Casualty of Capitalism

Exiled into Wilmington, Delaware by virtue of corporate layoffs. (Note: Unless otherwise stated, all photos on this blog are Copyright 2005, Michael Collins, and cannot be used without permission.)

Location: Wilmington, Delaware, United States

Graduate of University of Maryland School of Law; University of Maryland, College Park (Economics/Political Science).

Wednesday, February 23, 2005

Eminent Domain, Pt. 2

Yesterday I wrote about how dangerous the abuse of eminent domain is. Today, there is a story in the Washington Post about how yesterday's Kelo v. City of New London, Conn. case might affect the DC baseball stadium plan should the Supreme Court side with the plaintiffs.

The city needs roughly 21 acres to build a baseball stadium for the Washington Nationals near the Anacostia waterfront, and some of the landowners around the stadium have said they do not want to sell.

"Assuming the [Supreme] Court rules that there are constitutional restrictions on the power of eminent domain for private purposes, the issue will be whether the stadium is really for a public purpose or the giveaway to Major League Baseball that people say it is," said Dale Cooter, an attorney who represents the owner of a porn shop on the baseball site. "This is MLB masquerading as a public good." The owner of the shop does not want to move.

David A. Fuss, a land-use attorney at Wilkes Artis, agreed, saying the "ultimate impact [on the District] could be that condemning private property for baseball doesn't meet the Supreme Court's ruling on what are the standards of public use.

"That could grind to a halt the entire stadium construction and development," Fuss said, and leave landowners able to demand whatever price they want from the city.

Though a soon to be big fan of the Nationals, I hope DC loses on this one. If the precident is set that the government can take private property for any greater public use, including giving the land to private companies for the purpose of economic development (thus generating larger tax receipts), then private property rights in this country will be nothing but a myth.

But DC also has reason to be optimistic that a decision in the plaintiff's favor will not hurt their plan to use eminent domain to evict the resident porn peddlers from what they hope will be the stadium grounds.

[DC Mayor Anthony] Williams disagreed, saying the Kelo case is unlikely to affect the stadium because the facility would be owned by the city. But he did say that if the ballpark were leased at "too low a rate" to the Nationals' owner, an argument could be made that it is benefiting a private entity and the Kelo case would apply.

The stadium is likely to be funded through public funds, thereby making it no different than a school (a traditionally permissible reason for use of eminent domain). It will be a public facility rented to a private business. But therein lies the rub. If the rent terms are too favorable, the appearance that the sweetheart deal is nothing more than a partnership with the private company could remove the insulation the city would get from the public construction.

There is a good argument that sometimes allowing the taking would have the best affect on development and progress. For instance, in Silver Spring, MD, where I grew up, the city spent years trying to come up with a plan to redevelop the downtown area. The "Silver Triangle" project hoped to turn a burnt out downtown into a vibrant consumer mecca. Unfortunately, in the areas targeting for redevelopment some individuals did not want to leave and demolition never occurred. Now many years later, Silver Spring is showing life and the promise that had been envisioned in the mid-80's. I am not sure what broke the log jam, but I do know that much of what had been slated for destruction still stands, but has been renovated and greatly improved. There are ways around every problem, and government takings are not always the solution.

"The government wants to take my property and give it to another private developer, and I believe that that's not what America stands for," said Larry Hoffman, who owns some small offices there and manages about 50,000 square feet of retail shops for landlords at Skyland. "I don't have a problem if the government wants to take my property and build a highway for the public good. . . . But to simply give it to somebody else to make money, why is he any better than I am?"

This is all theory for now as we wait for the final opinion. I'm pulling for the plaintiff, but apparently she didn't do so well on oral arguments.


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