Port Chester - Eminent Domain

I am often astonished by political events in the Village of Port Chester (which is adjacent to Rye Brook) in Westchester County.

Consider the case of Didden v. Village of Port Chester. As described by Prof. Richard Epstein of the University of Chicago Law School:

In 1999, the village of Port Chester, N.Y., established a "redevelopment area" and gave its designated developer, Gregg Wasser, a virtual blank check to condemn property within it. In 2003, property owners Bart Didden and Dominick Bologna approached Wasser for permission to build a CVS pharmacy on land they own inside the zone. His response: Either pay me $800,000 or give me a 50% partnership interest in the CVS project. Wasser threatened to have the local government condemn the land if his demands weren't met. When they refused to oblige, their property was condemned the next day.

Didden and Bologna challenged the condemnation in federal court, on the grounds that it was not for a "public use," as the Fifth Amendment requires. Their view, quite simply, was that out-and-out extortion does not qualify as a public use. Nonetheless, the 2d Circuit, in a brief and unsatisfactory decision, upheld this flexing of political muscle. At present, Didden and Bologna are working against the odds to persuade the U.S. Supreme Court to hear the case.

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Didden is a particularly egregious example of pretextual condemnation and "favoritism." The owners' property was condemned only because they refused to pay Wasser the $800,000 he demanded. Yet what public benefit would follow if they had succumbed to Wasser's threats by putting the big bucks in his pocket, not the village treasury? Wasser planned to build a Walgreens pharmacy on the property-exactly the same type of use as the original owners' planned CVS. The community gained nothing from the change in ownership, while having to bear all the costs of condemnation. Didden and Bologna in effect were forced to turn over all the value gained from their site evaluation to Wasser without so much as a dime in compensation.

Epstein RA, et al, A Pretextual Taking, National Law Journal (Jan 8, 2007).

Didden has asked the United States Supreme Court to review this case. Statistically, the chances of obtaining review are low. But this is an outrageous case, and the Court may wish to use it as an opportunity to re-visit its controversial and closely-decided Kelo decision. We should know later this month.

And there is another interesting twist. Didden just announced that he is running for office (Trustee) in Port Chester in an election scheduled to be held on Mar 20, 2007. Thus, if the Supreme Court decides to review the case, and if Didden is elected to office, we will have the interesting situation of a sitting Trustee litigating the constitutional limits of eminent domain against his own Village in the Supreme Court.

And if that wasn't enough, the scheduled election might not be held because the Justice Department is suing Port Chester for alleged violations of the Voting Rights Act of 1965. The DOJ is seeking a preliminary injunction that would enjoin the election. An evidentiary hearing is scheduled to be held on Feb 12, 2007.