Landowner Asks Supreme Court to Hear Eminent Domain 'Extortion' Case

By Nathan Burchfiel | July 7, 2008 | 8:06 PM EDT

( - Claiming he is the victim of legalized extortion carried out under eminent domain powers, a landowner in New York is asking the Supreme Court to hear his case.

Landowner Bart Didden claims in a petition that a developer convinced the village of Port Chester, N.Y., to seize his land through eminent domain after Didden had refused to pay the developer $800,000.

As part of a 1999 redevelopment plan, the council had designated Didden's land as a "redevelopment area." This gives the council the power to condemn the property and hand it over to a developer of its choice.

Didden planned to build a CVS Pharmacy on the site, but the developer, Gregory Wasser of G&S Investors, wanted to build a Walgreens there. According to the petition, Wasser threatened to convince officials to condemn Didden's land under eminent domain if Didden did not pay him $800,000 or make him a 50 percent partner in the CVS project.

Didden says he refused the offer on Nov. 5, 2003. On Nov. 6, 2003, the village of Port Chester filed a condemnation petition to acquire the land and transfer the lease to G&S to construct a Walgreens.

Didden calls the case "extortion through the abuse of eminent domain" justified by the 2005 Supreme Court decision in Kelo vs. City of New London, in which the court ruled that the Fifth Amendment "takings clause" allows the government to condemn private property for redevelopment purposes.

"Essentially, the courts have ruled Kelo turns any redevelopment zone into a Constitution-free zone for property owners confronted by politically connected developers," Dana Berliner, a senior attorney with the Institute for Justice, said in a statement.

The Institute for Justice is representing Didden in court. It also argued on behalf of petitioners in the Kelo case.

The U.S. District Court for the Southern District of New York dismissed Didden's complaint because it said he had failed to articulate a claim within three years of his land being declared a redevelopment zone - which first occurred in 1999.

Didden argued that his actual injury did not occur until Wasser approached him with the offer to not seize the land in return for a payment in 2003, but the district court ruled that the statute of limitations had passed.

The Second U.S. Circuit Court of Appeals last April then affirmed the lower court's dismissal, ruling that the payment discussion as described by Didden "was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

Didden is now asking the Supreme Court to clarify its ruling in Kelo and direct lower courts on how they should interpret it.

"We want the Supreme Court to rule that the Constitution does not permit governments or citizens acting on their behalf to demand money in exchange for allowing property owners to keep what is rightfully theirs," Berliner said.

"The very fact that we have to ask the highest court in the land for such a ruling underscores how precarious and threatening things are getting for ordinary American landowners," Berliner added.

John Watkins, an attorney for the village of Port Chester, told Cybercast News Service there was no reason for the Supreme Court to take up the case because "the lower courts have properly disposed of the matter."

While the local authority did not directly dispute Didden's account of the meeting, Watkins said it didn't amount to extortion.

"We're not saying the meeting never happened," Watkins said. "The village had encouraged the developer [Wasser] to meet with Mr. Didden to see if they could work something out. It was essentially a negotiation, an offer, a proposal which Mr. Didden refused."

Watkins said G&S had a right to the profit from pharmacy project because it had invested time and money to build infrastructure in the area under its agreement with the village to spearhead the redevelopment project.

He said Didden "wanted to ... take advantage of all of the money and the effort that was put in by both the village and the developer of the project that far."

See Earlier Stories:
Nine States Vote to Limit Gov't Land-Grab Powers (Nov. 9, 2006)
Eminent Domain Abuse Is Rare, Expert Says (Nov. 7, 2006)

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