Thursday, November 19, 2009

Standard-Examiner: City OKs the Use of Eminent Domain

At this point the obvious unanswered question is "Why now?"

By Dan Schroeder

Today's Standard-Examiner article answers the question that I posed yesterday afternoon:
City OKs use of eminent domain / Land to be used for Ogden River Redevelopment Project Area
Eminent domain has been approved for three properties in the River Project area. None of these three properties are adjacent to the river itself, so this purely an "economic development" issue, having nothing to do with restoration of the river.

At this point the obvious unanswered question is "Why now?". Is a developer ready to start building in this area as soon as these properties are acquired? If so, who is it and what will be built? Also, what assurance do we have that the development will actually occur?

Editor's Addendum: Here's an interesting sidebar. This morning's Std-Ex story alludes to the infamous Kelo decision, wherein "the U.S. Supreme Court ruled by a 5-4 vote in 2005 that cities can use eminent domain to claim property for economic development."

Just to add perspective to the matter, we'll link a short article from the Castle Coalition, reporting on the current status of Pfizer, Inc.'s New London, CT research facility, the same economic development project which destroyed one New London residential neighborhood and prompted the litigation leading to the Kelo ruling.

But first, an eye opening article lede excerpt:
Arlington, Va.—Pfizer, Inc., announced today that the company will be closing its former research and development headquarters in New London, Conn. This was a project that involved massive corporate welfare and led to the abuse of eminent domain that ultimately bulldozed the home of Susette Kelo and her neighbors in the landmark U.S. Supreme Court case Kelo v. City of New London.
This was the same bogus development plan that five justices of the U.S. Supreme Court refused to question when the property owners of New London pleaded to have their homes spared from the wrecking ball. Justices mentioned that there was a plan in place, and that so long as lawmakers who are looking to use eminent domain for someone’s private gain had a plan, the courts would wash their hands. Now, more than four years after the redevelopment scheme passed constitutional muster—allowing government to take land from one private owner only to hand that land over to another private party who happens to have more political influence—the plant that had been the magnet for the development is closing its doors and the very land where Susette Kelo’s home once stood remains barren to all but feral cats, seagulls and weeds.
Sounds disturbingly familiar, dunnit?

Read the full Castle Coalition article here:
The End of an Eminent Domain Error: Pfizer Closes in New London
Land Taken in Infamous Kelo Supreme Court Case Remains Empty More Than Four Years After Ruling
Are the lumpencitizens of Emerald City unnecessarily about to learn some hard lessons from the oppressed citizens of New London, CT?

We believe Dan S. Got it exactly right. Gotta say we're still scratching our heads wondering how it was possible for council members Garcia, Gochnour and Stephens to have been so easily lured aboard the eminent domain bandwagon at this particular point in time. Interestingly, the Kelo case turned on the question of whether the particular developer "had a plan in place," which logically induces the question: Does Boss Godfrey actually have a viable River Project plan in place? If so, we'd sure like to see it.

So what say our gentle readers about all this?


disgusted said...

city council has opened pandoras box with this authorization of eminent domain. it has also set a president for other confiscation of other properties in the area. why cant individuals that have long held the view that the property would one day have value and invested their own money to ensure an ability to participate in that upside not be allowed to reap their reward. where is it written that the area has to be developed by only one developer. this landowners could and should have been allowed to participate. in effect the city council has actually slowed the development of the area rather than expedited the development because now it wont take place until the single source developer has all their ducks in a row to start development rather than it coming together in smaller bite sized pieces. this is a bad decision by all involved in the decision on the city council and a crime perpetrated on the land owners.

the stepping stone president will make it that much easier for the next taking. once again the city council has sold the city residents down the river for none other than a fom. wake up.

Jennifer Neil said...

one of the properties (1923 Grant) is surrounded by the ever evasive Lesham-connected Riverfront Development partnership, and is delinquent in taxes ($3,757.63, as of 2008 tax yr) AND enforcement fines & fees to the tune of $9,917.60... is owned by Remington Commercial Properties LLC, listed at a Sandy, UT address. It is also only a couple parcels away from the river, if you look at the plat map


p.s. I also found a Remington Commercial Properties LLC in Oklahoma - will look into this ...

Ogdenite said...

It's a little more subtle that this.

While I agree with Jeske and Wicks for their principled decision, note the parcels in question are small "hold outs" in a larger project. So do you allow the hold outs to hold the entire project "hostage"? (Setting aside the fact that there presently is no actual plan or project.)

I can see this being a difficult decision.

What needs to happen now, is the whole area should be sold off, all or in part, to the highest bidder.

Get the incompetent city government out of the real estate business altogether.

disgusted said...

if these property owners want to participate then a developer of the rest or ajoining property can build arounr these property owners. anything these holdout property owners do with their property would have to conform with the new planning department requirements for that part of the city. wheres the harm.

Curmudgeon said...


Hmmmmm... one parcel, not owned by Lesham or whoever he is fronting for, has had code enforcement fines assessed against it? Of the sort not assessed against the Lesham-connected properties? Did I read that right in your post?

If so, proves again that [now] old Ogden adage: "It's good to be a friend of Matt."

Curmudgeon said...


You ask: "So do you allow the hold outs to hold the entire project "hostage"? "

So long as the project involved is a private real estate development [and not a public project like building a school or a road or a reservoir], then the answer to your question is "yes." Private developers have no inherent right to have their projects completed, and certainly no such right that trumps a property owner's right to sell, or not sell, his property as he pleases. The city can properly take his property via eminent domain procedures for a public purpose. Enriching the people Mr. Lesham is fronting is not, however, a public purpose under any reasonable definition of that term.

It's the property owner's land. If he or she does not want to sell for the price offered by the developer of a private [not public] project, then the city should not force them to sell. This is an abuse of eminent domain authority.

I think Mono is right, that Kelo was wrongly decided and it will not survive long as precedent. Nor should it.

Jennifer Neil said...

parcel search says right below property value: Direct Charges:
Type: 16; Description: City Weeds/Demolition; Amount: $9,917.60

weber cnty parcel search

wildcat said...

Curm, while you may be correct that Kelo will not survive long as precedent, it itself is well backed by precedent. The Supreme Court has in many cases pre-Kelo made that case that "public use" means public benefit and that when it comes to the question of what constitutes public benefit they leave that to the local legislative bodies. In the 1980s, for instance, the Court upheld a land re-distribution act in Hawaii that allowed leesees to gain ownership of the land they were leasing through the use of eminent domain in order to break-up a land oligopoly that existed in the state. in other words, the Court upheld a private owner to private owner transfer as consistent with the public use requirement. And that case was based on precedent from the 1950s. and on and on. So, while Kelo may have been a bad decision and may in fact be overturned in future cases, Kelo does not stand alone in Supreme Court "takings" jurisprudence. It actually follows precedent.

Stephen M. Cook said...

"...Kelo was wrongly decided and it will not survive long as precedent..." it

Judge Ted Stewart, our constitutional law professor, spent an hour in detail explaining this very point, curm. Eventually, this rulings applicability will be functionally so narrow as to render it moot.

Not infallible, just the best available, according to whomever the electorate awards the executive to.

Stephen M. Cook said...

wildcat: the Hawaii decision, although haing land as in assiue, was primarily to address a different issue regarding a prior corporate land seizure without warrant.

But it does show a creep in rulings against private property, which blows.

Note: supreme court rulings are never overturned.

Curmudgeon said...


Kelo, as I recall, was decided 5-4, significantly weakening its value as precedent. And, of course, every case is different, and the devil [as always] is in the details. The Hawaii case, for example, is not a good match for Kelo since the public purpose the court found in the two cases were not the same. The disturbing thing [for me] about Kelo is the court's deciding that a potential increase in a city's tax base was a sufficient public purpose to justify eminent domain takings. By that standard, very nearly no one's property would be safe since a use for any property that would potentially increase the tax base could be imagined by a city or developer pitching a city. That's the element of Kelo I doubt will stand as precedent for long.

That the court will continue to wrestle with and revise its understanding of what constitutes a "public purpose" sufficient to trigger eminent domain takings I have no doubt. It's a vague standard, public purpose, and so will continue to be revisited by the court as new circumstances arise in new cases.

wildcat said...

SMC, the Hawaii case (Midkiff) was about a land oligopoly that existed on the islands for quite some time and the legislature's contention that the public would be better served by having land ownership spread out among more private owners.
Curm, you may be right that a future court will find that public benefit is not contained in higher property tax rates. My point was simply that the Court since the 1950s has deferred to legislative bodies as to what constitutes "public benefit." And in that respect, Kelo was consistent with prior rulings.

Monotreme said...

What puzzles me is the Luddites who complained of "judicial activism" during the previous Presidential administration never bothered to mention Kelo v. New London as an example of same.

Obamymous said...


Monotreme said...


Huge legal bills.

matt godfrey said...

obamynous & monotreme

who cares?


Controversial viewer said...

Are these parcels merely owner's holdouts, a move by them meant to extract more dollars than fair market value for the properties? How many CC meetings have been held where the vast majority of owners of properties in the River Project came to plead for this development to move forward in order to sell their property to the City? A sale in that neck of the woods would probably benefit not only the City but those property owners themselves.

However, I do not support people being forcibly evicted from their homes. The Kelo decision was an abarition, I agree, but maybe there's a difference here. When all but 3 area property owners have decided that the time and money was right and then moved forward, maybe these remaining 3 aren't being fair to those who have accepted their money and moved on, or to the project and the City that would prosper by it.

Also in the equation is the condemnation process, that, from my understanding, is fair and even weighted toward the property owner. An impartial appraiser will come aboard and ask for and receive input from the property owner as to the value. That is a mandatory right the property owner has, the right to influence the appraisal along with many factors that will aid the owner in the determination and reception of a fiar price for the property. Even a court intervention, if it comes to that, can come into play to ensure that the owner receives fair market value. The problem here, as I see it, is having to use eminent domain at all. But with the rest of the owners having successfully negotiated the sale of their property, why should these 3 be able to throw a wrench in the gears? It seems as if more than 90% of the owners have agreed with the City that the River Project is the right way to go.

Eminent domain runs against most of our grain, but it is out there, has always been (we may not like it, but this government trump card has always been held, coming, I believe, from the old English concept of Fee Simple ownership rights and sometimes used in, HOPEFULLY, the best interest of the people) and regretably, it occassionally has to be administered.

If memory serves correct, the River Project was on the drawing boards and being pursued long before the Kelo decision. At least its not an entire neighborhood area, such as was the case in the original WalMart plan. That one was a travesty. This one should move forward as the majority of those sold properties feel.

Curmudgeon said...


You ask: "But with the rest of the owners having successfully negotiated the sale of their property, why should these 3 be able to throw a wrench in the gears? It seems as if more than 90% of the owners have agreed with the City that the River Project is the right way to go."

The answer to your question is: "because it's their property, and they should not be forced to sell it to benefit another private owner if they don't want to." I'm hard put to understand why a majority vote of other property owners should determine whether I have to sell my property because the majority wants to sell theirs and is happy with the price offered them.

Eminent domain takings for a public purpose are, as you note, long and well established in both British and American law. What has changed, or rather expanded, is the definition of "public purpose." ED takings to build a road, a dam, a school, etc. are not controversial [at least not legally]. Using ED to take someone's property to benefit another private owner is quite another matter, particularly when the only "public purpose" that can be offered in justification is an increase in the municipal tax base.

CV said...

Curmudgeon, I appreciate your thoughtful response. I'm sure I'll be viciously gunned down by others, but so be it.

I agree with your rational, and hopefully my words above showed I'm no fan of eminent fact, it's just the opposite. Even though I believe our founding fathers used the old English Law of the Land as a model for us, I don't even want the government to take my property, or anyone else's, for "public use," let alone a commercial venture.

But that's not my premise (we could fill reams of paper discussing the e.d. philosophy, Kelo, etc.). Again, that's not my issue. My issue is: is it the money. Is it at all possible that these 3 owners are using their holdout RIGHT simply to leverage more dollars out of the City's pockets?

Possible, right?

Again, that's what I'm asking here, hopefully without appearing to support eminent domain.

disgusted said...


where this matter rubs me wrong is the assumption that these properties are needed for the whole riverfront project to go forward. not so. particularly where we don’t even have an eminent project.

based on the project design presented to the residents this is not just one large building per say that could not be built without the inclusion of these specific properties but rather multiple smaller structures that would be unaffected by the standout property owners who could have furthered their interest in participating in the upside by building on their own property.

these property owners are not impeding the progress of the project and should be entitled to be able to personally benefit from the development of that part of the city rather than having to pass that upside on to some fom. there are other property owners in the same project area that likewise want to benefit from their ownership in the area and as long as they are willing to participate and build to the planned concept for the area should be allowed to retain their property. this action is just the first of many similar steps in the taking of property in the false claim that it is for the benefit of the whole community to do this. if the city was developing this property itself which i am not recommending or would i condone as proper for the city to do it would at least more understandable but for the city to simple aggregate the property in the area and handing it over to a fom is immoral and i think could be proved to be illegal.

i think it would be advisable for all of the holdout property owners to band together and take this action by the city to court. i think that the fact that there is not an eminent project that is being held up only by the lack of their property being included. by their being exclude from being allowed to participate in a development that clearly involves several smaller structures rather than a single large structure that would require their property in order for the development of the area to happen and the fact that the city is not the developer but is simply handing the property over to another property owner. a property owner who has yet to be identified to the residents or who has been shown to have the financial capability to actually develop the area.

this is so wrong on so many levels. this might be the case that overthrows kelo.

CV said...

Disgusted....well said. Many aspects come into play here and, as you say, I doubt that the 3 subject properties are holding up the entire project. Earlier on, someone said to just build around them and that I have to take issue with. Here's a nice project, new, probably raising some money for the City and County, and here are 3eye sores right in its middle.

As I asked, I simply wonder if these 3 properties might be being used as leverage to rise the price well above market value?

Time will tell. And I hope that whoever the hell's in charge will get the ball rolling asap.

Anonymous said...

these guys can help you beat eminent domain.

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