Fragments From Floyd

"How does your state define eminent domain?"

SC has a constitutional provision that will limit the effect of the US Supreme Court's Kelo decision: "Except as otherwise provided in this Constitution, private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor."

The meaning of the phrase "public use," which was at issue in Kelo, is defined narrowly here as a matter of state judicial interpretation of the state consitution.

This excerpt from a case explains the distinction that has been drawn:

"In [a prior case called] Karesh, the parking facility was to be made available on reasonable demand to all members of the general public with only 10% reserved for the proposed convention center. We found this public interest was not enough in the context of a condemnation proceeding because private property rights were being infringed. Our decision in Karesh turned on the fact that the parking garage and convention center, which were 'ostensibly public facilities,' were to be leased long-term to the developer and used as an adjunct to the developer's own business. The importance of this fact is apparent from our subsequent decision in Goldberg . . . which addressed a later challenge to the revised project involving the same parking garage. In Goldberg, we summarily found the project no longer suffered the same constitutional impediments found in Karesh and was valid because the city would now own and operate the parking garage." GEORGIA DEPARTMENT OF TRANSPORTATION v. JASPER COUNTY (2003).

You asked.

Yes, Trey, today that may be true in your state, but everything can change with the ideological bent of state and local government once our Federal Constitutional rights are diluted.

The denizens of Floyd Cty, for example, have reason to be concerned as development is fast encroaching on their remote corner of VA. Any property holder adjacent to an unban area, bedroom community or population corridor could find themselves on the short end of Kelo.

One's level of outrage/dismay over Kelo depends on the likelihood of one's property being assimulated by the government Borg.

Do you really trust your local Pols with your largest asset, your home? I wouldn't trust mine to walk my dog.

Truly, I was amazed, shocked, appalled that our Supreme Court could conclude as it did. Homeland Security is taking away our cerebral rights while the supreme court is taking away our land-holding rights. Unimaginable.

Cop Car: while we're whipping the Homeland Security dog, let us not fail to mention it was the LIBERAL side of the court that upheld against individual property rights.

IMHO-All three branches of our government are out of control because we can't make a firm, clear-cut decision at the ballot box. Government equally divided by party simply doesn't work. There are 20-30% of us straddling the ideological fence and unless we come down on one side or the other, soon, we are headed for meltdown.

BTW- Jay Tea of Whizbang fame has a very good post on Kelo with a funny but apt explanation of how Kelo will most likely work at the municipal level where the brunt of the impact will be felt.

http://wizbangblog.com/archives/006276.php

One also wonders how a fair price would be set in California where Prop 13 fixed property taxes at 70's levels until a home is sold, then it is taxed at the going rate. I have neighbors who pay 10% of what I do in property taxes and tax rolls determine value/price in imminent domain, not the real estate market...which has been a bone of contention for property owners in imminent domains lawsuits.

One more thing to consider, the proceeds from the "sale" of the property is cap gains and taxable at a high rate. In California one can could "roll" a fixed amount into another property tax free, but given our escalating real estate prices, 40% yearly in my area, the allowance lags far behind market values. The tax man would grab a large chunk of the proceeds.

It just gets better the more you think about it, doesn't it?

i can only add that, as a public land-use planner for the past 15 years, mostly in the south, mostly in predominantly rural areas that are being threatened by sprawl from neighboring metropolitan areas, my experience overwhelmingly says --

you don't really want to know what my experience overwhelmingly says. suffice it to say, it isn't very pretty.

http://www.freestarmedia.com/hotellostliberty2.html