Thursday, July 20, 2006

Land theft proponent invokes free speech defense for trespass conviction

Convicted trespasser Rich Collins appeared this afternoon on WINA's Charlottesville Right Now in the 4pm segment. During his campaign in 2005 for the Democratic nomination for the House of Delegates seat now held by David Toscano, Collins was arrested for campaigning on private property at Shoppers' World on U.S. 29 north. He plans to appeal the conviction to the Virginia and possibly the U.S. Supreme Court.

In the following 4:30 segment of Coy Barefoot's radio show, Sean McCord made the claim that property rights are a fiction. McCord said modern property rights result from Europeans coming to America and forcing Indians off the land, then entering into a written agreement with the government to protect the settlers from the Indians. According to McCord, nowadays people view property rights as a way to protect their land from the government.

McCord's blog: or
(The blog was down when this story was posted.)
[Here's the correct address: ]

Rich Collins on the Kelo v. New London, CT, Supreme Court decision of June 23, 2005.

I am surprised to see so little support for the Supreme Court's decision in Kelo vs Connecticut. Everything seems so topsy-turvy ideologically and politically. Right wing property groups have liberals falling all over themselves to change the law because the Supreme Court majority upheld a use of eminent domain for a public use in a manner that upheld traditional precedent, left room for Supreme Court jurisdiction in cases where the public use could be a cover for private advantage, deferred to state and local government courts and legislatures to establish property policy, and conducted a thorough review of the particulars.

The publicity and interpretation of this decision in the press, such as the Daily Progress editorials and headlines, creates an impression of the Supreme Court somehow creating or enabling the arbitrary "seizure" of private homes for big corporate interests. People are surprised that I, as a skeptic about economic development, enthusiastically approve of the decision. But put the particulars aside, and consider the ramifications of a decision which upheld Kelo's claims.This would reverse existing precedent, amount to an enlargement of the role of the Supreme Court in state and local decisionmaking, and invite judicial review without any obvious principle.

Kelo is sound constitutional law, it is only a slight increment to settled property law, an appropriate division of property policy labor between the federal courts and state and local courts and legislatures. It will help to bring to the public a fuller discussion of constitutional law and federalism. At least I hope so. As it is, the current coverage provides a great public relations victory for the right wing property rights advocates,. This case and its attendant media attention can only be understood in the context of two decades of advocacy by the so-called property rights movement. This movement is closely allied with other right wing groups pushing their free market ideology.

As an urban and environmental planner I have a professional long-standing interest in how the courts balance the governments' rights to protect and enhance the public health, safety and welfare and the claim of a "right" to property. Most everyone knows that the property rights groups have been carrying out a well-financed, litigation and political strategy to limit the authority of government to regulate property. Eminent domain as in Kelo is only a target of opportunity in their quest to limit government regulation of property. These groups major goal has been to reverse the historical understandings on the so-called "takings" issue.

Let's be clear: the decision in Kelo will protect the property owner from transfers of property from one owner to another without a careful scrutiny of the public purpose and with assurances that the use is not a disguise for one property owner to benefit at the expense of another.. If one reads the decision it is very clear that this was no "seizure" but a carefully developed, arms length plan, to convert a depressed area into a mixed public and private development.

One of the most interesting things about the Kelo case is the tremendous publicity it has received for such a modest addition to existing constitutional law respecting the authority of state and local governments to define a "public purpose" on behalf of legitimate public purposes. A 1954 decision interpreted the 5th Amendment takings clause which reads "nor shall private property be taken for public use without just compensation" to clearly include "public purpose". This case involved a compulsory sale of property to the D.C. government by an owner who claimed that his property although within a blighted area, was not itself, blighted. The difference between that situation and the Connecticut case is that there is no finding of "blight", and that the plan is not a federally funded urban renewal program, but a state and local development scheme designed to reduce unemployment and reinvigorate the economy of a clearly economically depressed community.

It would appear at first glance that it is the right wing property rights guys arguing against economic development as a public purpose. But.with some sense of the well-financed and organized efforts of property rights groups (ie development interests) in this country to weaken the authority of government to protect the environment and to limit development based on reasonable public plans, one draws another conclusion. The concentrated ownership of land in this country is not well appreciated, particularly when many of us possess a homestead, and little else. So as a political recruiting tool for pro-property rights supporters this case is a bonanza. And this bonanza is what motivated the litigation, not the homeowners. If the Kelo case been decided the other way, it would have encouraged Justices Scalia, Thomas, and Rehnquist that their views of property rights would be advanced by Supreme Court edicts. Most of the property cases these same Justices and the litigators have supported have been aimed at suppress environmental and land regulations which are arising throughout the nation. A pro-Kelo decision would have represented a Supreme Court willing to go back to the 1930's in terms of its authority to oversee social and economic legislation and strike it down when it didn't match their economic prejudices or theories.. It would have reversed the understandings of 50 years of constitutional law. It would have given even more ill-informed media coverage to well-financed, right wing, think-tank and litigation units that sanctify markets and property rights as bulwarks against progressive change.

The factual situation exploited by the property rights groups in Kelo will arise again: it will play out when another elderly woman will become the symbol of over-reaching government when she will be unable to build a house on her lot near Lake Tahoe. She will claim that her property was "taken" just as Kelo's was "taken" All of the ecological planning, political skill, and ingenious compromise that has been committed to saving Lake Tahoe's truly unique qualities will be threatened. And the same lawyers with the same groups will be defending her, too. I hope and believe the Court will defer to the political and ecological expertise of California and Nevada in the emerging Lake Tahoe case. I support Kelo because it will strengthen the capacity of democratic planning legislation in future cases. Kelo is a victory for the environment, not for economic development.

Rich Collins
July 1, 2005

Blair Hawkins' Rebuttal

This former chairman of the Charlottesville Redevelopment and Housing Authority in the '70s and 80s does not disclose how many properties were seized or sold on his watch.

He cannot mention any detail of his relevant past because he would instantly discredit himself. He relies on an uninformed electorate to accept his theories blindly. But he gets points for clearly identifying his position in the opening sentence. He gets more points for clearly stating his opposition to free market principles. The opposite of a free market is an economy where government has unlimited power and control, and owns everything-- the benevolent landlord view of government.

Collins uses rhetorical techniques similar to Snook. Supporters of public use eminent domain are radicals motivated only by self-aggrandizement and a desire to destroy the environment through individual private actions.

Collins points out that this case and the media attention can only be understood in the context of two decades of advocacy. He's right. The eminent domain bulldozer sputtered to a crawl toward the late 1970s. The opponents from back then, and now their children, have been watching to see how the blight elimination experiment turns out. The evidence shows that the only benefit is that politicians get promoted as their developer friends get rich. In light of the data now available and the numbers of people who have witnessed the program's myriad ill effects, supporters of forced redevelopment should expect a terrific fight.

Collins claims he wants to protect the environment. His support for continued urban renewal is a call for more environmental catastrophe. Would a parking lot be better for the environment than a few houses, lawns and trees? Would a hole in the ground for weekly festivals be better for the environment than houses and trees (ACAC on Garrett Street)? Would mountain top removal be better for the environment if it was for a good cause (site of Friendship Court public housing)? Would the environment be better if neighborhood streams were channeled into underground culverts instead of flowing freely in the open?

You can't support blight redevelopment and the environment at the same time. At least not with any credibility. If blight redevelopment is such a good idea, let's start a list of successful projects to counter-balance the failed efforts. While he does mention southwest Washington, D.C. in the 1954 Supreme Court that moved by increment away from individual rights, Collins doesn't dare claim this area is better off than 50 years ago.

I'm sure Collins and Snook are nice people. They have friends and family who love them. I believe they have genuinely helped people. They're pleasant and charming at parties and charismatic. So were the segregationists and the slave owners. But their unjust policies were not allowed to prevail forever.

Blair Hawkins
July 2, 2005
Excepts from "Charlottesville debates eminent domain", (defunct) July 2, 2005


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