I don't see the Supreme Court decision in the Kelo case as being of any
benefit to cemeteries. Cities are after revenue in whatever manner they can
get it and old cemeteries don't produce revenue. Very few cities or judges
for that matter seem to be interested in preserving historical places
including cemeteries. I think the definition of hallowed ground has just
changed. I wouldn't expect any city or county to be interested in
condemning an old cemetery to preserve it. We need another plan.
Rex Kirby
Texas
-----Original Message-----
From: Sue Silver [mailto:ssilver1951@jps.net]
Sent: Monday, June 27, 2005 10:00 PM
To: INPCRP-L(a)rootsweb.com
Subject: Re: [INPCRP] SUPREME COURT REINFORCES TAKINGS POWER
It could very well bode ill for the cemeteries.
On the other hand, might it not now give the Township Trustees the
ammunition they've not had before to "take" the cemeteries under their
trusteeship for the "good of the public"?
I've already recommended that one county in California review this decision
to help it resolve the matter of an abandoned "modern" cemetery where living
relatives are suffering because of the neglect of the present owner. My
suggestion is that the county condemn the cemetery, declare it abandoned and
to take it for the benefit of the public. We'll see what they do with the
recommendation.
I haven't read the entire Supreme Court decision, but I have been listening
intently to television debates as to the potential danger of the ruling
overall.
Sue Silver
California
----- Original Message -----
From: "Lois Mauk" <loismauk(a)insightbb.com>
To: <INPCRP-L(a)rootsweb.com>
Sent: Monday, June 27, 2005 6:55 PM
Subject: [INPCRP] SUPREME COURT REINFORCES TAKINGS POWER
I think this new U.S. Supreme Court ruling could be construed BADLY
with
respect to cemeteries which "lie in the path of progress". See:
http://www.abanet.org/journal/ereport/jn24sct.html
SUPREME COURT REINFORCES TAKINGS POWER
Justices Rule a Municipality May Seize Private Property to Help a
Developer's Project
BY JOHN GIBEAUT
ABA Journal EReport
Susette Kelo lost her tidy waterfront home, and New London, Conn., gained
an upscale residential, retail and commercial development yesterday when
the U.S. Supreme Court narrowly held that the city's plan to seize homes
from Kelo and her neighbors satisfied the public use requirement of the
Fifth Amendment's takings clause.
The 5-4 decision could greatly expand municipalities' use of condemnation
not only to clear away urban blight for economic development, but also to
take well-kept homes and other property in still-viable neighborhoods for
the same purpose. Kelo v. City of New London, No. 04-108.
"I think it's a great victory for the people of New London, who are our
clients," says city lawyer Daniel J. Krisch of Hartford. "Now an economic
development program that has been on hold can go forward. And it's a great
victory for cities across the country."
The city embarked on the project in New London's Fort Trumbull area after
the area's last major employer, the U.S. Naval Undersea Warfare Center,
closed in 1996, eliminating 1,500 jobs. For the Supreme Court majority,
the case boiled down to the greater good against the interests of Kelo and
eight of her neighbors, who had fought the plan for five years.
"Those who govern the city were not confronted with the need to remove
blight in the Fort Trumbull area, but their determination that the area
was sufficiently distressed to justify a program of economic rejuvenation
is entitled to our deference," Justice John Paul Stevens wrote for the
majority.
Joining Stevens were Justices Anthony M. Kennedy, David H. Souter, Ruth
Bader Ginsburg and Stephen G. Breyer. Justice Sandra Day O'Connor led the
dissent, joined by Chief Justice William H. Rehnquist and Justices Antonin
Scalia and Clarence Thomas.
The decision flowed from the court's gradually expanding view of the
takings clause over the last century. It's an expansion that finally has
gone way too far, O'Connor complained in the main dissent, suggesting the
decision signals open season on homeowners.
"Under the banner of economic development, all private property is now
vulnerable to being taken and transferred to another private owner, so
long as it might be upgraded - i.e., given to an owner who will use it in
a way that the legislature deems more beneficial to the public-in the
process," O'Connor wrote.
But careful planning and a $10 million bond issue the state floated toward
creation of a park in the area also played significant roles in the
outcome. The development would raze 115 homes and replace them with a
waterfront conference hotel, restaurants, shops, marinas, rows of urban
townhouses and an office park. Pharmaceutical giant Pfizer Inc. also plans
a $300 million research facility on an adjacent site.
"The city has carefully formulated an economic development plan that it
believes will provide appreciable benefits to the community, including,
but by no means limited to, new jobs and increased tax revenue," Stevens
wrote. "As with other exercises in planning and urban development, the
city is endeavoring to coordinate a variety of commercial, residential and
recreational land uses with the hope that they will form a whole
greater
than the sum of its parts."
The court also reaffirmed that it intends to continue giving states wide
latitude in justifying public uses for property condemned under the
takings clause. Thus, the next fight looms in state courts, say lawyers
for the Institute for Justice, a Washington, D.C.-based libertarian public
interest law firm that represents the homeowners.
"It's a dark day for American homeowners," Institute senior attorney Dana
Berliner said in a statement. "While most constitutional decisions affect
a small number of people, this decision undermines the right of every
American, except the most politically connected. Every home, small
business or church would produce more taxes as a shopping center or office
building. And according to the court, that's good enough reason
for
eminent domain."
Kelo and her neighbors, who own 15 of the homes in all, were the lone
holdouts who fought the southeastern Connecticut city's plan through the
state justice system and on to the U.S. Supreme Court.
Kelo and her husband, Tim, bought their pink Victorian in 1997. The
Supreme Court majority noted that she has made extensive improvements to
the home, which is near the point where the Thames River flows into Long
Island Sound. One of Kelo's neighbors, Wilhelmina Dery, was born in her
Fort Trumbull home in 1918 and has lived there all her life.
"There is no allegation that any of these properties is blighted or
otherwise in poor condition; rather, they were condemned only because they
happen to be located in the development area," Stevens wrote.
The majority also eschewed a hard-and-fast rule proposed by the homeowners
that economic development does not qualify as a public use under the
takings clause. That proposal is supported "neither by precedent nor
logic," the court said.
Despite the ominous warnings coming from the Supreme Court dissenters and
the homeowners' lawyers, city lawyer Krisch predicts that dollars and
political sense will act as checks on abuses.
"This is still public money," Krisch says. "Cities don't become
spendthrifts just because they can use eminent domain. They still have to
pay for the property."
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