Next big test of power to seize property?
The US Supreme Court will examine whether a private company can demand payment in exchange for not seizing private property.
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"The thing that got [G&S] to spend over $100 million in the village is that at the end of the day he is going to make money," says Mark Tulis, a lawyer for the village. "He is going to make money by building a Costco and renting a Costco, building a Stop & Shop and renting a Stop & Shop, and building a Walgreens."Skip to next paragraph
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In effect, there is an economic value to the G&S agreement with the village. It equals the potential amount of profit G&S might extract by developing the property.
From this perspective, Didden's proposal to build a CVS on a portion of the redevelopment site cut into G&S's anticipated profit from its plan to develop a Walgreens in the same area.
Mr. Tulis says control over the redevelopment zone and the resulting profit is the benefit of the bargain struck between G&S and the village in 1999. "It would be inappropriate for the village to change the bargain after G&S has been successful," says Tulis. "A contract is a contract."
Rather than extortion, as some suggest, G&S was seeking compensation from Didden in exchange for freeing up a portion of redevelopment land controlled by G&S to allow Didden's CVS project to go forward, says Mark Weingarten, an attorney for G&S.
The discussion over the $800,000 was a settlement negotiation undertaken at the request of village officials, Mr. Weingarten says. "We have the right to go forward with this project and keep it all to ourselves," the attorney says. "We were offering this as a way to give him a share."
Didden has a different view of the case. "In 1999 when they acquired the rights to condemn my property, if they [had] offered me fair compensation I would have taken the money and been on my way," he says. "But they let me keep my property for four years. They let me maintain it and pay taxes and make repairs, and only when I showed up looking for approval for a redevelopment that would have substantially increased the value of the property did they condemn it."
Didden says he's not opposed to redevelopment – only to the methods used in Port Chester. "The whole process has been outsourced to the developer without any checks or balances by the village," he says.
The village and the developer are named as codefendants in Didden's suit. Their lawyers say the case was properly dismissed by a federal judge and a federal appeals court panel because Didden failed to file his suit in 1999, when the redevelopment contract was debated and approved. He missed the 30-day deadline, they say.
Ms. Berliner says if the lower court rulings in this case stand, "it would mean that every redevelopment area in the country would be a Constitution-free zone. Any taking [of property], no matter how private, would be OK as long as it was in those areas."
The lower courts were wrong to throw out Didden's suit because he allegedly missed the deadline, Berliner says. The action against Didden didn't occur until 2003, and there was no way to know in 1999 what might happen to Didden's property, she says. The Constitution mandates that a remedy be available, the attorney says. "This issue is one of real national significance," Berliner says. "There are so many redevelopment areas in the country, and giving immunity to any kind of misbehavior in those areas will have huge effects."