I’d Rather Not Have This Conversation
By
There are three ways the Parkside controversy can end, in this humble blogger’s estimation.
(1) Coleman builds Parkside on our public park, bringing this series of errors and intrigue to ruinous fruition.
(2) Buncombe County and Stewart Coleman come to some sort of agreement for Mr. Coleman to relinquish the park land.
(3) Either the City or County invokes condemnation, a legal means to effect Eminent Domain.
The subject of eminent domain is anathema to many, but unless the County demonstrates better negotiation skills, or Mr. Coleman suddenly comes to his senses, that’s where we’re headed. I’m going to be on the same learning curve as y’all, so be prepared to participate as we shape our understanding of what Eminent Domain is and how it works. Mistakes will be made.
Wiki: “Eminent domain…in common law legal systems is the inherent power of the state to seize a citizen’s private property, expropriate property, or rights in property with due monetary compensation, but without the owner’s consent. The property is taken either for government use or by delegation to third parties who will devote it to public or civic use or, in some cases, economic development.”
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The term “condemnation” is used to describe the formal act of the exercise of the power of eminent domain to transfer title to the property from its private owner to the government.
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“In the United States, the power of governments to take private real or personal property predates the Constitution, being a part of the common law inherited from England. This power was limited by the Fifth Amendment to the U.S. Constitution in 1791, which reads, “…nor shall private property be taken for public use, without just compensation”. The Fifth Amendment did not create the national government’s right to use the eminent domain power, it simply limited it to public use.”
So we’ve already learned that E.D. is a very old concept that our United States Constitution explicitly accepts and restricts. Further, invoking eminent domain in the case of restoring our public parkland is entirely in line with the letter and the spirit of “public use”. It’s easy to see how such a power could be abused by an acquisitive governmental body, so I’d hold that it ought to be used very sparingly and only when all other possibilities and courses of action have been exhausted.
Here in North Carolina, the law regarding eminent domain is very clear. Click here to see my source for all of the quotes to follow.
Article 1, 40A-3(b1): “For the public use or benefit, the governing body of each municipality or county shall possess the power of eminent domain and may acquire by purchase, gift or condemnation any property or interest therein, either inside or outside its boundaries, for the following purposes.”
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“(3) Establishing, enlarging, or improving parks, playgrounds, and other recreational facilities.”
According to my reading, it’s reasonable to assert that the County has already invoked eminent domain by offering to “purchase” the property as well as by offering a “gift” of a land swap. What they haven’t done is utilize condemnation. While section (3) does not specifically refer to reclaiming parkland mistakenly sold, it stands to reason that one can interpret the reacquisition as an establishment, enlargement, or improvement.
Regarding whether the County can use condemnation to acquire the privately sold Hayes and Hopson building in addition to reacquiring the park land, the law states:
“Article 1, 40A‑7. Acquisition of whole parcel or building.
(a) When the proposed project requires condemnation of only a portion of a parcel of land leaving a remainder of such shape, size or condition that it is of little value, a condemnor may acquire the entire parcel by purchase or condemnation. If the remainder is to be condemned the petition filed under the provisions of G.S. 40A‑20 or the complaint filed under the provisions of G.S. 40A‑41 shall include:
(1) A determination by the condemnor that a partial taking of the land would substantially destroy the economic value or utility of the remainder; or
(2) A determination by the condemnor that an economy in the expenditure of public funds will be promoted by taking the entire parcel; or
(3) A determination by the condemnor that the interest of the public will be best served by acquiring the entire parcel.”
I would argue that subsection (3) applies to our particular situation, but it’s arguable that the County ought to reacquire only that property they sold to Mr. Coleman. Condemnation of only the parcel sold by the County could save a great deal of taxpayer money while leaving Mr. Coleman with the H&H property on which to build something. On the other hand, condemnation of both properties would allow the government entity to use the Hayes and Hopson building or tract for the public interest.
Article 3 delineates the procedures a public body must employ in utilizing eminent domain. The government body has to give 30 days notice to the private landholder. When the government body files for condemnation proceedings they, among other things, must give, “A statement of the sum of money estimated by the condemnor to be just compensation for the taking.”
So if the County estimated the land is worth $1.5 million, they’d say so. “The filing of the complaint shall be accompanied by the deposit to the use of the owner of the sum of money estimated by the condemnor to be just compensation for the taking.” In otherwords, when the County files, they would need to have a check ready for the landholder at that time.
The private landholder then has 120 days to respond.
The landholder can opt to have “commissioners” determine the value of the land, or he can leave it to the court:
40A-48: “the clerk shall appoint three competent, disinterested persons residing in the county to serve as commissioners. The commissioners shall be sworn and shall go upon the land to appraise the compensation for the property taken and report their findings to the court within a time certain. Each commissioner shall be a person who has no right, title, or interest in or to the property being condemned, is not related within the third degree to the owner or to the spouse of the owner, is not an officer, employee, or agent of the condemnor, and is disinterested in the rights of the parties in every way.”
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“if no request has been made for the appointment of commissioners within the time permitted by G.S. 40A‑48(a), the cause shall be transferred to the civil issue docket for trial as to the issue of just compensation”
Article 4 outlines the measures used to determine “just compensation” to the landholder.
40A-63: “…reflect the value of the property immediately prior to the filing of the petition”
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40A-65: “a decrease in value before the date of valuation which is caused by physical deterioration of the property within the reasonable control of the property owner, and by his unjustified neglect, may be considered in determining value.”
So in determining the value of the parcel(s), either the valuation commissioners or the judge would figure it from the date that the government body filed for condemnation. If, however, while the condemnation is underway, the landholder chooses to cut down any trees or knock down any buildings, those actions may decrease the value.
I sincerely hope all you Hooligans, especially those of you with legal heads on your shapely shoulders, will have a look at the law and give us your take in the comments. We’re likely to be embroiled in a countywide debate over condemnation for the foreseeable future, so it’ll be good for you to know your stuff. If you work in City or County government, be sure to pass along the link to the law to your colleagues. And if you’re a candidate for Buncombe County Commission, be prepared to answer the question, “Do you support condemnation to end the Parkside controversy?”
I have a feeling this is going to be exhausting.
43 Comments
August 8th, 2008 at 10:04 am
Eminent domain is in the Constitution. It was used unconstitutionally in New London, CT, even though the Supreme Court thought it was perfectly legitimate to give it to the whims of Pfizer.
In the case of Parkside, I think eminent domain is totally legitimate as it would be for the purpose of public use in the form of a park.
Coleman needs to step up to the plate and prove that he is not a spoiled brat and sell it back.
The county needs to pay him $600,000 to compensate him for their incompetence in this matter.
If Coleman wants to build a building on the remaining land, he should be free to do so.
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August 8th, 2008 at 10:19 am
Do you really think there is the will to do this at either city or county level?
I don’t see it.
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August 8th, 2008 at 11:45 am
Yuck. I really hope it doesn’t come to an eminent domain fight. Messy, messy, messy.
On the other hand, if we want to have a city worth living in – it’s incumbant on all of us to learn stuff like this.
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August 8th, 2008 at 2:34 pm
The driving force on this issue, like many, is there is zero leadership on either one of these boards. There is no cooperation between the two boards to find a resolution that they can stand together on. As I have said in the past, there will not be any positive resolution to this from either the county commission or city council. It will be a third party law suite that will settle this one way or another.
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August 8th, 2008 at 3:13 pm
I would say that there’s no lack of leadership in Asheville City or Buncombe County government. It’s just that all the “leadership” comes from staff, and members of the council and commission use the staff to cover their lack of courage and vision.
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August 8th, 2008 at 4:09 pm
Doug Gibson says:
One reason I advocate limited government is related to this. No elected official can be aware of everything going on in a government that is going wildly in a hundred directions at the same time. Local government is so big and so intrusive that it zones to protect property values and then tries to take money from its citizens to provide affordable housing. The managers are necessary but the system has evolved (with the approval of the General Assembly) to a point where the elected officials can scapegoat the managers or vice versa and there is no accountability.
Heads should roll regarding Parkside. The voters should vote accordingly and the new council should immediately fire the county manager. So far, not one person on this blog has been willing to say this. Do they fear for their lives? Do they fear for their politics?
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August 8th, 2008 at 4:56 pm
Immediately fire the County Manager!
There. Now it’s said.
There’s only so many fish that fit in my fry pan, Clarence.
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August 8th, 2008 at 5:12 pm
Hey Gordon, I don’t know if anyone noticed this, but on the Xpress boards the poster called “Tigerswede” refers to Lindsey Simerley (sp?) as “Mr.” he even goes out of his way to capitalize it.
Isn’t that just weird homophobic baiting.
What an asshole.
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August 8th, 2008 at 5:15 pm
Tigerswede is connected to the Coleman family somehow. He never comes out and says how. He’s been their number one online defender (and attacker).
It could be that Tigerswede has some sexuality issues, but then again, a moderator at a City Council candidate forum called Lindsey “mr.” for the duration of the event, evidently unaware of her gender.
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August 8th, 2008 at 5:53 pm
MRS. Bugg?
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August 8th, 2008 at 6:09 pm
Gordon says:
I like it much more when we agree, than when we don’t.
Have a very good weekend!
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August 8th, 2008 at 6:30 pm
Lou Bissette should be disbarred! There! I said it!
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August 8th, 2008 at 6:33 pm
“Voyager” is the weakest of the Star Trek series! HA HA HA! This is great!
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August 8th, 2008 at 7:03 pm
La Dolce Vita was far superior to 8 1/2.
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August 8th, 2008 at 8:29 pm
Every Picture Tells A Story is soooo overrated!
And as for eminent domain, this is exactly what it’s for. Eminent domain got a bad name in recent years because of cities taking someone’s land to give to a mall developer, for instance. Or when eminent domain was used to take a farm and give it to the Texas Rangers for pennies on the dollar so they could build their new ballpark, while Dubya was on board.
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August 8th, 2008 at 8:31 pm
Fellini should be fired! Ha!
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August 8th, 2008 at 8:55 pm
What about “Enterprise”?
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August 8th, 2008 at 9:03 pm
In the absence of an immediate injunction, I support the exercise of eminent domain in this case. And that is provided that the land sale was illegal.
If so, the government screwed up and the government must provide a remedy. Time is of the essence. This is what injunctions are for.
The court will hear the case on Aug 25th. Coleman is applying for permits now to begin demolition. His counsel may be advising him that he is likely to prevail in court and he should begin issuing notices (which he has begun to do). We may yet see an injunction coming out of the court on the 25th.
The city should join the suit and call for the injunction (which is already part of the suit). The city should also prepare to exercise eminent domain for the purpose of restoring the parkland to its original condition.
The developer has voluntarily risked capital. This is what entrepreneurs do. Sometimes they win and sometimes they lose. In this case, he stands to lose his shirt.
And he has demonstrated hostility to any reasonable resolution that would respect the intent of the original property owner. In which case, he should lose his shirt — and much else besides.
As a libertarian, I oppose the land deal as a violation of private property rights and the right to freely contract and as a violation of the proper function of government, which is the protection of individual rights.
As it stands, the government is the perpetrator and must now act to repair its misdeeds.
The best remedy at this time, given the circumstances as we know them today, is eminent domain.
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August 8th, 2008 at 9:17 pm
Everyone who thinks eminent domain is called for – this is the time to write a letter to the editor saying so:
http://www.citizen-times.com/apps/pbcs.dll/article?AID=999970305038
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August 8th, 2008 at 10:57 pm
No it’s not. You folks are blinded by your emotions on this matter.
The amendment isn’t a fix for when government fucks up, it’s for use when there is an actual use for the property that benefits the community as a whole. No offense, but looking at it objectively, it’s a tiny parcel of property and a fucking tree.
I completely agree with everyone that a condo on this site is a travesty at best. But when it comes down to it, if that property was moved back a bit and he wanted to build a condo there, there would be zero merit for any objection.
ED is a black hole of litigation that the County and City, not to mention the taxpayers, would regret in this particular situation.
By the way, it’s your blog, but to play silly games with Tigerswede’s posts is a bit childish.
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August 8th, 2008 at 11:41 pm
Bob,
The building, as rendered will be in front of the City Hall. I mean, right in front of it. If he moves it forward thirty feet as threatened, it’ll be roughly halfway across the front of City Hall. The park will be diminished, and we’ll have an unwanted behemoth on our public space.
If he wants to move it off the park, then whatever. But there’s public space, and we either value that or we don’t. I value it. The community, as evidenced by the widespread opposition, values it. The “public use” outlined in the law clearly makes room for just this kind of application.
ED can be a black hole, to be sure. That’s why it sucks we’re having this conversation, that the government and the developer can’t just make this thing right. But here we are. We can forfeit the public space for fear of the litigious black hole, or we value it and do what’s necessary to protect it.
As for Tigerswede? Jst hvng bt f fn.
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August 9th, 2008 at 12:21 am
Gordon,
The “public use†outlined in the law clearly makes room for just this kind of application.
You might be right, technically and legally. We’ll see.
The main source for my pessimism is the fact that the local government is responsible for this debacle in the first place. I just can’t imagine the courts supporting ED considering government is the party responsible for the sale.
Of course, the outcome of the Pack lawsuit could greatly influence any further actions.
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August 9th, 2008 at 7:04 am
When I wrote “And as for eminent domain, this is exactly what it’s for,” I was insufficiently clear. Recast that: “And as for eminent domain, converting private property into a public asset is exactly what it is for: a way of securing land for a greater common good when other approaches are too expensive or otherwise impractical.”
Of course eminent domain can be abused and of course people can disagree over when it’s justified and when it’s not; however, eliminate it entirely and the public sector becomes impoverished and impotent. Schools don’t get built, roads don’t get built, etc.
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August 9th, 2008 at 7:59 am
Well said, Tom. That goes for both of your comments.
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August 9th, 2008 at 10:24 am
I do agree with that.
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August 9th, 2008 at 11:35 am
Good discussion on ED (we ARE talking about eminent domain, and not the other ‘ED’, right?)
One thing missing from this discussion lately is the background from 2006 – Coleman bought this property, with assistance from the County, specifically to interrupt the City’s plans to develop the Marjorie St. lot. (We know from their emails that the County staff was quietly planning to sell that park land for development without telling the City or the Conservancy). Among the priorities the City Council was discussing for Marjorie St. were the Performing Arts Center, integrating the Eagle/Market St. area into the revitalized city center, workforce housing, etc. All that would be shoved to the back of the line to make room for yet another luxury condo building, and the City Council rightly said, sorry, make a proposal like anyone else, and we’ll consider it. Coleman refused to wait, and then started threatening to build in the park, in FRONT of what the City thought was their parkfront property. Wherever you come down on the merits of those other priorities, you have to acknowledge that the City has the right to oversee development on THEIR land, and that the Parkside gambit has thrown a huge wrench into that effort. (This is a direct challenge to everyone who hopes that there will be more openness and accountability in local government; the old guard has attempted to derail the trend towards conducting development plans in public; they want deals to happen behind closed doors, with their cronies at the head of the line.)
Part of the argument for ED, for me at least, is that Coleman has stalled a vital public project (the development of the Marjorie St. lot, not to mention the impact on the park), and that his rights end where the public’s begin.
On a more serious topic, I thought Star Trek Enterprise was a very fine series, and it’s a drag the studio pulled the plug on it so abruptly.
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August 9th, 2008 at 11:43 am
Couldn’t the Pack lawsuit still bring about some sort of injunction?
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August 9th, 2008 at 12:37 pm
I asked the Pack family lawyer, Joe Ferikes, about an injunction some months ago. It didn’t sound like he was planning to ask for one. I don’t know if this has anything to do with the fact that he is basically doing this pro-bono; does anyone know if an injunction would cost a lot of money? If so, how can we help out? This very issue is why I was urging the City to join the Pack lawsuit long ago, to no result.
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August 9th, 2008 at 3:31 pm
In reading the original deed in which Pack conveys all this land to the county (see http://toto.lib.unca.edu/WNC_pack/deed.htm):
“… and that none of said land shall ever be sold or leased by said Board of County Commissioners or their successors and for reversion as aforesaid to said Geo. W. Pack and his heirs if ever a jail should be built thereon on any of said property, should be sold or leased as aforesaid. …”‘
I interpret that as meaning (caveat: I am not an attorney, I follow honest toil) that if SOME of the land is sold ALL of the land reverts to the Pack heirs.
Now, wouldn’t that be something?
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August 9th, 2008 at 6:41 pm
Well, a pricey condo building is a sort of inside-out jail, with the locks on the inside… as are gated communities.
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August 9th, 2008 at 9:16 pm
Anyone remember Michael Moore’s show “TV Nation”? One time he went to a suburb outside Chicago, well actually, it was entirely surrounded by Chicago. They had voted to turn the whole suburb into a gated community. Literally, they blocked all the roads in or out, & to get in, you had to be on a list that the security guards would check.
The neighboring areas of Chicago weren’t too happy about this, so Moore came in one day with this scheme: he zoomed up to one of the checkpoints in two vans; the camera crew jumped out of one, and out of the other jumped a big black guy with a portable barricade and a clipboard. He started stopping cars trying to LEAVE the gated community, and told them they had to be on the guest list if they wanted to enter the City of Chicago. Hilarious.
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August 9th, 2008 at 9:16 pm
Ralph, “I am not an attorney, I follow honest toil”.
Sounds like a delightfully famous quote from someone like Will Rogers or Mark Twain.
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August 9th, 2008 at 9:33 pm
Actually it sounds like Eugene Debs: “Gentlemen, we dare not make such an assault upon the dignity, the sacred rights, aye, the very life of honest toil!â€
Debs, that grand old Socialist, was mocking the leaders of the railworkers unions that were carrying the water for the rail bosses. Not long after this speech, he was thrown in prison for opposing WWI, and got almost 1,000,000 votes for President from his prison cell.
Why Ralph, are you a Socialist?
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August 9th, 2008 at 10:40 pm
Ahh, thanks.
Wasn’t there a story somewhere about Deb’s infidelity or his latent homosexuality that kept making the rounds?
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August 9th, 2008 at 11:35 pm
Sounds like a delightfully famous quote from someone like Will Rogers or Mark Twain.
Yes, it was a delightful quote from someone like Will Rogers or Mark Twain … me!
Yep.
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August 9th, 2008 at 11:51 pm
nice company you keep
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August 10th, 2008 at 8:35 am
“It could probably be shown by facts and figures that there is no distinctly American criminal class except Congress.”
–Mark Twain
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August 13th, 2008 at 6:58 am
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August 20th, 2008 at 12:43 pm
i recently sent the following via email to our City Council and County Commissioners, citing Tim Peck’s post here (comment #18):
dear City Council & County Commissioners,
i just wanted to chime in once again regarding this entire Parkside fiasco and say that i entirely support the notion of using Eminent Domain if no other solution can be reached (below my signature is a recent post on the subject by Tim Peck, which i support).
i realize people make mistakes. however, it is difficult for me to believe that no one involved — including the developer — had any clue whatsoever that this land which sold directly next to our City & County buildings was not available for sale.
it also makes little sense to me that the developer would not have not done a title search prior to purchasing such a property — or perhaps that was a “mistake” as well. for his reluctance to do what is right to correct the matter, especially in turning down a ridiculously outrageous offer by the County at the expense of the taxpayers, he should lose his shirt on this deal.
for the simple fact that there is ongoing litigation over this issue, it only stands to reason that any & all development on this property should be halted until there is an official judgement in the matter. if there is no other way, then by all means the City/County should exercise Eminent Domain immediately, if need be even after the developer begins construction and at his expense.
from my perspective, the entire fiasco stinks and is yet another example of government corruption and unaccountability. the County Manager and all others who should have known better should be held accountable for these actions.
whether or not the local voters will decide to stand up for liberty and justice as opposed to partisan politics, i won’t hold my breath!
bernard baruch carman
- Liberty Liaison, LP-Buncombe.org
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August 20th, 2008 at 12:46 pm
… to which only Dr. Carl Mumpower responded, somewhat surprisingly to me with the following statement, my reply to all follows:
On Aug 14, 2008, at 8:03 AM, DrMumpower@aol.com wrote:
Thank you for your note. Unfortunately, eminent domain creates a precedence for seizing private property that I would not support. With the decision also comes the responsibility for tax payers to pick up the tab.
Â
Carl M.
bbc replies:
yes, but in this case, the property is supposed to remain public in perpetuity.
eminent domain is to only be used for taking private property which because of location, use, etc., is needed for public use.  i don’t see how using eminent domain in this case would be transgressing its original intent for use.  it’s not as if it’s a ‘Kelo case’.
also, it’s better than the taxpayers picking up the tab for the county commissioner’s mistake and the developer’s obvious greed when he and everyone knows property rights have been transgressed!  the taxpayers should pay no more than what the developer paid in return of what is rightfully ours!
bottom line:  the land was not supposed to be sold, therefore, the sale should be null and void.  since there is litigation over this matter, ALL development should be halted immediately, and by any means!
the developer took a big risk figuring the slow turning and corrupt injustice system we have would work to his advantage. Â when all else fails, justice should be served, and if justice can only be served via eminent domain, then so be it!
hell, who knows what kind of corrupt deals went down between the developer, the county manager, and commissioners.  We the People do not trust government!
and regarding your mention of not supporting “seizing private property”, as far as i can tell this public property was seized, and now everyone seems to be cowing behind the defense of, “well, we just have to go through the legal procedure, etc…”
OK, we have a legal procedure called, “EMINENT DOMAIN”. Â if the commissioners & developers want to RIP OFF the taxpaying citizens of Buncombe County by TAKING OUR LAND, then We the People demand our city council to take it back through any legal means necessary!
it might be worth remembering as elected representatives in government:  as justice continues not to be served via our corrupt judicial & legislative system of government, eventually the People will take justice into their own hands.
in liberty,
bernard baruch carman
- Liberty Liaison, LP-Buncombe.org
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August 20th, 2008 at 12:59 pm
Great Post Bernard.
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August 20th, 2008 at 1:03 pm
Bernard,
I hope you’ll send it as a Letter To The Editor of the Xpress and the AC-T.
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August 20th, 2008 at 2:06 pm
thank you, both Bryan & Gordon. i just resent them as a two part Op-Ed to the Xpress for their consideration. if they are not interested, i’ll send them to AC-T.
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