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Tuesday, January 23, 2007

Eminent Piece of Domain

The Background
Last year, the U.S. Supreme Court ruled that the government can take private property if more tax revenue can be derived from that property when put to commercial or other use.

The case was Kelo vs. City of New London. Mrs. Suzette Kelo and her neighbors in the town of New London Connecticut had rebuilt – with their own money – an entire neighborhood transforming what was in essence a ghetto into a quaint middle class community.

So along comes the city and decides to condemn the property – not to build a school or a hospital or a highway – but to build a parking lot for Pfizer. Yes, that Pfizer – the pharmaceutical with 2005 revenues of $49 billion. The city argued that eminent domain applies since the tax revenues that would be derived from the implicit benefit of the parking lot would be greater to the city than if Mrs. Kelo and her middle class neighbors continued to pay their property taxes.


As a result of the decision, the vast majority of Americans were outraged. Even our close democratic allies expressed disbelief and rightly so since private property rights are fundamental to a free and prosperous society. Clearly, the intellectual corruption that infests the American judicial process reached new lows.

So the citizens sprung into action. States all across America enacted or are in the process of enacting state laws protecting private property in the way our constitution is written, and in the way our founding fathers expressly constructed.

And Florida took action. On May 11, 2006 Governor Bush signed an eminent domain law that he described as “… Florida now has the toughest protections for private property rights in the country” and “… [to] end the abuse of eminent domain and provide greater protection for the rights of private property owners”.

The History
The matter of eminent domain is so important to the makings of our democracy that all of the authors of the constitution demanded it. Some even argued for the extreme.

James Madison would only go along with the power of eminent domain as long as it was used expressly for the public good AND where the owner received just compensation. Our favorite revolutionary Thomas Jefferson went further. He insisted that the principle of owning property is the absolute right to keep it for oneself – even from the government. Jefferson lost the argument but the point is well taken: this issue of taking someone’s private property is a very serious matter.

And hence the 5th Amendment to the U.S. Constitution:
No person shall be… deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In no interpretation, not even in today’s Byzantine judicial morass, is the definition of private property anything other than what it clearly states – property is anything tangible. From one of the many legal dictionaries property is defined thus:

Not only money and other tangible things of value, but also includes any intangible right considered as a source or element of income or wealth. The right and interest which a man has in lands and chattels to the exclusion of others. It is the right to enjoy and to dispose of certain things in the most absolute manner as he pleases.

What is the Relevance to Marco Island?
Well, let’s see. Even the above noted abhorrent decision allowed the taking of property BUT ONLY WITH JUST COMPENSATION. Hence the courts have affirmed, and will continue to affirm, that private property can not be taken without just compensation to its owner.

If the government can take a citizen’s private property only with just compensation, why is it that the City of Marco Island is taking property – as in septic tanks – without just compensation?


  • Rots a ruck! The way I see it, the City is not "taking" your septic tank, it simply is forcing you to hook up to their septic tank ... one that, unfortunately, is some distance away, costs 20 grand or so to get to, and dribbles your (ahem!) "contributions" along the way through leaky pipes and failing lift stations. Ancient state legislation permits the City to do this as a matter of "public health" although the Federal EPA has long since considered it unnecessary (and frankly stupid) unless there is clear evidence that the public health and/or the environment is being endangered by onsite (septic) wastewater treatment. That's certainly not the case on Marco as the City's own test data indicate!

    Since I don't see this as a matter of "eminent domain," I don't think an argument based on that will fly. In my opinion, pursuing that course simply wastes what time, money and political capital opponents of the STRP have left. I suggest that anyone who wishes to attack the STRP should go back to my original premise and show that the STRP IS NOT JUSTIFIED AS A MATTER OF PUBLIC HEALTH and is, in fact, DANGEROUS to the public health. The facts support this argument and only by winning this argument will the STRP be killed for good. Everything else is a delaying tactic at best. The most one can hope for is a more equitable distribution of costs which is certainly valuable but does not kill the project.

    I'm probably in the minority with my opinion because, as a friend properly pointed out to me the other day, under my leadership, CARES failed to convince the People and Masters of Marco that I was correct. I apologize for taking peoples money and failing but I contend that my original argument remains correct and needs to be followed. Because I failed to carry the day doesn't mean that someone else can't.

    Many have chosen to oppose the project on the basis of money. Undoubtedly it was always a matter of money to many and will remain so. However, I contend that you will NEVER be able to kill this project on the basis of its cost, fairness or even presumed corruption. You can halt it temporarily, you can make it more equitable, you can possibly lower the cost, but you can't kill it. To kill it, we need to convince 4 councilors that it is not necessary, is potentially dangerous, and should be canceled. Delaying the project may give us the opportunity to place reasonable thinking people on the council ... but that's its main benefit. If you leave the high ground and abandon the only valid reason for killing the STRP, I'm afraid you won't even be able to get a thinking council in place who will do it.

    By Anonymous ed, at Wednesday, January 24, 2007 6:19:00 PM  

  • with great respect to all of us that have tried with myriad attempts, to date the net results is that the strp is going forward.

    taking of one's property is the same as denying the use of one's property irrespective of reason or purpose. all cases to date validate this point.

    so, given the above facts, the suggestion was and is to consider doing something that has not been tried but that has worked for others in all cases.

    the problem that i see with pursuing the eminent domain suggestion is that it involves the legal system - which as you know has worse odds than vegas regardless of the law.

    an aside - there is no high ground unless you want to prevail like we did in vietnam and how we are prevailing in irag.

    By Anonymous mario, at Wednesday, January 24, 2007 6:48:00 PM  

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