A hotel at Justice Souter's home?

So, in the aftermath of yesterday's last week's Supreme Court ruling on the use of takings for private economic development, comes this announcement:

Weare, New Hampshire - Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.

Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America.

See the press release here and the letter to the City of Weare here.


  • (Show?)

    What strikes me about this is the way that the outrage is coming from both the left and right. Right is upset about takings. Left is upset about its use for private entities.

  • Sid (unverified)

    Yeah, I was with O'Conner on this one. Although liberals probably subscribe more to the kind of philosphy she used in her dissenting opinion, it still had populist tones to it, e.g. there's nothing now that will stop the well-heeled, highly connected and influential (wealthy GOP donors) from taking homes from ordinary citizens (the rest of us.)

    It's an interesting case, for sure.

  • littlevoice (unverified)

    Again, people should take the time to actually read the case. The Court made it clear that a simple exchange from one private owner to the next would NOT pass constitutional muster. There has to be a comprehensive plan/process, including multiple property owners, etc. I agree, this particular case makes me glad I don't live in New London, but I'm glad SCOTUS made it a local decision instead of coming up with some national bright-line rule about what constitutes public purpose.

  • panchopdx (unverified)

    Libertarians are upset about both.

    That's why the Institute for Justice fought Donald Trump's attempt to use eminent domain to help him acquire a little old lady's property to improve the view from one of his hotels.

    But very few thoughtful conservatives would argue against the principle of eminent domain for public necessities. They might have some qualms with the definition of "public necessity" or how governments arrive at market value, but still recognize that sometimes there is only one place you can build a dam, freeway, etc.

  • dispossessed (unverified)

    It's not just an interesting case, but an interesting line of divide in re State v. Individual. I don't hang or think left or right, and my associates are freakin'. An authoritarian tyranny vs. a collectivist tyranny both abandon the quintessential American exceptionalism of individual rights. Collectivism or authoritarianism insofar as necessary public use is one thing; either insofar as other private enterprise ostensibly for public purpose starts chapping at the very core.

    The upside could come to be small or spreading legislative revolutions from below. But I too side with O'Connor in deeming this ruling a bad misconstrual of original intent.

  • Joe (unverified)

    but I'm glad SCOTUS made it a local decision instead of coming up with some national bright-line rule about what constitutes public purpose.

    Taking private property from one person to give to another private party constitutes “public use”? That situation is never public. The 5 justices who said so on the court are biggest morons in the country.

    The 5th amendment states nor shall private property be taken for public use, without just compensation.

  • (Show?)

    Correction: the Kelo case was last week.

  • Jud (unverified)

    Joe, How does the 5th Amendment define "use"?

  • littlevoice (unverified)

    Taking private property from one person to give to another private party constitutes “public use”?

    No, the city's broad plan for economic development is what the court says constitutes the "public use." The precedent for this was set a long time ago. Think "railroad" and how tons of private land has been given to a private entity (the railroad) based on the ultimate public benefit as determined by a legislative body. I agree it seems unfair, but that's why the people of New London can vote out the city officials that made the decision. SCOTUS decided that a legislature is better suited to make that kind of a decision. Perhaps you agree, Joe, since you think SCOTUS is at least half-full of morons.

  • Steve Bucknum (unverified)

    Littlevoice is being somewhat deceptive in the statements that this decision will not allow property transfer from one private owner to another due to issues of comprehensive plan, mulitiple lots, etc. Hard to say if the deceptiveness comes from ignorance or intention.

    No, you are wrong. In fact, the wealthy already have their land consultants lined up to use the facilities of the government to acquire land for profit. As a former Planning Commission member, I saw first hand that those who hired land consultants to go through the planning process for them had a great success. It is not a level playing field. Once the rules are known, a good land consultant fits the "plan" to the law, and works to take what they can. If you have to acquire three properties to get the one you want, you do it, and if you don't want to keep all three, you sell off the two you don't want after the deal closes.

    I would be worried if I were Justice Souter's neighbor.

  • littlevoice (unverified)

    I promise this is the last thing I'll say about this subject. I agree with Don's Comments and don't know why this is causing such a stir. But in an effort to defend my "ignorance," here's a passage from the opinion that sums it up for me and directs my angst/worry/involvement/hopes/fears toward the local government and keeps me from being hurt by SCOTUS's decision:

    [The] City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896).5 Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. (emphasis added)

    On to the next topic.

  • Lyle Jenkins (unverified)

    I sent the following email today to the Selectmen in Weare, NH:

    Board of Selectmen Weare, New Hampshire

    Dear Selectmen:

    My wife and I would like to book a suite in the "Lost Liberty Hotel" on the former farm of Chief Justice Souter for opening night.

    If still available, we would like to stay in the "Justice Souter Be Careful What You Wish for Suite" on the top floor.

    If that should be already booked, then please give us a suite with a balcony overlooking the splendid views of the former Souter property.

    Also please reserve dinner for us at the "Just Desserts Cafe."

    Let us know which credit cards you accept. We would like to do our part in bringing economic prosperity to your town.

    Looking forward to getting out of the city,

    Lyle Jenkins 103 River St., #3 Cambridge, MA 02139 617-492-5511 [email protected]

  • Jon (unverified)

    I cant wait until this is used to build a Walmart somewhere.

    Hell, down in Keizer they used eminent domain for a private developer's Target and Lowes before this issue in NH ever went to SCOTUS.

    Its just land-grabbing, screw the little guy, and it doesnt matter what particular ideology you adhere to. Its how much money you have. And there are "robber-barons" on both sides.

  • Greg Gerig (unverified)

    Bravo to Mr. Jenkins!! LOL!!

    What's ironic about this is that Logan had just finished taping a segment for his TV news magazine project that focused on the case of Ahmed Mesdaq in San Diego. Mesdaq is the (former) owner of the Gran Havana cigar and coffee shop in the Gaslamp Quarter of San Diego, which was confiscated on June 15, 2005 by the San Diego City Council for development of a Marriott hotel - by a developer who gave sizeable campaign contributions to all but one of the Council members who voted for the taking. The only Council member who voted against the confiscation was also the one Council member principled enough to refuse the developer's money.

    Mesdaq, an Afghani, emigrated with his family to the United States after the Soviet invaders confiscated his family's house in the 1980s. He spent 14 years of his life and millions of dollars building the business, as well as retrofitting the building for earthquake-worthiness, etc. - only to have the San Diego City Council go into a trance and begin channelling Soviet generals...

    You can watch the segment by clicking the image titled "Grand Theft: BUILDING" at FreestarMedia.com

    I also highly recommend the segment "Monkey Beats Social 'Security'," which we filmed on the 3rd Street Promenade in Santa Monica. Whatever your attitude toward privatizing the S.S. Ponzi following the Chilean model, if you don't get a belly-laugh from that monkey, check your pulse. 8^D

    Trouble is, with the massive, worldwide publicity he's been getting in the wake of this Lost Liberty Hotel story, the Freestar Media site has been inundated with traffic - you may have to wait awhile.

    On a final note: Make no mistake about Logan's determination. When he gets an idea, he takes it and runs with it until it succeeds, no matter how radical it sounds at first blush. In the 1990s he took a single-page investors' newsletter he used to publish out of his Beaverton apartment, and turned it into a nationally-distributed business magazine, American Venture, also the first Internet service linking cash-starved entrepreneurs with "angel" investors and vice-versa. Both were written up in the Wall St. Journal, Barron's and a number of other publications. He's since sold his interest in it and is developing his 60 Minutes-type TV series focusing on idiotic laws, oppressive governments and activists willing to stand up against them.

    Souter should bid a fond farewell to his NH home, unless the Weare officials can be manipulated into nixing the project.

  • Don (unverified)

    Pfeh! I like a good PR gimmick as much as anyone else, but this one smacks of mere silliness. The CA character who proposes this is as clueless as others are about the decision. He has no more standing to make such a request now than before the decision. The town council has no more local power to initiate such an action than it did before the decision either. I repeat -- there is Nothing New in this decision that did not apply previously. There is No new governmental power that has not existed for at least the past fifty years and more. There is No mandate on any state or local government anywhere -- either for or against such actions. No statute has been struck down. No precedent has been set. It is now as it was previously -- these remain Local decisions for states and localities to make, and the exact same forces that served to moderate them previously are still in place now. Pfizer is getting None -- repeat Not One Piece -- of the land under discussion.

    This arm-waving is just mostly rhetoric, and little else. If folks don't want this sort of thing done in their communities, they can stop it. If they do, they can let it go on. Each has Precisely the appropriate tools to make a local decision on the matter. The Kelo decision didn't change that -- not even a tiny bit.

    I generally disagree with Paul Greenberg's take on a number of issues, but every now and again, he does come up with some ideas worth considering. The column below ran in a much truncated version in the Statesman Journal Wednesday, but the entire thing is worth a read. So I reproduce it below. (I reproduced it in the earlier discussion as well, but that has now flipped over into the archives, so folks might have missed it.)

    The process of having a state or local government condemn private property for use by a private concern is well established since virtually the inception of the republic. Think railroads, telegraph companies, canals, etc. This legal doctrine has come down to us essentially unchanged, and Kelo merely reaffirmed the court's past doctrine -- to let Local and State folks decide for themselves what's best for their states and communities.

    Those are the closest governments and most amenable to control. It's still not a bad idea at all.

    June 28, 2005 Paul Greenberg

    Wanted: A little perspective, please

    http://www.NewsAndOpinion.com | What's the most shocking thing about the U.S. Supreme Court's decision last week that government has the power to take private property for public use — always with the proviso that just compensation be paid?

    It's that anybody should find it shocking.

    What, after all, is so new about the legal doctrine called Eminent Domain, which has been around at least since the Fifth Amendment?

    Nor has the reason for such seizures basically changed: public use — by which is meant more than just roads, bridges and other clearly marked public property. It has come to mean economic development in general.

    This mix of public with private interests in the American system is at least as old as the Republic itself.

    And the legal question at issue has remained much the same since Alexander Hamilton envisioned a grand union of public and private interests to develop the country, and John Marshall handed down a series of landmark decisions that made Hamilton's dream a reality. The question, simply put, is: How much power does government have to enter into joint projects with private enterprises?

    The 5-to-4 answer to that question last week, in Kelo v. City of New London, was: Plenty. Not unlimited power. Not arbitrary power, but still enough to buy land a city wants for private economic development — the kind of development that promises to benefit the public in general, and therefore is, yes, a public use.

    That's why cities and states are so eager to attract industries — not just to collect taxes on them but to create jobs for their people and provide all the other benefits of a growing economy. That's shocking?

    The only surprising thing about this ruling is that Sandra Day O'Connor, whose swing decisions tend to be so much impenetrable mush, should have suddenly taken a clear position on a legal issue. This time she came out swinging:

    "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms . . . ."

    Quick, hide the women and children! Board up the windows! They're coming for your house!

    Please, a little perspective. Consider:

    These property owners are still entitled to just compensation, which may turn out to be more than fair market value if — like some of the folks who gentrified this old neighborhood in New London, Conn. — you've got not just a lot of money but a lot of emotion tied up in your dream home.

    Also, the local government that decided to take this property (and pay for it) is still accountable to voters who can throw the rascals out.

    And finally, to quote the justice who wrote the majority decision in this case, Anthony Kennedy, there are still various state laws in place that can prevent such seizures, depending on the circumstances in each case. And circumstances still alter cases.

    Federal law needs to remain flexible enough to respect local decisions, rather than setting down some line in the sand that state and local governments dare not cross.

    As for Justice O'Connor's fear that people with money and friends will have the greatest influence on the political process, that's scarcely a shocking new development; it comes with the territory called representative democracy.

    But so does the best defense against undue influence: a vigilant public rather than an over-excitable court. The cure for the abuse of democracy remains more democracy, not a narrow reading of the Constitution.

    Let it be said for those justices who joined Sandra Day O'Connor in dissent that they didn't pretend their position was justified by previous precedents. Clarence Thomas, who's a kind of Antonin Scalia's Antonin Scalia, simply came out in favor of revoking half a century of court rulings defining what's public use. He gets high marks, as usual, for candor and logic. You can tell where he's coming from — and where he would take us.

    Unfortunately, it's not an attractive destination for those of us who think economic development in general — not just roads and bridges — is a worthy public use of land.

    No, we wouldn't favor seizing private property just for the sake of seizing it. But without the power of eminent domain, there might be no Nissan plant covering 1,400 acres at Canton, Miss., producing thousands of jobs in a once-depressed part of that state. Or the new NASCAR raceway that's reviving Kansas City, Kan., or . . . well, let's just say I wish Arkansas's Delta were doing as well.

    The big problem with the strict constructionist/original intent/literal-minded version of constitutional law is that it lacks the genius of the Constitution itself: language that is so flexible it opens a whole future of possibilities while remaining rooted in past rights and practices.

    Just where to draw the line between those competing values requires that most indefinable of qualities: good judgment. And in this case, a slim majority of the court would seem to have exercised it. There should be nothing shocking about that.

  • Don (unverified)

    Briefly, a synopsis:

    • The power of Eminent Domain is one of long standing, with historical antecedents reaching back to Roman times.

    • It is considered a sovereign power under common law, and always has been.

    • It is specifically written into the Constitution for a reason, and the reason is a good one.

    • The definition of what is a Public Use has been broadly interpreted for over a hundred years, and it Has included acquisitions to property that has benefitted Private concerns, corporations and entities.

    • The Kelo decision has changed exactly None of that.

    • The Kelo decision does Not set a precedent, because it reaffirms the status quo ante. Nothing else. Likewise, it is not a Federal Mandate that all future Eminent Domain acquisitions are hereafter approved either. That was and remains a local and state decision.

    • The property acquisition procedures noted in Kelo are Not hereafter allowable in all jurisdictions within the United States. The statutes and ordinances of States and other jurisdictions that forbid, regulate or modify the procedures used in CT are Not now enforceable everywhere or anywhere else. They affect Only Connecticut -- just as was the situation previously.

    • The determination of what is or is not a Public Use remains, as it did previously, a matter for States and Localities to consider, and to adopt or reject as They choose -- not as the federal government or the Supreme Court chooses.

    • In the future, if a State or a Locality wishes to adopt, reject, change, modify or otherwise deal with its own powers of Eminent Domain, it may do so as it wishes. Its decisions will be binding on No Other Entity in the nation, other than itself.

    • Those private entities that have their own powere of Eminent Domain are not affected by Kelo. In Oregon, that includes such entities as PGE, which may exercise Eminent Domain under their own non-governmental authority.

  • Charles Black (unverified)

    I understand the idealogy behind the reason, more business equals boost in economy and so on! But whats to stop these businesses from packing up and closing the doors to relocate to China or India or elsewhere! How's that help the economy or community economically in growth? Lets face it businesses don't start and organize with the idea of economic growth, they are formed from the idea of success and money which together create power. If they cared about the economy they would pay there taxes, and if the government cared they would enforce it, not reward them with million dollar returns!

  • Charles Black (unverified)

    I understand the idealogy behind the reason, more business equals boost in economy and so on! But whats to stop these businesses from packing up and closing the doors to relocate to China or India or elsewhere! How's that help the economy or community economically in growth? Lets face it businesses don't start and organize with the idea of economic growth, they are formed from the idea of success and money which together create power. If they cared about the economy they would pay there taxes, and if the government cared they would enforce it, not reward them with million dollar returns!

  • Bob Hart, Jr (unverified)

    * The power of Eminent Domain is one of long standing, with historical antecedents reaching back to Roman times.

    So was slavery.

    This case was NOT about granting government new power, it was about stopping the eminent domain abuse by local governments and restoring private property rights. Democracies can be just as tyranical as despots.

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