Third anniversary of Kelo

"Today marks the third anniversary of one of the most outrageous decisions in the history of the U.S. Supreme Court. In Kelo v. City of New London, five black-robed despots ruled that New London, Connecticut, could seize the homes of Suzette Kelo and her neighbors and hand them over to big developers. The decision was a triumph for collectivism, government tyranny, and the capacity of the rich and well-connected to trample the rights of middle-American families."

More of this post from Leslie Carbone

Up is down in Toledo when it comes to eminent domain

Yes, up is down, black is white, and I find myself agreeing with Democrats on Toledo city council while wondering what's happened to the Republicans.

The issue? Eminent Domain for Southwyck Mall. (For complete background, read this, this and this.)

If you're not familiar with Toledo politicians - or even if you are - you might be surprised to learn who said the following:

"...eminent domain is a tool the City of Toledo can use to get Bill Dillard and Buddy Hering, who own parcels at Southwyck, to complete the deal with Larry Dillin, president of Dillin Corporation."- Toledo Free Press

or this:

“They [the owners of Southwyck] have a history of not cooperating and running Southwyck Mall into the ground. Those uncooperative owners are the reason we have to look at eminent domain. We can't let them hold us hostage.” - Toledo Free Press

or this:

"It really bothers me that we can't get a national company to be a responsible corporate citizen, and I think we need to take bold action." - Toledo Blade

Anyone familiar with the traditional stances of the two parties would probably guess these quotes came from the Democrats...but they didn't. The first quote is from Republican Rob Ludeman, District 2 representative. The other two quotes are from Republican George Sarantou, at-large member of council.

And the Democrats? They said this:

"Council President Michael Ashford questioned whether the administration has the legal justification for eminent domain, given recent rulings by the Ohio and U.S. Supreme Court on the use of eminent domain for economic development." - Toledo Blade

and this:

"Councilman Frank Szolosi said he has “a fundamental opposition to the city's use of eminent domain.”" - Toledo Free Press

Further, our Republicans are strangely silent about the revelation that the supposed 'public use' to justify eminent domain was never part of the plan for Southwyck - and, contrary to what the mayor said, was NOT requested by Larry Dillin, the proposed developer of the property. The city has decided a road right through the middle of the property is 'needed.' (Posts linked above show the planned road and the original - and still current - site plan presented by Dillin.)

According to this Blade article, "Mr. Finkbeiner said the road fits with the Village at Southwyck concept proposed by developer Larry Dillin.

“[Mr. Dillin] feels that it’s very important that that mall be broken up, that there be a connecting road running north and south, to link the beltway road,” the mayor said, referring to Southwyck Boulevard."

But this is directly contradicted by the developer, according to the Free Press article:

"“We feel very strongly about our plans to rejuvenate the Southwyck property and want to move forward with them,” said Bill Thomas, director of real estate services for Dillin Corp.
...
Thomas said the Dillin firm had nothing to do with the city's latest plans for a connecting road through the Southwyck property. If the city has plans that show a connecting road, “We were not involved in them,” he said."

So the mayor lied about the need for a road, the Republicans are supporting eminent domain because they don't like what a property owner is doing - legally - with their private property, and the Democrats are the ones asking questions about the legality and the costs.

Truly, up is down in Toledo.



BONUS ISSUE: The comment by Sarantou about being a "responsible corporate citizen," ties in with this quote, also from the Blade article:

"Dave Lemon, the volunteer leader of a citizens' organization in the Southwyck area, said Mr. Dillard shows no corporate responsibility for the area surrounding the mall, and is "stubbornly refusing" to sell a mall that he is neglecting."

Perhaps we're getting to the underlying message here? That you're only welcome in our community if your use of your private property corresponds to our determination of being 'socially responsible.' But that's another post for another time...

Hypocrisy in Toledo

According to this Blade article, our mayor, Carty Finkbeiner, is dead-set to exercise the authority of government to take private property (Southwyck Mall) because he does not like what the owners are doing - or rather, not doing - with the property. (Background on the issue is here and here.)

Of course, the reason for taking the property is a newly-discovered need for a road to go directly through the property, thus making the 'taking' necessary to meet a 'public use.'

The hypocrisy is overflowing, especially in this statement from the article:

"Mr. Finkbeiner said the road fits with the Village at Southwyck concept proposed by developer Larry Dillin.

“[Mr. Dillin] feels that it’s very important that that mall be broken up, that there be a connecting road running north and south, to link the beltway road,” the mayor said, referring to Southwyck Boulevard."

Unfortunately for the mayor, the site plan shown below (readily available here at the time of this posting), shows NO ROAD through the middle of this property.


(This image is shown with north on the right, and the beltway road surrounding the property running from the left - south - side to the right - north side. Reynolds road accesses on the bottom of the image.)

Of course, I'll admit it is possible that Larry Dillin has changed his site design, but I'd find that to be highly convenient to the city, considering that this site plan is the one he's been showing everyone since 2003.

And then we have the comment from our Republican representative of that district, Rob Ludeman, who says:

"“This is to move Mr. Dillard and Mr. Herring off dead-center. This is the step we need to take to bring [Southwyck revitalization] to fruition. It is blight, and it has had a residual effect on all the surrounding area, residential and commercial,” Mr. Ludeman said."

...admitting that the true purpose is not because they need a road, but because they want to redevelop the property and the property owner isn't interested in doing what they want.

And then Ludeman mentions that dreaded term - blight. However, Mr. Ludeman might want to read last year's Ohio Supreme Court ruling in Norwood v. Hormey which said that communities should not be targeting buildings in good condition and whose owners were not property-tax delinquent and declaring them blight. The Supreme Court also said that communities cannot claim 'deterioration' of a property as a reason for a taking.

From the summary of the case:

"The use of the term “deteriorating area” as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking.

Courts must apply heightened scrutiny when reviewing statutes that regulate the use of eminent domain powers."

It's the last sentence which is going to come back to haunt Toledo politicians. Any heightened scrutiny of this eminent domain action will show that they never intended for a road to be built through the middle of this property, that they've been frustrated by the owners' lack of interest in selling or redeveloping the property, and that they've come up with a thinly-veiled excuse of a sudden 'public use' in order to justify their actions.

And the cost to the public for this will be enormous, considering the projected budget deficit for 2008 and the fact that we have a half-built bridge in the downtown which has no source of funding for completion of the work.

Further, the intangible costs associated with this idea are immeasurable. The anti-business message alone could be the final nail in the coffin for many. And the precedent this would set for residential property owners is scary. After all, if they can do this with a mall, what's to prevent them from deciding any neighborhood is ripe for re-development and, when you don't want to sell, they just decide to build a new road and then take your home via eminent domain?

There's a public hearing on this scheduled for Monday, Sept. 24, 2007, at 4 p.m. in city council chambers. Newly-elected president of council, Michael Ashford, indicates that council would like to see plans for the road - and an explanation as to why this recently-discovered 'need' for a road through the middle of the property is more of a priority than other roads in the area.

You need to show up to this hearing and tell city council that such takings are, in the mayor's favorite words, "just not right."

Southwyck Mall and Eminent Domain

Tonight, during my guest hosting stint for Eye on Toledo on NewsTalk 1370 WSPD, we discussed the pending Toledo city council resolution to begin eminent domain procedures against the two owners of the Southwyck Mall property.

During the discussion, I mentioned that the city's new plan for a road going through the middle of the property is their new, and thinly-veiled, "public use" excuse for a reason to exercise eminent domain. Further, I said that the plans shown to the public, so far, by Larry Dillin (who the city has picked to redevelop the property) don't show any such road.

The best photo of the planned road is available in this WTOL 11 story from August 30th: City Council Discusses Major Changes at Southwyck.

To see the drawings Larry Dillin has presented for his idea of how a re-developed Southwyck property would look, you can go to this link and view the site plan. (This is a large pdf file that may take a moment to download.) Other views of his plan are also available at his website, www.villageatsouthwyck.com

If you'd like to weigh in on the issue of eminent domain actions against the Southwyck property owners, Toledo City Council will have it on the agenda for their Environment, Utilities & Public Service Committee meeting on Monday, September 24th at 4 p.m. They'll also discuss the appropriation of $2.7 million from the Capital Improvements Budget for infrastructure improvements in and around Southwyck. This would be the time to make your opinions known!

Eminent Domain?

From The Patriot Post:

Founders' Quote Daily

"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If `Thou shalt not covet' and `Thou shalt not steal' were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free."

-- John Adams (A Defense of the American Constitutions, 1787)

I thought this quote particularly timely in light of Toledo Mayor Carty Finkbeiner's comments in this Blade article.

For years, politicians have been promising to do something about the failing Southwyck Mall - despite the fact that the owners of the mall have expressed little or no interest in doing so. Upon Finkbeiner's election, he brought in local developer Larry Dillin and, together, they've made numerous announcements about renovations, redevelopment, etc. However, neither the city nor Dillin have any ownership in the property.

"Plans to redevelop the aging Southwyck mall as a mixed-use Village at Southwyck have been stuck in park with the refusal of mall part-owner Bill Dillard to either sell his share or join a redevelopment effort with Perrysburg real-estate developer Larry Dillin.

Mr. Finkbeiner said the possibility of using the city's eminent domain power to take control of the mall has not been ruled out. He said he intends to give the current owners 30 days to consider Mr. Dillin's proposal before taking any action."

I realize that the U.S. Supreme Court has said that a community may take private property from one owner and transfer it to another private owner if the benefit to the community is greater. However the Ohio Supreme Court, in a 2006 unanimous decision, ruled:

"Although economic factors may be considered in determining whether private property may be appropriated, the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not justify the taking of the property under a provision of the Ohio Constitution that requires eminent domain be for “public-use” (Section 19, Article I)."

The area doesn't currently qualify as blighted. And if the city wants to say that the area is 'deteriorating' in order to justify the taking, the Supreme Court weighed in with this:

"The use of the term “deteriorating area” as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking."

Carty's used to ignoring the laws (see story on 'Prior Restraint?') but this time he's not dealing with a bunch of college students. He's dealing with a national corporation with the resources to defend what is rightfully theirs and not be intimidated by the political posturing of a local city mayor.

Aside from the terrible message this action sends to business owners in Toledo (if we don't like what you're doing with your company, we'll turn it over to someone who we think has a 'better' idea), I don't believe that Carty can legally force the owners to kowtow to his wishes. And what happens if and when the Southwyck Mall owners say 'no thanks' to Dillin's offer? Will Carty, ever the one to fight defiance of his ideas, invest city resources to take them to court?

Because of the shaky legal footing regarding eminent domain, setting a 30-day deadline to 'finish negotiations' places Carty and the city in the wrong position. However, this appears to be what we've come to expect from our mayor.