Tuesday, June 28, 2005

Developer Requests Eminent Domain "Help"

Earlier today I posted about a Texas city that was chomping at the bit for the KELO decision. Now I have the privilege of posting a piece, linked here, about a private business that has asked the town of Weare, New Hampshire to "take" Justice David H. Souter's property so they can build the Lost Liberty Hotel. Is this a crude joke? I'm not sure but I do know that I’m still laughing!

Obviously, this request was initiated by a person with a serious point to make about the injustices of government. Is Logan Darrow Clements (the request filer) really serious about building a hotel? I don’t think it matters because the point is made. The KELO decision has the effect of removing any and all constitutional protection for the "taking" of property for a public purpose. While there is the opportunity for state and local governments to step up and protect those rights themselves, the Constitutional protection has been removed. Winning will make that point in excellent fashion. But even if he loses in his bid to build a hotel, he has still shown local government has much to be desired. If I may, here’s a little analysis to make my point.

Let’s assume that Mr. Logan Darrow Clements has the fortitude to move forward with his request. Let’s also assume that New Hampshire law allows for an economic justification in an eminent domain case. Given these two prerequisites, there are really only two outcomes to this story. The Weare Town Council either grants or denies his request.

The first scenario, where the Weare, New Hampshire Town Council grants Mr. Clements request, is especially sweet. The town would then proceed to “take” Justice Souters property, pay him an agreed upon price and turn the property over to Mr. Clements who would raze the Justice’s home and build the Lost Liberty Hotel. Then, I believe, Justice Souter will be keenly aware of how the KELO decision affects private property rights. He will understand how a tyrannical government now has carte blanche to do as it pleases and it can do it in the name of the loftiest of human goals; economic gain.

The second scenario is just as poignant. Suppose the Town Council denies the request. This means that the elected officials in this town did not support his request. The key word here is “support” because the fiscal reasons to grant his request are there. The Council may find technical reasons to deny the request. It may not meet the requirements of the Comprehensive Plan. The traffic may be too great. There may be wetlands on the property. Trust me, I have heard them all. But these types of justifications are always chosen to bolster the argument to deny an application because the elected officials didn’t WANT the project. IF they wanted Mr. Clements hotel and the tax revenue it would bring, the council would find a way to make it happen.

It is in the second scenario the insidious power of government is shown. One of the major charges of an elected official is to ensure the economic health of the jurisdiction. Great effort is expended by jurisdictions everywhere to attract and keep tax paying businesses. The Supreme Court has now given local governments the power to do absolutely anything in the name of the fiscal health of the community. Denying Mr. Clements application will mean either Weare, New Hampshire is in great fiscal shape and doesn’t need the added income or, for some other political reason, the Town Council didn’t like Mr. Clements. I sincerely doubt that it’s the former.

So Mr. Clements has crafted himself a win-win situation. If he can just see the project through until he gets a public hearing he has met the goal. If the town approves his project, it shows how the private property rights of citizens need protected from government via the Constitution. If the town denies the project, it shows how local elected officials really have tremendous power to approve or deny development requests on a whim. Either way, it’s a black eye for government!

(hat tip Rush Limbaugh)