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Sunday, November 06, 2005

Beware the Eminent Domain "Last Resort" Defense

[Be sure to check out the “New Brighton Needs Doffing and Bauman at City Hall” post below.]

In Sunday’s (11/6/2005) edition of the Pioneer Press, Maricella Miranda reports on the redevelopment efforts in Rosemount (available here).

For many years, the city’s Port Authority has been buying land in an area known as Core Block East, along South Robert Trail. In addition, the private developer, Contractor Property Developers Company (from Roseville), has been buying land directly from the property owners.

But, there are many who do not want to sell.

What is most interesting is that the city has entered into an agreement with the developer to “consider” using Eminent Domain to acquire the remaining property once all other options have been exhausted. The mayor, Bill Droste, says Eminent Domain will be considered, but only as a “last resort.”

While the “last resort” language may be intended to smooth over fears, it does not allow for the land owner to keep his land. It means that if the land owner and the private developer cannot come to terms, then Eminent Domain will be used to force the issue.

When the mayor of Rosemount tells a hold-out landowner that Eminent Domain will only be used as a ”last resort”, he is really saying “YOU WILL LOSE YOUR LAND – ONE WAY OR ANOTHER.”

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2 Comments:

Blogger cosmosis said...

G-Man, This seems to be an issue on which we agree. The June 23, 2005 Supreme Court decision, Kelo v. City of New London, Conn. (125 S.Ct. 2655) is an interesting case even though I strongly disagree with its holding. (5-4 decision, O'Connor, Rhenquist, Scalia, and Thomas dissenting). But it should not have been a surprise to anyone. Berman v. Parker, 348 U.S. 26 (1954) had already held that taking private land for redevelopment met the "public use" requirement of the Fifth Amendment by satisfying a "public purpose". (Berman is cited in Kelo.) According to Berman, it's up to the states how to attain the public purpose. I think the Berman decision is flawed. It does a little switcharoo substituting "public purpose" for the Constitution's "public use" requirement.
Also, Berman considered a redevelopment plan for the District of Columbia. The redevelopment plan was created by the US Congress, as primary legislators for the District. The Berman court gave too much deference to Congress' determination that "the Nation's Capital should be beautiful as well as sanitary..." (p.33). Berman held that a simple condemnation would not be enough to accomplish the "public purpose" of removing slums from DC. Anyway, I just wanted to applaud your efforts. Since it is a "state thing" now, let's also work to get a state law passed to protect our private homes and businesses. I don't want to be alarmist, but after Kelo, it seems that all private property is in jeopardy - not just urban slums.

11/07/2005 7:50 AM  
Blogger G-man said...

Cosmosis, thanks for the valued background. The next phase is indeed a state law to narrow the definition of “public use”. Such a bill is expected in Minnesota when the next session convenes. State Rep. Jeff Johnson – also a candidate for Attorney General – seems to be leading the effort.

11/07/2005 6:37 PM  

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