High Court Refuses to Hear Eminent Domain Extortion Case

By Robert McNamara

As documented in the Bill Brody feature (on page 10) and in this article, government officials and the favored developer of Port Chester, N.Y., are among the nation’s most ruthless and unprincipled abusers of eminent domain, using their power time and again to go after the most entrepreneurial individuals in the village.

After Bart Didden and his business partner, Domenick Bologna, struck a deal to build a CVS pharmacy on a piece of land they owned in Port Chester, they thought their prospects looked pretty good.  Unfortunately for them, so did Gregg Wasser, the developer in charge of Port Chester’s redevelopment project—and he wanted a piece of the action.

In 2004, Wasser approached the pair with an offer they could not refuse:  they could either pay him $800,000 or give him a 50 percent stake in their planned CVS.  If they refused, Wasser would have the village condemn their property and turn it over to him so he could build a Walgreens.  Less than 24 hours after they rejected this attempted extortion, their property was condemned.

“IJ remains at the forefront of the national effort to persuade judges that our rights depend on the willingness of courts to take them seriously against eminent domain abuse, and we will continue to seize every opportunity to press the courts into restoring protections for Americans’ property rights.”

When Bart filed suit to prevent the taking, the federal district court tossed the case out, saying that the use of eminent domain in an extortion racket simply to fatten the developer’s profits was perfectly constitutional because the land in question was within the village’s “redevelopment area.”  The 2nd U.S. Circuit Court of Appeals agreed, affirming in a two-page, unpublished opinion.

The indifference of these courts to outright extortion underscores one of our major challenges:  convincing judges that they have an essential constitutional role in property cases.  IJ took up Bart’s cause and asked the U.S. Supreme Court to review the case.  The question was simple.  Are citizens entitled to ask for judicial review of condemnations, or can a city create a constitution-free zone just by designating it a redevelopment area?  While the Court declined to hear the case, the issue was widely reported across the nation eliciting outrage over the fact that courts are not simply ruling for developers, but refusing to hear cases at all.  IJ remains at the forefront of the national effort to persuade judges that our rights depend on the willingness of courts to take them seriously against eminent domain abuse, and we will continue to seize every opportunity to press the courts into restoring protections for Americans’ property rights.

Robert McNamara is an IJ staff attorney.