Somin: Didden Case Represents Egregious Example of Pretextual Condemnation

Didden v. Village of Port Chester represents "a most unfortunate decision out of the 2d U.S. Circuit Court of Appeals," says Professor Ilya Somin, writing in The National Law Journal. Somin and co-writer Richard A. Epstein argue that Didden offers the court the opportunity to apply constitutional limits to condemnation actions when there is no clear public benefit to the taking. Citing Didden as a "particularly egregious example of pretextual condemnation and 'favoritism,'" the authors point out that the community acquired nothing from the change in ownership except the cost of the condemnation action.

A pretextual taking, The National Law Journal, January 8, 2007. By Richard A. Epstein and Ilya Somin.

"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. Kelo urged courts to defer to the supposed expertise of local governments in deciding which takings are needed to satisfy 'public needs.' But local governments are not using any expertise when they simply delegate the power of eminent domain to self-interested private parties such as Wasser who then piggyback for free on the business expenditures of others.

"Didden also illustrates two disturbing trends in modern takings law. One is the excessive delegation of public authority to private interests. Port Chester could not have made this kind of threat if it had taken direct control over condemnation proceedings. No public body can act as a hold-up artist. Why then should it be allowed to delegate to a private party the right to make threats that it could not make itself? Second, the entire public use issue has been clouded by procedural shenanigans with an Alice-in-Wonderland qualtiy. New York law allows challenges to a redevelopment plan only within the first three years after its announcement. Yet Wasser's offer took place four years after the redevelopment area was created. The 2nd Circuit held that the owners' challenge came too late because it did not come within the three-year period, even though the underlying wrong occurred only one year later. This procedural obstacle would never by tolerated in ordinary personal injury cases; the same principles should apply here.

"At every turn, the courts have allowed government agencies greater discretion over the lives and fortunes of citizens. And in too many cases, they have responded by taking things one step too far. That trend needs to be reversed. Didden is a good place to start."

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