By: David A. Smith
Nothin’ shakin’ on Shakedown Street. Used to be the heart of town.
– Grateful Dead, Shakedown Street
When it comes to flimsy cases to justify the state’s using judicial or police power to intimidate and punish private owners, I thought I’d seen everything – what with National City’s ‘lower-value use equals blight’ argument and Boston’s attempted public shaming of Wendy Rist, but I recently came one that floored even me, involving an award-winning affordable housing property accused of being ‘socially blighted’ because crimes happen in its vicinity.
Magnet for crime? The Bainbridge’s main entrance
Sources used in this post
Tax Credit Advisor (April, 2014); brown font
Kansas City Star, March 31, 2014: black font
KCTV, March 18, 2014; aquamarine font
KC Confidential, December 13, 2012: red font
The Pitch, May 26, 2005; violet font
As reported in the Kansas City Star (March 31, 2014):
Showdown on Armour Boulevard over ‘social liability’ of Bainbridge Apartments
Nobody claims the Bainbridge Apartments at 900 E. Armour Blvd. are a crime-free oasis in midtown Kansas City.
As far as I can tell, not having been to Kansas City in many years, nobody claims that midtown Kansas City is crime-free.
Higher crime in the center city
Not Eagle Point Companie of Maine, the firm that owns and manages the low-income housing development, and certainly not its middle-class neighbors in historic Hyde Park or other nearby pre-World War II apartment buildings recently restored on Armour.
Just as every city has some lower-income people, it also has some older and declining neighborhoods.
And in a showdown between the neighborhood, city officials, Eagle Point and the federal government, a city blight study has concluded that the Bainbridge is a “social liability.”
Actually, the more I read of the various documents (readily available on-line), including the Blight Study, the more astonished I became, and the more I came to believe that those pushing the ‘social blight’ designation, specifically the Planned Industrial Expansion Authority of Kansas City, have ulterior motives and have stirred up the community and some elected officials as camouflage.
Though it’s tempting to jump straight into the factual arguments – and most journalists understandably succumbed to the temptation – to me that’s a mistake because it focuses on the victim (the property and its owner and residents), not on the perpetrator (PIEA). That:
- Leaves unexamined the city’s rickety grounds for even offering ‘social blight’ as a basis for taking someone’s property.
- Focuses on scapegoating one property for the crime levels of a whole neighborhood.
For the moment, the scapegoating has worked – at least in the mainstream press:
If the city isn’t satisfied by Eagle Point’s response, the Kansas City Council could approve a move to ultimately condemn the property and seek new management.
‘Condemnation’ is a subcase of eminent domain where a property is found structurally unsound and ordered to be closed, then either renovated back to code or demolished. (A city-owned parking garage only a few blocks from our offices is closed from condemnation, and in 2006 Mayor Menino talked about having the BRA develop an eighty-story tower on the site – which hasn’t happened yet.)
Condemned, closed, and waiting – Winthrop Square parking garage
Despite throwing around eminent domain as if its members understood what it meant, the City council doesn’t seem to want anything as constructive or specific as new management (even if one concluded that ownership and management were the problem, which I conclude they are not) – it just wants to bash the owner (and through the owner, HUD) because bashing somebody feels good and looks politically tough for the voters.
But Eagle Point officials say their buildings have been unfairly targeted by the city blight study.
They’ve certainly been targeted.
City officials say they’re trying to force Eagle Point to respond to criticism about its management of the Bainbridge and two other nearby buildings, the Georgian Court at 400 E. Armour and Linda Vista at 1301 E. Armour.
Perhaps so, but they don’t level any criticisms at Eagle Point – and in fact, the blight study never even went on the property – it was conducted by a windshield inspection and then the blender-mixing of statistics to puree out a conclusion.
The blight study originally was to have been reviewed by the City Plan Commission in January, but has been postponed repeatedly and is now on hold.
It’s been postponed because it’s been challenged as improper and unsound both factually (addressed later on) and legally, and that is the starting point for our dismantlement of the case against The Bainbridge.
Your motives may have been pure, but your structure is unsound
1. Claiming ‘social blight’ as grounds for condemnation is legally dubious (at best)
Though any eminent domain law is subject to the Constitution and the Fifth Amendment’s takings clause, within that boundary different states can enact their own standards. In the case of Missouri, as reported in the Sterrett Urban LLC blight study (June 2, 2013; green font), the relevant statutory language is this:
Chapter 100 of the Missouri Revised Statutes entitled Industrial Development allows for the creation of “The Planned Industrial Expansion Authority” within a city and empowers the authority to submit general redevelopment plans to the city.
Chapter 100 was enacted in 1960 and the PIEA authority was added to it in 1967, a time when many American cities were in turmoil and violent decline, and St. Louis’s own Pruitt-Igoe was on its way to being a hellhole that had to be demolished.
Pruitt-Igoe, first building demolition, 1972
The times were desperate, and the epidemic was physical blight.
However, “an authority shall not prepare a plan for a project area unless the governing body of the city has declared, by resolution or ordinance, the area to be blighted, insanitary or undeveloped industrial area in need of industrial development” (RSMo ch. 100.400.1 (2)).
‘Blighted, unsanitary or undeveloped’ – those words connote physical decay, something readily observable and incontrovertible.
Blight in Detroit; neighborhoods disappearing
Chapter 100 provides the following definition for a blighted area:
“Blighted area”, an area which, by reason of the predominance of defective or inadequate street layout, insanitary or unsafe conditions, deterioration of site improvements, improper subdivision or obsolete platting, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, retards the provision of housing accommodations or constitutes an economic or social liability or a menace to the public health, safety, morals or welfare in its present condition and use; (RSMo ch. 100.310 (2)).
Look at the phrases: “Insanitary or unsafe conditions.” “Endanger life or property by fire and other causes.” The statute writers are describing what they saw in 1960 and 1967: cities falling physically apart.
Furniture store firebombed, Detroit, 1967
The term “social liability” is not defined by Missouri statute or in case law with the exception of Centene Plaza Redevelopment Corporation v. Mint Properties, et al., No. SC88487, 225 S.W.3d 431 (Supreme Court of Missouri. June 12, 2007). The opinion states the following as it relates to the definition of a social liability:
“Although the term “social liability” is not specifically defined by statute or in case law, the historical context suggests the definition of “social liability” focuses upon the health, safety, and welfare of the public. In that regard, it has been noted that the transformation of this country from primarily agricultural to a predominantly industrial society resulted in significant growth in the cities. Tax Increment Financing Com’n of Kansas City v. J.E. Dunn Const. Co., Inc., 781
S.W.2d 70, 78 (Mo. Banc 1989).
One result of this growth was blighted areas, which constituted a “menace injurious to the public health, safety, morals and welfare” of the residents. The blighted areas also presented economic concerns. The need to eliminate these conditions as a “breeding ground for juvenile delinquency, infant mortality, crime and disease,” prompted a move toward redevelopment.”
That’s urban blight
All of that language to me speaks of classical 1960s eminent domain – truly blighted cities, lawlessness overtaking citizenship – not some abstract ‘social blight’.
Does this look like blight to you? Bainbridge on Armour
[Continued tomorrow in Part 2.]