Brokaw, Sean Connery, Presidents Nixon and Eisenhower.

Oddly enough there are twenty golf courses within five miles of the site and more than fifty courses within fifteen miles. But the town of North Hills lacks a village owned public golf course. Nearby communities such as Lake Success and Sands Point have their own community owned public golf courses.

Deepdale is probably worth 100 million dollars. As an amenity it would raise property values in North Hills, according to the Mayor and would constitute �economic development�.

As will be pointed out elsewhere, the Court decision in Kelo gave local governments great leeway in determining what is �public use�3 and what is �economic development�.

In an inlet across from Palm Beach, Florida is Riviera Beach. Its Mayor, Michael Brown, has proposed taking a 400 acre site in the town and moving 6,000 residents to build a yachting and residential complex.

The taking by eminent domain in Riviera will be one of the largest takings in the country.4

In Jersey City, St. Peter�s Preparatory School, a parochial school, wants to expand its football field seven yards. To do so it has asked the City to take the Golden Cicada Tavern. The tavern is up against the school�s end line and goal post. The owner is going to court. Father Keenan representing the school stated �I think most would agree that he is trying to get a higher price�.5

In Cheektowaga, New York (a suburb of Buffalo) more than 300 homes are being taken down for a traditional-style town. In Norwood, Ohio home owners are holding out against a developer�s plan to build shops and parking garages on their land, and in Long Branch, New Jersey home owners are fighting a plan to replace their aging beachfront cottages with luxury condos that start at $550,000.6

While it may seem that these examples are somewhat egregious, there are similar cases all over the country; in fact, these cases are far from abnormal. According to the Institute for Justice, a Washington public interest law firm, from 1998 through 2002 there were 10,282 motions filed for or threatened condemnations by eminent domain for transfers from one private party to another private party. There are 4,032 properties currently under the threat of private use condemnations in 41 states.7

There is only one problem with this data. It is not accurate. Most motions for eminent domain are usually unrecorded. There is no official data base. Connecticut is the only state that actually records this data. The Connecticut courts recorded 543 eminent domain and redevelopment filings between 1998 and 2002. At the same time only 31 cases were reported in the newspapers. Since the data cited above comes from a search of newspaper articles on a State by State basis, this would indicate a possible error of 17.5 times between actions recorded and reported. The figure of 10,282 is only the reported cases. This figure may only be the visible tip.7

Charles Hartman in an article entitled Relocation: Illusory Promises and No Relief notes that between 1950 and 1968, 2.38 million housing units had been destroyed by redevelopment projects (probably using eminent domain) and by the mid-1960�s 111,000 families and 17,800 businesses were being displaced by eminent domain annually.8 Eminent domain is in fact a commonplace problem in this country.

Eminent Domain
What exactly is eminent domain?
The power of eminent domain has been assumed to come from the inherent power of the sovereign. The term originated in the mid-17th Century from a legal paper written by a Dutch jurist Hugo Grotius in 1625. In his paper he used the Latin term dominium eminens or supreme lordship to explain the concept.9

In England it is called �compulsory purchase� and in Australia �compulsory acquisition�. In legal systems based on English common law it is basically the power of the state to appropriate real property for its own use without the owner�s consent.9

Traditionally the use of eminent domain has been for the acquisition of real property when a public project, such as a public school or road is needed. When the owner of the needed real property refused to sell or negotiate, the site could be taken by eminent domain. In most jurisdictions the power of eminent domain requires just compensation be made. 10 11

But, the traditional use of eminent domain became greatly altered after the Supreme Court decision in Berman v. Parker (348 U.S. 26 (1954). The case was decided in 1954 and underpinned the legal justification for Urban Renewal.12

Berman v. Parker involved a thriving department store in Washington D.C. which was a part of a larger parcel that had been condemned by the City�s redevelopment agency and had been declared �Blighted� as required by the legislation authorizing urban redevelopment and slum clearance. Congress had permitted the development of plans for the elimination of blight, and the City developed a redevelopment plan to achieve this purpose. The Plan included the department store.

When the U.S. Supreme Court heard the case they ruled in favor of the City.

Justice Douglas wrote the majority opinion for the Court. He stated that a community could decide to be attractive as well as safe and eminent domain was justified to accomplish this goal. �We deal in other words�with the police power.� The Court obviated any need for the public to actually use the condemned property. The property could actually be used by another private party as long as the taking furthered a public purpose.13

A second case in which the U.S. Supreme Court�s decision further altered the framework for and use of eminent domain was Hawaii Housing Authority v. Midkiff (467 U.S.229 (1984).

In 1967 the Hawaii State Legislature authorized the Hawaii Housing Authority to use eminent domain to condemn a fee simple interest in land which was leased, for the sole purpose of conveying that interest to another private party. The other party was often to the lessee who owned a house on a leased site. The purpose of the authorization was to break the Bishop Trust created by descendents of King Kamehameha the Great. These were large land holdings which had been inherited. The Trust refused to sell their holdings to lessees.14

The lower Court had held that this use of eminent domain was no more than a �naked� transfer from one private party to another private party and had no �public� purpose.

But the U.S. Supreme Court held for the Housing Authority. The Court held that once a legislative body had declared a public purpose there was no reason for the Court to interfere. The effect of the ruling meant that henceforth �public purpose� became �public use�.14

Ironically the decision in the Midkiff case enabled lease holders14 to buy freehold interests at leaseholder�s values. This was economic nonsense because leasehold values could never be greater than fee simple values. The result was Japanese investors bought up Oahu leaseholds for what the locals felt were fortunes, tore down the aging suburban bungalows and built vacation homes to be used part time. The leasee holders who sold now had a �fortune� to invest in new housing.They in turn drove up all housing prices in Oahu. In the end there was an orgy of housing speculation and a transfer of the most valuable land to foreigners. Not at all what was anticipated.15

In 2005 the U.S. Supreme Court heard a third case, Kelo v. City of New London (545 U.S.___(2005) and in essence codified these earlier holdings.

For several years the City of New London had been trying to redevelop land in their Fort Trumbull area. In an effort to do this the City of New London reactivated a private non-profit corporation called the New London Development Corporation to give the City assistance in planning for the redevelopment along the Thames River. The City also gave NLDC the power of eminent domain. Aided by grant money, the NLDC held meetings and developed a plan for ninety acres along the river. It was decided that NLDC would continue to own the lands to be developed, but the site was to be leased for a long term. Subsequently Pfizer Inc. entered into a lease for the site after responding to an RFP. 16

According to the attorney who argued the case for New London, the City had considerable involvement with both the public and the state in the planning process for the site. Pfizer was not the chosen developer when the plan was adopted. The plan was not the result of a favor to someone who was well connected to the City.17

Among the parcels included in the plan were some sites which happened to be in the area plan but which were not �blighted�. These parcels were condemned only �because they happened to be in the development area.� One of the houses belonged to Mrs. Kelo who had lived in the house on the waterfront her entire life.18

When the Kelo case was heard by the Supreme Court of Connecticut, the Court held that 11 of the 15 homes could not be taken, but for the remainder, including Mrs. Kelo, the taking was constitutional. The court ruled that the taking was authorized by the state�s municipal development statute and was a part of an economic development project and thus qualified as a public use. The Connecticut Court relied on both Berman and Midkiff 19 in their ruling.

In granting certiorari the U.S. Supreme Court stated that they were �to determine whether a city�s decision to take property for the purpose of economic development satisfies the �public use� requirement of the Fifth Amendment�.20

The U.S. Supreme Court in Kelo v. City of New London (545 U.S.___(2005) found in favor for the City.

The Court held that �the sovereign may not take the property of A for the sole purpose of transferring to another private part B�it is equally clear that a State may transfer property from one private party to another if future �use by the public� is the purpose of the taking�. 21
In the Kelo ruling the Court relied on their earlier rulings in addition to the Berman and Midkiff cases. In these cases the Court allowed the condemnation of private property for the benefit of other private parties based on the assumption that the elimination of social conditions were permissible as a �public benefit� and as such qualified as a� public use�22a

The Kelo ruling was a narrow 5-4 decision but it gave very wide latitude to local governments to decide when eminent domain may be utilized for a public purpose for �economic development�. 22b

In this decision the Court stated that there is no difference in current usage between �public use� and �public purpose� as far as the Court is concerned. Condemning land for economic revitalization is nothing more than a public benefit and meets the public use/public purpose requirements for purposes of the Fifth Amendment�s Takings Clause.23

In Kelo the Court also stated that it was no longer going to revisit its present expansive view of the definition of eminent domain between �public use� and �public purpose�.24

Legal analysts who have studied the Kelo ruling feel that there are several key factors or elements in the definition as to what constitutes sufficient use by the public. The factors are:
First, there needs to be a rigorous planning process. The Court stated that a private to private transfer alone is unconstitutional and any pretextual purpose merely to accomplish such transfers would also fail. However, when the taking was for the purpose to revitalize the economy by creating jobs, or to generate a significant increase in tax revenue, or to encourage spin�off activities (such as maximizing public access to the waterfront), and if the plan that was adopted was in accord with a carefully considered and formulated development use and was in accord with state statute, then eminent domain is justified for economic development. In summary if the plan meets the above criteria it passes the test.

Secondly, analysts point out that the Court now has a policy of deference to legislative judgments in determining what constitutes, or what is needed to justify eminent domain in public takings. In fact, the Court has gone even further and has absolutely declined to require that public benefits could accrue with any reasonable certainty.

Thirdly, in this ruling, the Court refused once again to deal with the issue of what is just compensation.

But the Court did emphasize that their opinion does nothing to preclude any State from placing further restrictions on its exercise of takings.25

Justice O�Conner in the dissent said that if economic development takings meet the test of public use the effect is to �delete the words �for public use� from the Takings Clause of the Fifth Amendment�26.

In other words, according to the analysts, now the only issue is process and process only.27
In summary, the Court decision in Kelo validated the City�s opinion that a new owner would be more productive economically than the existing owner, and this would constitute an economic benefit that could trickle down to the community28. Berman v. Parker basically held that the end justified the means29 and Kelo reaffirmed that opinion.

The battle line is now in the State Legislatures and State Courts. Only the States can now grant their citizens greater Constitution rights than those enshrined in the Constitution but completely eroded by the Supreme Court.30

State Laws
Since the battle is now a State issue, what is the atmosphere in the states?

Compilations done by Berliner in 2002 show that Alaska, Delaware, Georgia, New Hampshire, and Washington DC do not report any abuses of eminent domain for private parties.31This is not to say it is prohibited by law in these states.

Other states such Massachusetts would probably not favor condemnations for economic reasons.

At present seven states allow condemnations for private party transfers for �economic� development�. These states are Connecticut, Kansas, Maryland, Michigan, Minnesota, New York, and North Dakota.

Berliner also reports that the largest numbers of condemnations for conveyances to private parties are in the states of: California, Kansas, Michigan, Maryland, Ohio, Pennsylvania, Florida, and New Jersey.

Berliner states that from a legal point of view the worst state laws for condemnations of one private party to another private party are: Missouri, Kansas, and New York.32

State Responses
With the Kelo decision what can be expected in states like New York which permits the use of eminent domain for �economic development�? The following changes may be anticipated:
(a) Continued use of eminent domain to assist commercial development. (Look at Brooklyn.)

(b) Increased use of public-private partnerships between developers and government agencies for the use of taking land from recalcitrant sellers and to obtain cheaper financing via municipal revenues and general obligation bonding. (Look at Columbia�s expansion program.)

(c) Continued use of eminent domain in cases were �last standing parcels� cannot be purchased on the market for �reasonable� prices. ( Look at the New York Times expansion.)

(d) More emphasis on careful planning and more transparent developments by public agencies to create a fa�ade of fairness in order to meet future court challenges. The Court in Kelo placed great emphasis on the process.

(e) This will be an issue for New York in particular. The Dormitory Authority in New York, for example, holds a �Public Hearing� on proposed bonding two days before the Board�s vote to approve the action. It seems at that point to be a foregone conclusion. To further limit attendance at the hearing they are held during the day at their offices. To access the building it is required that your name be on a list with prior approval. (They explain this is because of the need for higher security.)

(f) It is obvious that the Federal Courts have abandoned civil rights as an issue in property rights. It can be anticipated that in all states there will be an increase in pressure on State Governments to resolve land use issues. It remains to be seen if, and how states will respond.33

Problems with Eminent Domain
With the battlefield over eminent domain�s private takings moving from the Federal Courts to the State there are several very serious problems with this urban planning/political phenomenon.

The Rational Problem:
�Public use� has been reduced to a reduction ad absurdum. It is difficult to think of any circumstance where the proposed economic benefits to a community cannot be related to a conceivable rationality.34

O�Connor lambasted the logic of the Court�s Kelo decision by stating that there is �Nothing�to prevent the State from taking a Motel 6 and replacing it with a Ritz-Carlton�.�35

No one is safe, no home will generate more business than a Costco and no small business will generate more jobs than a business park. Thus everything is up for grabs because �economic development� with an increase of taxes and jobs is the justification for eminent domain.36

In addition there is another underlying problem. Why should we assume that the taking of a successful business in a blighted area is going to prevent blight from returning?37 Is �blight� being eliminated or merely being pushed to other areas of the municipalities?

The Decision Problem:
First, who makes the initial decision to utilize eminent domain?

The idea implicit in the Kelo decision is that municipal political officials and their functionaries will make the initial decision as to where to implement �economic redevelopment� projects and who they want to work with, and when to use eminent domain. The problem is that many of these decision makers are prone to parochialism, cronyism, and political favoritism. And, the current system of campaign contributions and party support has lead to even occasional political corruption. Is it not possible that campaign contributions will now have the last word on the application of the term �public use�?38

Secondly, there is a serious problem that when a decision is made how will that decision be implemented. After Kelo the identification and the elimination of adverse conditions is no longer needed to justify a private taking provided that the taking is not arbitrary. What is required is a municipal redevelopment plan arrived at by a careful planning process. But it is hard to understand how any functionaries in any municipality could be so stupid as to not resort to some boilerplate language to make the required findings.

Just look at any EIS to understand this. In New York City there are consulting firms who have never seen an EIS they did not like, or a finding that could not be mitigated very inexpensively.

Thirdly, the Supreme Court has stated that it has a policy of deference to legislative judgments in determining what constitutes acceptable criteria or what needs justify use in public takings.39 Just who is going to provide oversight?

In fact as has been pointed out, the Court has gone even further. The Court has declined to require that public benefits could accrue at all with any reasonable degree of certainty. The Court has held, as in Berman v. Parker, basically that the end justifies the means.40
Hence, municipalities and politicians encourage the process because they can work with whomever they want and however they want.

And, developers love the process since they can now use eminent domain. With eminent domain developers do not have to negotiate, and they don�t have to pay actual market value for their new property.

Local bureaucrats who function in the agencies that facilitate the process can praise how many new jobs will be created and how much more new taxes will be generated.41

All the parties can claim they are working together in a public partnership for civic improvement.42

And, of course eminent domain will �only be used as a last resort�.42

The Funding Problem:
Most redevelopment schemes contemplate borrowing money by issuing bonds. There are three problems with this funding.

First the agencies who issue these bonds are fee driven. These agencies are not necessarily driven by the needs of the public, or the good of the public.

For example, take the case of the Dormitory Authority of the State of New York; this is an agency which tries to be self-supporting. Its budget is derived from the fees they receive for their efforts. These agencies are �off� budget authorities. DASNY, for example, gets a fee of 2% of the face amount of an issue. On a recent issue for Columbia University for $500,000,000 the Agency fee would be $10,000,000. It is in the interest of the Agency to make the deal, which may or may not be in the interest of the public.

Secondly, since these deals are �off� the books they are able to exceed the borrowing limits of the State government and are hence, not really accountable to the state legislature. State governments love these deals because things can happen with minimal oversight.
Thirdly, the borrowers love the deals because of the deep governmental subsidies which come with the loan. While it is true that the repayment of these bonds is based on the strength of future revenue of the borrower, the state and the Federal Government is in fact subsidizing the borrower and hence insuring repayment. The borrower is obtaining tax exempt bond financing which means paying less than market for funds.

In addition other government agencies are spending money for infrastructure improvements and the borrower is also getting real estate and income tax breaks. Is it any wonder that a new business (such as a Wal-Mart or Columbia) is willing to relocate into the project area? The gainer is the borrower. The losers are the taxpayers. The promise to the public is the trickle down effect from a larger pie.43

Funding helps drive the process. The State government gets the credit for economic development for increased tax revenues without oversight, the state agencies get the fees and the borrower is the recipient of state welfare.

The Blight Problem:
There are two problems with blight. The first problem is the definition of the word. �Blight� can mean anything. But if a word can mean anything, then actually it means nothing. For example, some of the justifications for a taking involving �Blight� designations have been: single family homes; because their yards were too small; they lacked two car garages; a school bus company because it was �unproductive and stagnant�;� diverse ownership� of tax lots; �inadequate planning�; anything not built in the last few years; areas which have no current blight but could be blighted in the future. In short, almost any rationale is rational.44

Secondly blight is self-fulfilling. Hearings are announced and held on the area to be �blighted. Property owners wail, lament and moan, but often a deal has already been made between the city and the developer. In some states, such as New York, the developer has already prepaid the expenses of the condemning agency (The Empire State Development Corporation) well before any public action has taken place.

Once the blighting hearing is announced publicly some owners sell. These sellers have wanted to sell anyway. The developer or the City immediately boards up or tears down the purchased property. Others then sell and move for the right price. Commercial leases are not renewed. Municipal services are reduced because there are fewer people. Trash builds up and crime moves in. Some property owners refuse to sell. Those who refuse are told this is really no problem because if you do not sell your property will be taken. Now the area begins to look blighted.

Under the threat of eminent domain no one will invest in their property, no one will rent or remodel, and no business will expand. With no hope most cave in. Most eminent domain cases are settled �voluntarily� because of the costs. Any holdouts at this point are characterized as obstacles to progress, and as last men standing and are taken by eminent domain.45

The Compensation Problem:
The word �just� as used in �just compensation� used to imply fairness or justice, as in adequate, or as made whole. But today its meaning is closer to the phrase it is �just money� meaning its real value is nil. Professor Merrill has stated that�The most striking feature of American compensation law�.is that just compensation means incomplete compensation.�46

The term fair market value fails to consider factors normally considered in negotiations between a buyer and a seller which would take place in a voluntary transaction. For example, a manufacturing site being sold for a commercial development is valued as a manufacturing site, and a single family home being condemned as a site for Costco is a single family home. Bottom line, just compensation is neither compensation nor just.47

Furthermore, compensation in eminent domain does not pay for all improvements, pays nothing for lost business, or business goodwill, nor for losses while the business is closed, pays very little for relocation expenses, nor the cost of opening a new business. Hence, most businesses fail to reopen after condemnation.48 And as was pointed out in the Kelo decision the Court declined to discuss the compensation issue.49

The decision in Kelo was not a constitutional decision, it was a decision about the definition of the English word �Public� as found in the Fifth Amendment �Public Use�.50

In a term straight out of Orwell, �Private Use� of another�s private property now means �Public Use�. 50 And, the difference in value belongs to the new private owner.

Defenses to Eminent Domain
How can an owner of real property in one of the States, such as New York, who is facing an eminent domain action for reasons of �economic development� (i.e. a case where a private party is being force to give his property to another private party) defeat the process?

(1) Non Legal Defense:
The best defense is not to let the case get to court. Most defeats of eminent domain threats never get to court. Grassroots organizing and local political pressure and even forced ballot initiatives can kill many of the projects. But saying enough is enough isn�t enough. A successful defense requires much more effort, much more time, and much more money. And in most cases those who begin the fight will not be there for the end. Eminent domain can be defeated, but have no illusions.51

(2) Legal Defense:
Eminent domain can be fought in the courts. But this strategy depends on the state in which the action is initiated. If such a case is brought in Massachusetts, one of the states which may not favor a private taking for another private party, maybe the taking can be defeated. But if the case is in New York, it would probably be decided in favor of the new owner. And, if the case were to be appealed to the Supreme Court it would probably not be given certiorari.

In some cases it may be possible to prove no �economic development� is taking place. For example, if the State is contributing large amounts for infrastructure, is giving huge tax concessions, and grants, it maybe that there is in actually no growth at all.

In the case of Columbia University�s expansion into 18 acres in Manhattanville, the City is actually taking all of the site off of the tax rolls, while still providing municipal services such as fire and police, and at the same time giving the College tax exempt bond financing, as well as giving free all of the land under all of the streets and sidewalks. The question arises, how many years before this corporate subsidy shows black ink for the City?

(3) The Hands-Off Defense:
In this case the owner finds a reason for not my property. The owner obtains Landmarking or Historic Significant designation for his property. This can be defeated but not so easily. If the owner can find a rare animal or insect or extremely toxic pollution problem maybe the buyer will see the future cost too excessive. This may not stop the process but will certainly slow it and create publicity.

(4) Poison Pill Defense:
In this case the owner makes a deal with a speculator and gives up a percentage of the profits if the property is acquired. The speculator develops an alternative plan for redevelopment of the site, files for permission to rebuild, and obtains a financing commitment under the proposed rezoning. The real intent here is to drive up the price, there is no real intent to develop. Now the property, if condemned, is worth several times more than the pre-condemned value.

The developer now has to eat the drastic increase in value and give new value to the owner who splits with the speculator. (There are actually people in this business.)

(5) The Embrace Defense:
In this case the owner says that he has been waiting for this chance to redevelop and he makes a deal with another investor who is a competitor with the private party selected by the government. Rather than sell the property to the favored buyer provided by the government the owner sells to his buyer who develops his plan.

(6) The Offense Defense:
In this case the owner demands the sites which abut his site be condemned by eminent domain and be given to him for his proposed development rather than redevelopment proposed by the City�s developer. It is even better if the owner can claim his proposal is actually better because it is for a greater benefit to the community such as affordable housing or greater tax returns to the municipality.

(7) The Church Defense:
In this case the owner sells the property to a Church before condemnation. The Church claims because of the separation of Church and State the property may not be taken, of course for an outrageous amount maybe a deal can be made in which the original owner is compensated for his trouble.

(8) The Legislative Defense:
This defense is both difficult and expensive but it is to get legislation changed in those States which permit takings for �economic development�. The change is to prohibit or to protect private owners from losing their property to other private parties. All of these transfers are basically about gain by the new owner.

Changes in eminent domain
Can changes be made to eminent domain which would make it more equitable? It is obvious in modern urban society there remains a need for eminent domain. When a community needs a school, or a road, it seems hardly reasonable that a few can hold up the needs of many.

When the taking is clearly for a public purpose, and there is a clear transparent process which is agreed to by a majority, then why cannot the public pay twice or even triple value for private property taken for such a public purpose? If an individual owner has to sacrifice for the public why not reward the individual for his contribution for the good of the community?

Other countries, for example Australia, provide extra compensation when a home is condemned. Australia pays up to 10% in addition to market value in these cases.52 Maybe payment could be increased based on tenure.

The Takings Clause largely permits �the government to do what it wants so long as it pays the charge�.53 A reform would require more complete compensation for taken property.54 Providing greater compensation would also discourage local governments from takings without prohibiting it all together.55

But in addition, there is obviously a need for growth and renewal in all communities. If the taking is from one private party to another private party, then there is even more need for this action to be subject to the approval and rewards process. It seems in these cases, if permitted, then a more extensive public approval process needs be undertaken to be certain that the Community approves. In these cases perhaps a referendum should be required and when the land is taken the owners should receive maybe five times the appraised value for their sacrifice to the public good.

After all, it appears that some of these condemnations are little more than land grabs by politically well connected developers at bargain prices, if the prices were not bargains then the grabs would seriously slow and probably end.

Justice Thomas in one of his dissenting opinions said that the history of urban renewal in this country has been a history of discrimination against the oppressed�politically powerless, urban ethnic and economic minorities�to make room for upscale commercial facilities.56 The recent history of eminent domain abuses clearly continues to reflect in his words.

With Kelo the word �public� now actually means �private� and 2006 is actually 1984.57

The Associated Press58 reported in January that more than enough needed signatures had been submitted to the Town of Weare, New Hampshire to bring to the voters a petition to have a private home in the town seized by eminent domain for �economic development�. The purpose of the petition was to build an Inn called the �Lost Liberty Hotel�. The site for the proposed Inn was the home of Supreme Court Justice David Souter. Souter had voted with the 5-4 majority for Kelo v. City of New London.

1Quote is from James Madison and is quoted in Dana Berliner Public Power. Private Gain Published by the Institute for Justice, Arlington, Virginia, April 2003 Page1
2 The New York Times 24 Mar 06
3 The Wall Street Journal 28 Mar 06
4 Los Angeles Times 29 Nov 05 5 The New York Times 29 Oct 05
6 The New York Times 30 Jun 05
7 Dana Berliner Public Power. Private Gain Published by the Institute for Justice, Arlington, Virginia, April 03 Page 2
8 Charles W. Hartman �Relocation: Illusory Promises and No Relief� 57 Virginia Law Review 745,745-746 (1971)
7 Dana Berliner, Public Power, Private Gain Published by the Institute for Justice, Arlington, Virginia, April 2003 Page2
8 Charles W. Hartman �Relocation: Illusory Promises and No Relief� 57 Virginia Law Review 745,745-746 (1971)
9 �Eminent Domain� from Wilipedia Pages 1 & 3
9 Ibid Wilipedia Page 1
10 Ibid Page 1
11 Note: Frequently in the context of eminent domain takings the word� condemnation� is used when property is taken. But its use in this context should not be confused with the use of the word when a building is subject to condemnation on the grounds of health or safety issues. In the former case the owner loses his real property, in the later he retains the
real property but is required to rectify the offending situation.
12 David L.Callies �Kelo v. New London: A Requiem for Public Use in The Supreme Court Rules on Eminent Domain for Private Redevelopment: Kelo v. City of New London Published by the American Bar Association 13 Jul 05 Page 1
13 Ibid Callies Page 2
14 Ibid Callies Page 3
15 Ibid Kanner Pages 5-6
16 Ibid Callies P)ages 4-5
17 Wesley Horton � Chicken Little in Action� A paper presented on 12 Jul 05 at the American Bar Association Teleconference entitled The Supreme Court Rules on Eminent Domain for Private Redevelopment: Kelo v. City of New London Page 3
18 Ibid Callies Pages 4-5
19 Ibid Callies Pages 4-5
20 Ibid Callies Pages 4-5
21 Ibid Callies Pages 4-5
22a Ibid Kanner Page 6
22b Ibid Callies Pages 1& 10
23 Ibid Callies Page 1
24 Ibid Callies Page 1
25 Ibid Callies Pages 5 & 7
26 Ibid Callies Page 8
27 Ibid Callies Page 10
28 Ibid Kanner Page 1
29 Ibid Kanner Page 4
30 Ibid Kanner Page 10
31 Ibid Berliner Page 2
32 Ibid Berliner Page 2
33 Ibid Callies Page 11
34 Ibid Kanner Page 10
35 Ibid Callies Page 9
36 Ibid Berliner Page 9
37 Ibid Horton Page 1
38 Ibid Kanner Page 17
39 Ibid Kanner Page 7
40 Ibid Kanner Page 4
41 Ibid Berliner Page 4
42 Ibid Berliner Page 5
42 Ibid Berliner Page 5
43 Ibid Kanner Pages 14 &15
44 Ibid Berliner Pages 3 & 5
45 Ibid Berliner Pages 4 & 6
46 Ibid Kanner Page 5
47 Ibid Kanner Page 5
48 Ibid Berliner Page 7
49 Ibid Kanner Page 3
50 Ibid Kanner Page 2
51 Ibid Berliner Page 3
52 Ibid Callies Page 7
53 Ibid Callies Page 4
54 Thomas W. Merrill �How To Reform Eminent Domain� A paper presented on 13 Jul 05 at the American Bar Association Teleconference entitled The Supreme Court Rules on Eminent Court on Eminent Domain for Private Redevelopment: Kelo v. City of New London 13 Jul 01 Page 3
55 Ibid Merrill Page 4
56 Ibid Kanner Page 11
57 Ibid Kanner Page 16
58 Kathy McCormack �Eminent Domain Activists Target Souter� Associated Press Net 21 Jan 06

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