Posted by Ilya Somin:
A Questionable Taking in Milwaukee:
http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244662023
The Milwaukee Journal-Sentinel has [1]an article describing what seems
like a classic example of the use of eminent domain to take private
property for the purpose of giving it to politically influential
interests (HT: VC reader Rob Driscoll]:
Employing a rarely used provision of city code, Milwaukee officials
are poised to take two commercial lots from one owner and then sell
them to another developer who has made campaign contributions to a
key alderman.
If the land acquisition goes through, it will dash the dreams of
Rafael Cetina, whose family bought the land in 2002 with visions of
building a restaurant and club that would serve spicy Mayan flavors
paying tribute to his heritage on the Yucatan Peninsula....
The family that owns and operates Pete's Fruit Market would benefit
from the deal. They made $2,000 in campaign contributions last year
to Ald. Jim Witkowiak, who has played a major role in the city's
plans to take the land from Cetina.
Witkowiak says he has known the market's owner since he first began
selling fruit, and helped him acquire a permit. But he said that
has not compromised his judgment.
"I definitely want to see the area redeveloped in a positive way,"
he said.
On Tuesday, the city's Zoning, Neighborhoods & Development
Committee, chaired by Witkowiak, voted to approve the land
acquisition. The ultimate decision will rest with the Common
Council.
The Cetinas bought the first parcel in 2002 and spent $200,000 on
everything from steel framing to lighting fixtures to eventually
build the restaurant and club. He is now weeks away from losing the
land to the city.
Two weeks ago, the city's redevelopment authority deemed the vacant
land blighted and voted to use eminent domain to buy the property.
Cetina said he has gotten a raw deal and is losing his land because
the city doesn't want a nightclub there....
Milwaukee aldermen exert great influence over licensing decisions
in their districts through a well-established system known as
aldermanic privilege. Aldermen typically defer to the wishes of the
local council member on such matters, giving the local official
unofficial veto power...
Wisconsin is one of many states that has passed post-Kelo reform laws
that purport to constrain these sorts of abuses, but actually provide
little or no real protection for property owners. I discuss
Wisconsin's statute on page 26 of [2]this forthcoming article, which
also covers many similar loopholes in other state's laws. Like many of
the other states, Wisconsin forbids the use of condemnation for
"economic development," but allows much the same kinds of takings to
go on under the cover of alleviating "blight." [3]As is typical of
many such statutes, Wisconsin's new law defines "blight" so broadly
that virtually any area can be declared blighted if the local
government wants to take property located there. The city appears to
be utilizing the "blight" loophole in this case, and they may well win
in court on it.
I think it perfectly possible that Alderman Wytkowiak is sincere in
his belief that he wasn't influenced by the fact that the condemned
property will be sold to an important campaign contributor of his.
Unfortunately, however, many dubious condemnations occur in part
because people are very good at persuading themselves that anything
that advances their self-interest also benefits the public. Such
factors were[4] a big part of the story behind the Kelo takings as
well.
References
1. http://www.jsonline.com/watchdog/pi/47483262.html
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976298
3. http://www.law.gmu.edu/assets/homepages/isomin/files/LegalTimes_Blight.pdf
4. http://volokh.com/posts/1235208323.shtml
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