Homestead mailing list

[Clansgian AT wmconnect.com]

In a message dated 7/4/2005 1:19:45 PM Eastern Standard Time, 
genegerue AT ruralize.com writes:


> The Kelo decision is a refinement of Berman v. Parker, 1954, a case 
> involving DC slum improvement, so the current concept of public use is at 
> least that old. Key words in that decision include: " . . . to eliminate 
> and prevent slum and substandard housing conditions . . . even though such 
> property may later be sold or leased to other private interests subject to 
> conditions designed to accomplish these purposes."
> 

O'Connor opined that Kelo was a reversal, or at least the setting aside of, 
Berman v Parker.  In that case it was established that the are under 
condemnation was a harm to the public.  Commenting on Berman O'Connor says:



" This case returns us for the first time in over 20 years to the hard 
question of when a purportedly “public purpose” taking meets the public use 
requirement. It presents an issue of first impression: Are economic 
development 
takings constitutional? I would hold that they are not. We are guided by two 
precedents about the taking of real property by eminent domain. In Berman, we 
upheld 
takings within a blighted neighborhood of Washington, D. C. ...... Congress 
had determined that the neighborhood had become “injurious to the public 
health, safety, morals, and welfare” and that it was necessary to 
“eliminat[e] all 
such injurious conditions by employing all means necessary and appropriate 
for 
the purpose,” including eminent domain.

......

   The Court’s holdings in Berman and Midkiff were true to the principle 
underlying the Public Use Clause. In both those cases, the extraordinary, 
precondemnation use of the targeted property inflicted affirmative harm on 
society–in 
Berman through blight resulting from extreme poverty "

In the Berman case those wishing to employ eninent domain had to establish is 
was for the public good because there was an actual harm on society that they 
were eliminating, and once they eliminated that harm, something had to be 
done with the property so it was sold for private use.  The difference, as 
O'Connor points out is that in New London there is no pretense to eliminating 
a harm 
to the public, it is purely a taking of property from poorer people and 
giving it to richer people because the sovereignty can make more money on it. 
 It 
set aside the principle behind Berman rather than refine it.

> Kelo will not be the last decision we see defining public use. I expect we 
> will first see greater attention to just compensation.
> 

That is right, it won't be the last.  In time it is possible that Kelo will 
effectively reversed.  Another possibility is that in most municipalities 
when 
just compensation is being disputed, the property owner can insist that it be 
set by jury.  Jury activism might catch on and what the developer is trying 
to 
steal for $100K the jury might set at $10M.  I'd love to be on one of those 
juries.

James