University of Chicago Law Professor Richard Epstein and I have coauthored an op ed in the National Law Journal urging the Supreme Court to review the important eminent domain case of Didden v. Village of Port Chester. Here's an excerpt:
The U.S. Supreme Court's 2005 decision in Kelo v. City of New London generated a backlash on both sides of the political spectrum..... Many of the rear-guard defenders of this ill-conceived decision insisted that abusive condemnations are an aberration in an otherwise sound planning process. They, it turns out, were wrong. Didden v. Village of Port Chester, a most unfortunate decision out of the 2d U.S. Circuit Court of Appeals, helps demonstrate the shortcomings of their optimistic view.
In 1999, the village of Port Chester, N.Y., established a "redevelopment area" and gave its designated developer, Gregg Wasser, a virtual blank check to condemn property within it. In 2003, property owners Bart Didden and Dominick Bologna approached Wasser for permission to build a CVS pharmacy on land they own inside the zone. His response: Either pay me $800,000 or give me a 50% partnership interest in the CVS project. Wasser threatened to have the local government condemn the land if his demands weren't met. When the owners refused to oblige, their property was condemned the next day.
Didden and Bologna challenged the condemnation in federal court, on the grounds that it was not for a "public use," as the Fifth Amendment requires. Their view, quite simply, was that out-and-out extortion does not qualify as a public use. Nonetheless, the 2d Circuit . . . upheld this flexing of political muscle. At present, Didden and Bologna are working against the odds to persuade the U.S. Supreme Court to hear the case. If the 2d Circuit's reasoning prevails, private developers everywhere could follow Wasser's example to extort money from property owners in thousands of development zones, which while created for noble purposes, can easily be turned to ugly ones.
I previously blogged about the Didden case here. Along with several other eminent domain experts, Richard Epstein and I coauthored an amicus brief urging the Supreme Court to review Didden. The brief can be accessed here.
CONFLICT OF INTEREST WATCH: As I noted in the initial post, I once briefly worked as a summer law clerk for the Institute for Justice, the public interest law firm representing the property owners in this case.