D.C. Circuit Grapples with Eminent Domain Taking in Southeast DC

October 19th, 2009

From BLT, the D.C. Circuit is considering the taking of a shopping center in Southeast D.C. For those of you who have never been to Southeast, it is one of most impoverished areas of the region. Not much of a surprise that DC is targeting this area, and not somewhere in Georgetown or Dupont. As I discuss in my Loyola Law Review on eminent domain, the burdens of eminent domain takings for private development disproportionately fall on the poorest segments of society. Tragically, those least prepared to fight eminent domain are most likely to be victimized by it. In this case, the plaintiffs are represented by a sole practitioner from Virginia.

Based on the questioning, the Judges seem to sniff through the veneer of the “public use” and realize that this may be a transfer for private gain.

[Judge] Williams grilled Schifferle about the District’s intent to purchase the land for some $25 million and then resell it for $4 million. Williams said that plan “raises questions.” He said that it “looks like a pretty sweet deal” for private interests and that the cost to taxpayers doesn’t “suggest an advancement of the public interest.” Schifferle responded there are no allegations of corruption or bribery.

Schifferle said there’s no contract to develop the property, just an “exclusive rights” agreement with a developer. Development of the land, he said, would serve as a catalyst to growth in Southeast Washington.

Reselling private land at a huge loss to private developers? Sounds like a transfer to me. Though under Kelo, this transfer is perfectly permissible.