Offering constructive criticism to the social cripples in our midst since early 2005.

[Greedy,Greedy,Greedy]

Originally posted by Spanky
I don't understand this obsession with the takings clause. As long as people get just compensation what is the big deal. If you don't think you are being paid enough for your property then I can see the complaint. But if the government seizes your land, take the money and buy some other land. It is when the government effects land and doesn't provide compensation then I have a problem. Like when the government declares your property a "Wet land" and won't let you build on it. You should be compensated for that because they have reduced the value of the land. The government can take my house anytime, as long as they pay the FMV. Just don't decide when a duck lands in a puddle on my property that I have to tear down my house.

First, Land is unique; there is no other parcel quite like my little plot of heaven.

Thought of another way, will a tort recovery fully compensate a person for loss of an arm? Most of us would rather have the arm, and some of us get a little attached to that farm that's been in the family for three generations, and that Grandpa Henry did give his right arm for (tractor accident). And the fact that Wanna-be City decided to take it so Mr. Greedy could build a factory shouldn't mean that I'm forced to sell.

Second, from a pure financial perspective, individuals and markets don't always value things the same way, and that's why some people get rich. If I bought the land because I liked the location and thought I'd see real appreciation if I coiuld hold for 10 years, but the government wants to buy after I've incurred my initial costs but not seen the jump in value, I'm not going to get compensated for that future value element. I don't like it if the Gov. can step in to all of our investments just when they're starting to look good.

On the other hand, regulation is what adds and subtracts value to real estate, and some sensible regulation doesn't bother me, as long as current uses are respected. I don't have to pay when the government puts mansion zoning on my little lot and the value goes up; I don't think a bit of protection for that swamp with the pretty duckies on it should get me a check.

G^3, rural left wing capitalist

[SlaveNoMore]

Tyrone Slothrop
This is kind of like the Schaivo case, in that I gather that some of the opposition to Kelo is based on the idea that it sweeps very broadly, whereas the trial court made a bunch of findings that narrow what the Supreme Court actually held. If you accept the findings, it's not as apocalyptic.

I think this is a very fair statement.

[Greedy,Greedy,Greedy]

Originally posted by Tyrone Slothrop
This is kind of like the Schaivo case, in that I gather that some of the opposition to Kelo is based on the idea that it sweeps very broadly, whereas the trial court made a bunch of findings that narrow what the Supreme Court actually held. If you accept the findings, it's not as apocalyptic.

Get your dirty mitts off my farm, or Grandpa Henry's one-armed ghost is going to haunt you.

[Greedy,Greedy,Greedy]

Originally posted by Tyrone Slothrop
Justice Kennedy would disagree:

• This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U.S. Const., Amdt. 5., as long as it is “rationally related to a conceivable public purpose.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241 (1984); see also Berman v. Parker, 348 U.S. 26 (1954). This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses, see, e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 313—314 (1993); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955). The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.
  
  A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446—447, 450 (1985); Department of Agriculture v. Moreno, 413 U.S. 528, 533—536 (1973). As the trial court in this case was correct to observe, “Where the purpose [of a taking] is economic development and that development is to be carried out by private parties or private parties will be benefited, the court must decide if the stated public purpose–economic advantage to a city sorely in need of it–is only incidental to the benefits that will be confined on private parties of a development plan.” 2 App. to Pet. for Cert. 263. See also ante, at 7.
  
  A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose. Here, the trial court conducted a careful and extensive inquiry into “whether, in fact, the development plan is of primary benefit to … the developer [i.e., Corcoran Jennison], and private businesses which may eventually locate in the plan area [e.g., Pfizer], and in that regard, only of incidental benefit to the city.” 2 App. to Pet. for Cert. 261. The trial court considered testimony from government officials and corporate officers; id., at 266—271; documentary evidence of communications between these parties, ibid.; respondents’ awareness of New London’s depressed economic condition and evidence corroborating the validity of this concern, id., at 272—273, 278—279; the substantial commitment of public funds by the State to the development project before most of the private beneficiaries were known, id., at 276; evidence that respondents reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand, id., at 273, 278; and the fact that the other private beneficiaries of the project are still unknown because the office space proposed to be built has not yet been rented, id., at 278.
  
  The trial court concluded, based on these findings, that benefiting Pfizer was not “the primary motivation or effect of this development plan”; instead, “the primary motivation for [respondents] was to take advantage of Pfizer’s presence.” Id., at 276. Likewise, the trial court concluded that “[t]here is nothing in the record to indicate that … [respondents] were motivated by a desire to aid [other] particular private entities.” Id., at 278. See also ante, at 7—8. Even the dissenting justices on the Connecticut Supreme Court agreed that respondents’ development plan was intended to revitalize the local economy, not to serve the interests of Pfizer, Corcoran Jennison, or any other private party. 268 Conn. 1, 159, 843 A. 2d 500, 595 (2004) (Zarella, J., concurring in part and dissenting in part). This case, then, survives the meaningful rational basis review that in my view is required under the Public Use Clause.
  
  Petitioners and their amici argue that any taking justified by the promotion of economic development must be treated by the courts as per se invalid, or at least presumptively invalid. Petitioners overstate the need for such a rule, however, by making the incorrect assumption that review under Berman and Midkiff imposes no meaningful judicial limits on the government’s power to condemn any property it likes. A broad per se rule or a strong presumption of invalidity, furthermore, would prohibit a large number of government takings that have the purpose and expected effect of conferring substantial benefits on the public at large and so do not offend the Public Use Clause.
  
  My agreement with the Court that a presumption of invalidity is not warranted for economic development takings in general, or for the particular takings at issue in this case, does not foreclose the possibility that a more stringent standard of review than that announced in Berman and Midkiff might be appropriate for a more narrowly drawn category of takings. There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause. Cf. Eastern Enterprises v. Apfel, 524 U.S. 498, 549—550 (1998) (Kennedy, J., concurring in judgment and dissenting in part) (heightened scrutiny for retroactive legislation under the Due Process Clause). This demanding level of scrutiny, however, is not required simply because the purpose of the taking is economic development.
  
  This is not the occasion for conjecture as to what sort of cases might justify a more demanding standard, but it is appropriate to underscore aspects of the instant case that convince me no departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimus. The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city’s purposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case.

Words, words, words.

Once you go to rational basis as a standard, a plaintiff has to just about show fraud to overcome the court's deference to the legislative and administrative branches.

[Greedy,Greedy,Greedy]

Originally posted by Mmmm, Burger (C.J.)

BTW, I seem to recall reading an article years back suggesting that most times when compensation is paid, the payment is well above 100% of FMV, mainly to deter lawsuits. So statutes providing for more than just compensation really won't solve the problem.

I'd be interested in the study. The takings I've seen have been undervalued, and I've heard town officials suggest that no matter what value they put on it, they'd be sued for more, so why not start as low as possible. Which means that you have to litigate a case to ultimately settle the matter for less than the full FMV (since it would cost even more to litigate to FMV).

What is needed is a penalty for undervaluing - if it's more than a 10% undervaluation, the town has to eat costs plus penalty.

[Replaced_Texan]

Originally posted by Greedy,Greedy,Greedy
I'd be interested in the study. The takings I've seen have been undervalued, and I've heard town officials suggest that no matter what value they put on it, they'd be sued for more, so why not start as low as possible. Which means that you have to litigate a case to ultimately settle the matter for less than the full FMV (since it would cost even more to litigate to FMV).

What is needed is a penalty for undervaluing - if it's more than a 10% undervaluation, the town has to eat costs plus penalty.

I think this is why I'm so wary about emminent domain in general. (spree: news article about homes torn down to build new school and oops, there's a civil war era cemetary there, and no one bothered to find out before condeming the property)

[Shape Shifter]

Originally posted by Tyrone Slothrop
If local governments are making bad decisions, the remedy is to elect better local governments, not to interpret the Constitution to prevent them from acting at all.

"State and Local Government. Learn how the broadest governmental powers in America have been reserved to a city counsel composed of two real estate developers, a retired earthworm inspector, and a proctologist."

http://www.willamette.edu/~sbiornst/...20Journal'

etfl rt

[ltl/fb]

Originally posted by Sidd Finch
I'm going to tell Paigow that you guys are pitching for a threesome.

I'd pay at least $2 for a video of that.

[Replaced_Texan]

Originally posted by ltl/fb
I'd pay at least $2 for a video of that.

the threesome or the telling of paigow?

[ltl/fb]

Originally posted by Replaced_Texan
the threesome or the telling of paigow?

The threesome. But I want the soundtrack removed.

[sebastian_dangerfield]

Originally posted by Penske_Account
I am looking to get into development and in fact just identified a home run project (projected 500K profit; in and out in 18 months and I only need a couple hundred k to finance the jump off).

Is a developer a lower form of life than a young right wing chickenhawk republican? If not, does my opportunity for the sex go up? Do developers drive Porsches?

Take a number. The line of lawyers I know who've blathered exactly that story past me in the past 24 months runs three city blocks.

If you're flipping, hey... go for it. Thats all market timing and speed of transaction. If you're building, strap in. Everybody involved in the process knows the money is cheap these days, and they're going to pad every cost imaginable and grab every goddamned nickel from you. Repping developers is what almost drove me to resign without even a new job. But I stuck with it for the good feeling of helping a developer fuck over the bank, his contractors, his tenants and everybody else who got near him. Real nice business. Everybody's bankruptcy and loan workout counsel is a red telephone line away. I wish you well. I hope you make a fortune. Anyone who can hack that business deserves everything he can get.

No, the Porsche doesn't handle well on building sites. Try the Benz 4Matics.

[Replaced_Texan]

Originally posted by sebastian_dangerfield

No, the Porsche doesn't handle well on building sites. Try the Benz 4Matics.

2. And the tires are really expensive when you run over the nails.

[Penske_Account]

Originally posted by sebastian_dangerfield
Take a number. The line of lawyers I know who've blathered exactly that story past me in the past 24 months runs three city blocks.

If you're flipping, hey... go for it. Thats all market timing and speed of transaction. If you're building, strap in. Everybody involved in the process knows the money is cheap these days, and they're going to pad every cost imaginable and grab every goddamned nickel from you. Repping developers is what almost drove me to resign without even a new job. But I stuck with it for the good feeling of helping a developer fuck over the bank, his contractors, his tenants and everybody else who got near him. Real nice business. Everybody's bankruptcy and loan workout counsel is a red telephone line away. I wish you well. I hope you make a fortune. Anyone who can hack that business deserves everything he can get.

No, the Porsche doesn't handle well on building sites. Try the Benz 4Matics.

good points all. I shall report back. I might flip, I might build. I might build one lot, sell, build the next. I look forward to fucking over the bank, the contractors, the tenants (actually it would be buyers) and everybody else who got near him.

either which way I have to do something. else. I can't do this for another 35 years. Plus as Slave knows, I still harbour bitterness about the bar deal I got fucked out of and need to clean the taste of cowpies out of my mouth.

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
Kelo reduces those protections in the case of property takings by saying that, essentially, majority rule is always fine.

No, it doesn't. First, Kennedy's concurrence makes pretty clear that majority rule is not always fine. Second, the public/private distinction doesn't have much to do with this majority rule idea.

[Tyrone Slothrop]

Originally posted by Greedy,Greedy,Greedy
Once you go to rational basis as a standard, a plaintiff has to just about show fraud to overcome the court's deference to the legislative and administrative branches.

Not so much. Kennedy has given litigants and courts something real to hang their hat on if they want to challenge a local government decision.