January 17, 2007

Justices Decline to Take Up New Eminent Domain Case

By LINDA GREENHOUSE <http://topics.nytimes.com/top/reference/timestopics/people/g/linda_greenhouse/index.html?inline=nyt-per>

WASHINGTON, Jan. 16 - The Supreme Court on Tuesday bypassed an opportunity to revisit or limit its much-disputed 2005 ruling that upheld governmental power to use eminent domain to foster economic development.

Without comment, the justices declined to hear a case from Port Chester in Westchester County, N.Y., that challenged the village's use of eminent domain in a dispute between a property owner and a private company designated as the developer of a run-down 27-acre urban renewal area.

The redevelopment plan, adopted by Port Chester in 1999, envisioned a retail area that would include a drugstore. In 2002, the developer, G & S Port Chester LLC, announced that a Walgreens store would be part of the project. But Bart Didden, the owner of the parcel where the store was to sit, had by that time separately entered into a lease with a competing drugstore chain, CVS.

After negotiations between Mr. Didden and G & S Port Chester failed, the village sided with its developer and notified the property owner that his half-acre parcel would be taken by eminent domain and made available for the developer's use. Mr. Didden and his business partner, Domenick Bologna, brought a lawsuit in 2004 arguing that Port Chester's condemnation of the property was not for a true "public use," the phrase that identifies the constitutionally permissible use of the eminent domain power, but rather for the private financial benefit of the developer.

The lawsuit accused Gregg Wasser, G & S Port Chester's owner, of having improperly demanded a financial stake in the plan for the CVS store as the price for permission to proceed with it. Both the Federal District Court in Manhattan and the United States Court of Appeals for the Second Circuit dismissed the lawsuit.

In their Supreme Court appeal, Didden v. Village of Port Chester, No. 06-652, Mr. Didden and Mr. Bologna were represented by the Institute for Justice, a public interest law firm in Arlington, Va., that litigated on behalf of the property owners in the 2005 Supreme Court case and that has organized a national campaign against what it calls eminent domain abuse.

Partly in response to the Supreme Court's ruling in that case, Kelo v. City of New London, 34 states have adopted measures limiting the use of eminent domain. The Institute for Justice publicized the Port Chester case widely and looked to it as an opportunity for the court to clarify "that Kelo did not suddenly turn every redevelopment area in the United States into a Constitution-free zone," as Dana Berliner, a senior attorney with the institute, said when the appeal was filed in November.

"The court will have to review an eminent domain case sometime soon," Ms. Berliner said on Tuesday.

The vote in the Kelo case was 5 to 4. The recent changes at the court are not likely to have an impact, however, because both Chief Justice William H. Rehnquist <http://topics.nytimes.com/top/reference/timestopics/people/r/william_h_rehnquist/index.html?inline=nyt-per> and Justice Sandra Day O 'Connor<http://topics.nytimes.com/top/reference/timestopics/people/o/sandra_day_oconnor/index.html?inline=nyt-per>, the two justices who have since been succeeded, were among the dissenters.

Even if there was interest on the court in revisiting the issue, the justices might have seen the Port Chester case as a poor vehicle for doing so, because the lower courts based their dismissal on the property owner's failure to file his lawsuit within the three-year statute of limitations. The suit should have been filed within three years of the village's July 1999 adoption of the redevelopment plan, the courts ruled, rejecting Mr. Didden's argument that the clock did not start running until late 2003, when the village announced that it would take his property.

"I'm so disillusioned with the whole court system at this point," Mr. Didden said on Tuesday.

Mark S. Tulis, special counsel to the village, said in an interview that the village had had to choose between condemning Mr. Didden's property or breaching its 1999 contract with the developer. "Either way," Mr. Tulis said, "we knew there was no way both sides would be happy."

The amount that Port Chester has to compensate Mr. Didden is the subject of a separate lawsuit.

In other action on Tuesday, the court declined to hear a California utility company's appeal of a ruling that required administrative review of the potential environmental impact of a terrorist attack on the Diablo Canyon nuclear power plant in San Luis Obispo.

The utility, Pacific Gas and Electric, is seeking a 20-year license from the Nuclear Regulatory <http://topics.nytimes.com/top/reference/timestopics/organizations/n/nuclear

_regulatory_commission/index.html?inline=nyt-org> Commission to build and operate a spent-fuel storage installation there. Responding to a lawsuit brought by a local antinuclear group, San Luis Obispo Mothers for Peace, the United States Court of Appeals for the Ninth Circuit ruled that before granting the license, the nuclear agency had to take account of the potential environmental risk of terrorism.

The utility's appeal, Pacific Gas and Electric v. San Luis Obispo Mothers for Peace, No. 06-466, argued that the ruling was a misinterpretation of federal environmental law that would place unnecessary burdens on license applicants.

The government itself did not file a Supreme Court appeal, however. Solicitor General Paul D. Clement told the court in his brief that while the decision was incorrect and potentially "disruptive," it was too soon to know how disruptive it would prove to be in practice. While the government would support the utility if the justices nonetheless wanted to accept the case, the brief said, the appeal "does not clearly satisfy the court's criteria" for taking up appeals and should be denied.

Fernanda Santos contributed reporting from White Plains.