Wednesday, March 08, 2006

This Isn't Russia. Is this Russia? This isn't Russia *

*(Who said this?)

"Say Mortimer old chap, what can we do to raise property values - and hence raise property tax revenues - of our wealthy little hamlet?"

"Well, Randall old bean, we could get the Mayor to condemn that private golf course over there and turn it into a public course!"

"Brilliant! Let us adjourn to have a snifter of 400 year old cognac."

Folks on the East Coast are gearing up for more wacky eminent domain hijinks:

Lawsuits were filed Tuesday aimed at stopping an affluent suburban village from using the legal concept of eminent domain to take over a privately owned golf course.

"This proposed condemnation may be the most extreme abuse of eminent domain in the country," said John Wilson, a Deepdale Golf Club member named as a plaintiff.

The complaint probably will be dismissed in short order since the suit is not ripe:

The village's mayor said the federal and state lawsuit were a "pre-emptive strike" and no decision has been made on whether to proceed with a takeover of Deepdale, considered one of the finest golf courses in the country.

Still this case is galling. Extremely galling, since the proposed taking of Deepdale isn't to make way for a highway, a parking lot or even a classy seaside resort. Oh no, they want to condemn the private golf course to make way for...

...a public golf course.

In previous interviews Natiss has said that the village takeover would "increase property values" because of the cache of having a municipal golf course open to all 1,800 residents.

He said any final decisions "could be a year away."

"I only do what's in the best interest of village residents," the mayor said, adding a poll conducted several years ago found residents would favor a village golf course "as an amenity."

Oh we wouldn't want to begrudge a bunch of well heeled douchebags (most of whom could probably afford membership anyway) their right to an "amenity".

Unfortunately, this case - if it comes to fruition - will likely serve to illustrate yet another instance of "Just because its legal to do something doesn't mean it's the right thing to do." The New York Court of Appeals (that state's highest court) ruled in a 1976 case that it was a permissible use of the government's eminent domain power to take over (buy out, if you will) a fully private business for the purpose of continuing to engage in that same business. In a sentence that will lead every single paragraph of every single memorandum the Village of North Hills will put in front of the court, should this situation come to that, the court expressed the view (which is really not all that controversial if apply it to other contexts) that morality, prudence and even legitimate need don't weigh all that heavily into the calculus of whether or not a taking is legal:

Public use or public purpose is not limited to public need, although perhaps desirability, and consequently it is no contradiction of public use or purpose that private enterprise could do as well or even better. In any event, the public need or desirability, without more, is not subject to judicial review.

New York State School Bus Operators Ass'n v. Nassau County, 350 N.E.2d 593 (NY, 1976). (Sorry, no link)

Oh, and I forgot to mention: that decision was unanimous.

But keep in mind, if you are a strict constructionist, the problem is not with the law. Turning a private golf course into a public golf course fits very neatly into the constitution's (both federal and New York's) restriction on takings for a "public use". Nor is the problem with Kelo, which I'm pretty certain is only tangentially relevant (there, eminent domain was employed to take private land which was then sold to another private interest). The real problem is with the raging power-drunk imperious a-holes that always manage to get elected to positions that allow them to pull crap like this.

And only those members who are also constituents of said raging power-drunk imperious a-holes, have any recourse at all.

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