“[T]he city’s plans do not pass the smell test.”

The preceding post on the wretched Freeport case, reminds us that something should be said about the project that gave rise to this civic calamity. Originally, the owners sued in federal court, evidently in the naive belief that federal courts would uphold the federal Constitution — which they frequently tell us, is their cherished function. Alas, this was eminent domain where the “public use” clause of the Fifth Amendment has been obliterated by the very courts that are sworn to uphold it. And so, the owners lost at the trial court level by summary judgment. But the federal judge in question was evidently an intellectually honest man, so he had something to say about the prevailing situation. You could say that his Lordship held his nose as he ruled for the city. It’s probably best if we simply quote him (W. Seafood v. Freeport, 346 F.Supp. 892, 901 (D.C.S.D.Tex. 2004), citations omitted):

“This case involves a municipality’s efforts to take, through eminent domain, one private party’s property and transfer it to another private party to promote the public interest in a healthy local economy. These circumstances present stark and startling evidence of the potential for governmental interference with individual property rights….4

4 The Court sympathizes with Plaintiff’s bewilderment at its situation. Indeed, its strongest argument may be that the City’s plans do not pass the smell test. But while engaged in constitutional interpretation, the Court must apply the law as the Supreme Court interprets it, regardless of its subjective sympathies.”

So what happened in the end? Was that “public interest” served? Don’t be silly. Like so many other ambitious redevelopment projects, this one did not work out. We are informed that after the U.S. Court of Appeals for the 5th Circuit remanded the matter with instructions for the District Court to abstain (202 Fed.Appx. 670), the trial court abstained (2007 U.S. Dist. Lexis 60189) in order to allow Texas state court to consider new state legislation limiting such takings, that was passed by the Texas legislature in the meantime. The matter then wound up in state court which ruled against the city (Freeport Economic Development v. Western Seafood Co., Brazos County No. 1032664 (2007)).  Eventually, the Texas courts awarded Western Seafood attorneys fees ( Brazos Co. Water Control & Improvement Dist. No. 1 v. Salvaggio, 698 S.W.2d
173  (Tex.App. 1985 ). So after all this sturm und drang, the subject property was not taken.

That leaves the question of what did this outrage cost the taxpayers? We will try to find out.

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