Updated Parameters for Solving Kelo

Back on July first, I posted Solving Kelo - Seeking Parameters for a Solution.



As I wrote then:

When you're in my current profession, you can't help but learn that public condemnation of private property for private use has a long and not entirely dishonorable history in this country. Yes, it goes back to 19th centruy crony deals of the sort Tammany Hall was famous for, but it has also been used to condemn farmer's land for factories near cities where poor to middle class workers could get to them, clear blighted areas, and many other uses. It is sometimes necessary to avoid many times the cost, both to the beneficiaries and to society at large.



The clear and obvious problem with condemnation is that it is involuntary. Not much can be done about that. It's one of those "by definition" things. But we can keep it in mind. On the other hand, most development by its very nature also requires ownership of a complete footprint, and designing around one or a few who are unwilling to sell at any price is usually prohibitive. In other words, if 499 out of 500 people in an area are willing to sell and the 500th is not, the 500th is imposing his will on the other 499, and the entity that is in the minds of that 499 their benefactor, to no less degree than the landholders in Kelo were imposed upon. The way to keep involuntary nature foremost is to make certain that the victim of eminent domain can come out no worse by objective measure than when the process started, and should be handsomely compensated for the involuntary nature of the condemnation, instead of being paid fifty to seventy-five cents on the dollar

the bullet points version of the parameters:



-overcompensate victims out of beneficiaries pockets

-the proposed beneficiary liable for victim's legal costs

-victim must receive the clear price of a replacement

-victim deserves compensation for effort of defending

-moral issue - observer's should not feel sorry for victim

-difficulty of amendment versus relative ease of law.



Additionally, I've seen one further issue since then, namely that New London wants to compensate Kelo et al based upon property value at the completion of the initial suit, rather than at the termination of appeals, and charge them rent to boot. Somehow I doubt New London is offering to refund property taxes or mortgage expenses incurred during that time. Furthermore, with property values so much higher now than then, the defendants in Kelo clearly will not have resources to purchase a replacement, in violation of bullet point three above.



I had originally posted a proposed solution Fixing Kelo - a proposal.



I must now conclude this falls short in two areas. First, the owner - the victim of involuntary condemnation - is not explicitly compensated for their time.



Second, it does not explicitly disallow New London's tactics.



Therefore, I would like to amend my proposed solution to Kelo thus:



proposed new public law:



The Congress of the United States, wishing to discourage abuse of eminent domain, henceforth enacts into law:



1. In the event of public condemnation of private property, the public entity bringing suit shall pay all expenses of the defending party in said suit, including but not limited to legal expenses, and any expenses incurred in evaluation of the property or documentation of this value. This compensation shall be immediately due and payable upon presentation of reasonable proof, and it shall accrue interest at a rate not less than double the prevailing customary rate, or additional charges incurred by the property owner as a result of tardy payment, whichever is greater. This compensation shall be paid regardless of the said suit's resolution.



2. The public entity bringing suit for condemnation shall compensate the defendents for time spend defending against the suit in the amount of their customary or normal professional compensation as determined by the higher of either normal compensation from an employer or proration based upon a 2000 hour work year and their gross income from their profession in the preceding year as filed with their federal income taxes. This compensation shall also be paid regardless of the outcome of the suit.



3. In the event of a successful condemnation, the property owner shall be additionally compensated no less than the greater of either factor A of the fair value of the property determined in accordance with usual practices or factor B of the cost of replacement property. This evaluation shall be determined at the most favorable to the defendant of the following times: The time that the entity bringing suit takes possession of the property as determined by accomplishment of both transfer of title and vacation of the property by current tenants, or the time of purchase of replacement property. Additionally, the beneficiary shall pay all transaction expenses involved in the transfer of the condemned property and shall also pay all transaction costs of the defendant of a successful condemnation in acquiring a replacement property.



4. In the event of a successful condemnation, neither rent nor property taxes shall be required of the defendants for any period at issue until 30 days after the conclusion of the final appeal.



Factor A and factor B in 3 above need to be set by societal concensus. I'd like to see factor A around 150 percent and factor B around 125 percent, but as long as factor A is at least 120 percent and factor B is at least 110 percent, I'll be satisfied enough.