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Tuesday, August 06, 2002


UPDATE: Los Angeles Times gets it right.

Give credit to the L.A. Times for an excellent news report on the anti-condemnation injunction. Here are some key excerpts from the story [link requires free registration]:

In a stinging 36-page opinion, a federal judge Tuesday ordered a temporary halt to the city of Cypress' plan to condemn church property in order to make way for a tax-generating Costco.

"The framers of the Constitution ... might be surprised to learn that the power of eminent domain was being used to turn the property over to a private discount retail corporation," U.S. District Court Judge David O. Carter wrote.


"At first blush, the city's concern about blighting rings hollow," Carter said, asking why the city didn't clean up the property for more than a decade if this was the case. "Although some innocent explanations are feasible--such as new leadership or robust economic growth--the activity suggests that the city was simply trying to keep Cottonwood out of the city, or at least from the use of its own land."

He also called the city's revenue concerns "even more suspect than the concerns of blight," adding that Cypress has a 25% budget surplus.

Carter's ruling pleased advocates of religious freedom, especially for his citing of a religious land use act passed by Congress in 2000 to criticize the city's decision to seize the land. Also heartened were constitutional conservatives who believe local government has become too bold in taking private property to boost revenue.

* * * * *

Chalk up a victory for private property and religious freedom.

A judge has just issued an injunction preventing the City of Cypress from stealing "condemning" some land belonging to the Cottonwood congregation. Cottonwood wanted to build a new church, but the city council didn't want to waste precious real estate on a non-sales-tax-generating usage. Instead the city tried to seize the property through eminent domain and turn it over to Costco.

Technically this is just an injunction, and nothing final will be decided until a trial is held. But a quick reading of U.S. District Judge David O. Carter's detailed ruling indicates that Cottonwood is very likely to prevail at that trial. The judge applied "strict scrutiny" standards; questioned the city's finding of "blight" (plus the fact that constructing a church would eliminate any blight just as effectively as Costco); acknowledged that the new federal RLUIPA law properly addressed the situation; and questioned whether the forced transfer of the church's private property to a discount retail establishment constituted a legitimate "public use".

The Fifth Amendment "taking" clause is a dangerous and easily-abused power of government. When billionaires like Ted Turner can use eminent domain to grab land to augment their financial empires, and giant corporations like Costco can manipulate local governments to seize land they aren't able to buy (at a price that's mutually satisfactory to the buyer and seller), then there's no question such abuse is happening.

It good to see the judicial system finally stepping up to stop such condemnations stealing.

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