Newsreal Archives/Critic' Corners
Following is a letter to the Editor of the Courier Newspaper, Mr. Mick Maloney from Tina Zanetti.
To the Editor:
Re: “Neighbours want moving company to move on”
I read with great interest your Sept. 22 article ‘Neighbours want moving company to move on’ and I wish to advise that those in the department of business licence who issue licences are not in the least interested in enforcing such by-law.
I should know since in year 2005 I initiated a private prosecution against four different companies working in the city of Vancouver in roofing apartments without a business licence or proper licence as required by the Licence Bylaw No. 4450 section 3. (1).
I took the route of private prosecution because those in government and city staff continually fail to enforce some very important by-laws --- Vancouver having thousands of leaking condos, and the roof being an essential part of the building envelope---
Judge Kitchen of the provincial court approved the charges and ordered the Justice of the Peace at the Robson by-law court to issue process on all four different (4) companies under s. 26 of the Offence Act.
Whereas the City Prosecutor Ellen Gerber did not believe it to be important to ticket those who are violating the City By-law, one contractor pleaded guilty before the court and paid a fine.
Soon thereafter, after much effort on my part and others who have assisted me in bringing the matter to justice, the City prosecutor Ellen Gerber and Regional Crown Attorney Terrence Schultes decided without any investigation of any kind, to intervene by staying the charges against all three "roofing" construction companies, claiming it was not in the public interest to ticket "roofers" working without a business licence or proper licence.
The matter was then brought before the Supreme Court of BC for a review and the presiding judge, Associate Chief Justice Patrick Dohm, discounted the value of business licencing and regulations for the construction roofing industry.
Thus, in summary, I have learned that the municipality of Vancouver and the provincial government together enforce by-laws only when it suits their purposes.
For example, Kim Capri, one of the brand new City Councilors, who apparently is a proponent of the Broken Windows theory, as argued in the book Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities by criminologists George L. Kelling and Catherine Coles, believes that the idea of arresting jaywalkers, street kids and helmetless bikers will bring law and order to the city.
Bringing law and order in a city and stop the broken glass theory is for those in positions of authority, like our city prosecutor, Mayor Sam Sullivan, the Attorney General of British Columbia, and ultimately our Judiciary to apply the law and city by-law has written.
In the case of David Salter and other residents of 700 and 800 block of East 10th Avenue, they may not be able to have any protection, if city councilors decide not to suspend A.J.K's business licence or revoke its licence for the remainder of the year, due to the recent B.C. Supreme Court decision, wherein Justice Richard Goepel has ruled that residents do not have the right to appeal to the Board of Variance if they object to city planning decisions about neighbouring properties.
The Supreme Court of B.C. namely Justice Goepel seems to have missed the point that by-laws commonly require that the developer give notice to his neighbours of any application for development so neighbours can give their support or make objections. This decision would also apply to any other bylaws including business licence by-law wherein a swingers club for example could open its doors in a residential neighbourhood, and the city would look the other way even though it would be a by-law violation simply because, amongst other things, it brings in revenue to the city, at the detriment of the community.
Basically, the government of the day is shutting down the voice of the people at an alarming rate.
The following is another story emailed from RON BRANSON, the publisher of Jail4judges' website, wherein 9 residents of New London, Connecticut, found out a few years ago, they also had no voice in the decision making.
The little democracy left is taken away so very fast that those who believe they still have "rights" will sooner or later find out otherwise:
"A whole greater than the sum of its parts"?
"[R]esolve...not on a piecemeal basis, but... in light of the [whole]."?
Here again we see the High Court, the ultimate decision-making body in the nation, with its "greater good" philosophy demonstrating its communistic and socialistic --and certainly unAmerican-- logic being foisted upon the American People.
Throughout the opinion, government is referred to as "the sovereign" and the individual considered as "piecemeal."
"...[T]he entire people of the state are directly interested in having the future developments unobstructed by the obstinate action of any individual or individuals." (p.9 n.8). Is not "the entire people of the state" made up of "individuals"?
A good analogy is:
The Court considers only the entire brick building as sacrosanct without regard to the individual bricks that compose the building, i.e., it is the brick building, not bricks, that is important. The Court would embrace the city's plan of taking out Brick #1, Brick #5, Brick #12, Brick #27, etc. and expect the integrity of the building to be improved --better than ever--after the removal of certain "unwanted" bricks-- even bricks in good condition, not cracked or broken, but yet not wanted by the city.
Is "the entire people of the state" improved after certain individuals have been deprived of their homes and displaced?
No amount of compensation can replace the sentimental and emotional value that individuals hold for their homes and property that they are forced to give up, some after decades of ownership and possession.
Quoting Justice O'Connor, dissenting:
"Petitioners are nine resident or investment owners of 15 homes in the Fort Trumbull neighborhood of New London, Connecticut. Petitioner Wilhelmina Dery, for example, lives in a house on Walbach Street that has been in her family for over 100 years. She was born in the house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946. Their son lives next door with his family in the house he received as a wedding gift, and joins his parents in this suit. ..." [emphasis added].
Continuing with Justice O'Connor:
"Petitioners own properties in two of the plan's seven parcels-- Parcel 3 and Parcel 4A. Under the plan, Parcel 3 is slated for the construction of research and office space as a market develops for such space. It will also retain the existing Italian Dramatic Club (a private cultural organization) though the homes of three plaintiffs in that parcel are to be demolished. Parcel 4A is slated, mysteriously, for "park support." ... At oral argument, counsel for respondents conceded the vagueness of this proposed use, and offered that the parcel might eventually be used for parking." [emphasis added]
Justice O'Connor further:
"When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, 'that no word was unnecessarily used, or needlessly added.' Wright v. United States, 302 U.S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment's language to impose two distinct conditions on the exercise of eminent domain: 'the taking must be for a "public use" and "just compensation" must be paid to the owner.' Brown v. Legal Foundation of Wash., 538 U.S. 216, 231-232 (2003)."
"These two limitations serve to protect 'the security of Property,' which Alexander Hamilton described to the Philadelphia Convention as one of the 'great ob[jects] of Gov[ernment].' 1 Records of the Federal Convention of 1787, p.302 (M. Farrand ed. 1934). Together they ensure stable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government's eminent domain power-- particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority's will."
[continuing with J. O'Connor further]:
"The public use requirement ... imposes a more basic limitation, circumscribing the very scope of the eminent domain power. Government may compel an individual to forfeit her property for the public's use, [emphasis theirs] but not for the benefit of another private person. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 336 (2002) ('The concepts of "fairness and justice" ... underlie the Takings Clause')."
Regarding the sanctity of property ownership, Justice Thomas, diss. wrote:
"Blackstone rejected the idea that private property could be taken solely for purposes of any public benefit. 'So great ... is the regard of the law for private property,' he explained, 'that it will not authorize the least violation of it; no, not even for the general good of the whole community.' 1 Blackstone Commentaries on the Laws of England 135 (1765). He continued: 'If a new road ... were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without the consent of the owner of the land.' Ibid. ... The Public Use Clause, in short, embodied the Framers' understanding that property is a natural, fundamental right, prohibiting the government from 'tak[ing] property from A, and giv[ing] it to B.' " [citations omitted].
This decision is another split decision, 5-4 by Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer, with dissenting Justices O'Connor, Scalia, Thomas, and Chief Justice Rhenquist.
(O’Connor stepped down thereafter such decision and Rhenquist died a few years later of cancer)
The decision incorporates two basic phenomena:
(1) Interpreting the term "public use" as "public purpose." "This Court long ago rejected any literal requirement that condemned property be put into use for the general public. ... Not only was the 'use by the public' test difficult to administer ...but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, ...this Court... embraced the broader and more natural interpretation of public use as 'public purpose.' " (pp.8-9); and
(2) Giving deference to governmental decisions, i.e., "legislative judgments" and "the city's determination."
(a) Legislative judgments:
"[O]ur public use jurisdiction has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power." (pp.12-13). "Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch." (p.18).
(b) The city's determination:
"[The city's] determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference." (p.13) "Just as we decline to second-guess the City's considered judgments about the efficacy of its development plan, we also decline to second-guess the City's determinations as to what lands it needs to acquire in order to effectuate the project." (p.18).
Regarding the "public use" interpretation and legislative deference, Justice O'Connor, diss., wrote:
"Where is the line between 'public' and 'private' property use? We give considerable deference to legislatures' determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning. See Cincinnati v. Vester, 281 U.S. 439, 446 (1930) ('It is well established that ... the question [of]what is a public use is a judicial one')."
Justice Thomas, dissenting, wrote:
"Long ago, William Blackstone wrote that 'the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property.' 1 Commentaries on the Laws of England 134-135 (1765). ... The Framers embodied that principle in the Constitution, allowing the government to take property not for 'public necessity,' but instead for 'public use.' Amdt.5.
Defying this understanding, the Court replaces the Public Use Clause with a '[P]ublic [P]urpose' Clause, ante, at 9-10 (or perhaps the 'Diverse and Always Evolving Needs of Society' Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is 'legitimate' and the means 'not irrational,' ante, at 17 (internal quotation marks omitted).
This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'
¶ ... If such 'economic development' takings are for a 'public use,' any taking is, and the Court has erased the Public Use Clause from our Constitution,....
I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution,....
Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. ... [T]he Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. ..."
I will quote Justice O'Connor's concluding remarks:
"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. '[T]hat alone is a just government,' wrote James Madison, 'which impartially secures to every man, whatever is his own.' For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland, et al. eds. 1983)."
What an egregiously unconstitutional decision Kelo is. The 5-4 split shows how divisive it is as well. The envelope of tyranny gets pushed a little further toward the destruction of everything we hold dear. Yes, folks, and it isn't going to stop on its own. WE the People have to stop it!
"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence."
"[T]he City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. ...
[I]t is appropriate for us ... to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan."
--Justice Stevens, delivering the Opinion