Eminent domain: the wrong fight? (Part 2)
[This is a very large post in multiple parts — Ed.]
E. Balancing the cases for: a checklist
Well, as Bob Eubanks used to say on The Newlywed Game, “who’s right here?”
“Why do they call it ‘oral argument’?”
If we cannot directly define the space between property rights and land use regulation, perhaps we can use some representative cases as stakes in the ground to mark a rough perimeter:
- Dumping? We all produce garbage, and we are entirely happy to dump it anywhere out of sight, but it has to go somewhere, so collectively we have a duty to clean up after ourselves. And that sewage treatment plant also has to go somewhere.
- Zoning? Industrial uses shouldn’t be upwind from schools, right-light districts shouldn’t abut churches. Indeed, zoning adds value because it gives me, and others who are ready to invest their capital, confidence that if we improve the neighborhood, we will not have that value destroyed by a wanton use. So we need urban planning.
- Highways? We all benefit, they have to go somewhere, once selected they need to be sinuous and smooth, so some property must be taken. But a highway is an asphalt tourniquet that can strangle communities such as:
Hartford‘s Asylum Hill and I-84
New York City‘s Cross-Bronx Expressway
Birmingham Ring Road
The building of the Cross Bronx Expressway, which Robert Moses oversaw during the 1950s, has become Exhibit A in the failure of large-scale urban planning policies. “The path of the great road lay across 113 streets, avenues, and boulevards; sewer and water and utility mains numbering in the hundreds; one subway and three railroads, five elevated rapid transit lines, and seven other expressways or parkways, some of which were being built by Moses simultaneously,” wrote Robert Caro in his 1974 indictment of Moses, The Power Broker. Moses blasted through it all, displacing tens of thousands of middle-class people and creating an instant slum.
And of course, my home town’s Central Artery, which necessitated a modest little $13 billion correction known locally at the Big Dig (the most expensive construction project in history):
That sure looks like urban improvement to me!
So we have to have eminent domain – without it, highways would never be built.
· Compelling public interest? Absolute power corrupts absolutely, so we have to rein in our Bob Moses instincts, not use eminent domain like a club, and instead give voters a say in whether or where a highway goes.
Up to now, it’s all been fairly easy, but real life is more complex, in part because we have to make all these decisions on the fly, and we make them against an established community.
· Down-zoning? Down-zoning means removing a permissible use because government thought better of it later. Now we start slicing up neighbors’ motivations. If I have already developed my property as much as I wish to, then I am safe – my non-conforming use will be grandfathered. But you, who merely planned to develop, who may in fact have bought the property with investment-backed expectations to develop, am SOL. So while one can easily imagine cases where down-zoning is essential, it is very difficult to write a rule as to who decides. Or we can go to the ultimate form of down-zoning ….
· Urban renewal? Ever since the seventeenth century, municipal governments have loved clearing out squalid slums and replacing them with stylish boulevards (Edinburgh’s New Town, Paris with Haussmann, Boston’s West End), although sometimes they did so only after a devastating fire (London 1665). After all, it’s good for benighted hovel-dwellers to have airy new high-rise government public housing estates, isn’t it? Oh, but if we’re not careful, we wipe out whole ethnic communities, displacing people who refuse to think of themselves as ‘those people.’
What’s wrong with this picture?
Is this an improvement?
Doesn’t that look better?
Can you spot the Vulcan? He’s in there!
(And yes, he grew up in Boston’s West End)
F. When is taking justified? ‘Public use’
When it comes to taking property, whether that property is intangible or tangible, what the owner loses is more than just economic value, but a psychological, one might almost say spiritual, right of use and quiet enjoyment. Property does not exist because the state has granted it to us; the state exists because we the people have established it, and the rights we have not given it, we keep – including our property rights.
The Fifth Amendment imposes a two-part test:
nor shall private property be taken  for public use,  without just compensation.
Thus, if eminent domain takes property, any property, then not only must government pay just compensation, it must also have a compelling public interest — and this, like all such ringing judicial phrases, is in the eye of the beholder.
Somewhere in his writings, libertarian hawk science fiction author (and prolific amateur political theorist) Robert Heinlein once asked, what is it moral for a government to do that it is immoral for an individual to do? That’s the key question in Part 1:
What is ‘public use’? Is urban renewal ‘public use’?
Some briefs notwithstanding, I think eminent domain is critical in urban renewal. Without eminent domain, government might never assemble the parcels for large-scale change, or in doing so, it would grant minority nuisance premium and hence encourage recalcitrance. That’s bad urban policy.
Eminent-domain-type land-use powers also matter greatly in affordable housing. It is an ironic paradox that if you try to put a new affordable property into a community, the community fights you; but if you then return some years later and try to take that same affordable property to market, the community fights you again! Without land-use powers such as inclusionary zoning, government might never be able to force particular localities to create the affordable housing that benefits everyone, including those same localities.
In the context of urban redevelopment, what might a ‘compelling public interest’ mean?
I’m not going to take you through the highways and bylaws of this jurisprudence; I don’t know them very well, and most of the cases show that judges went into law because they had trouble with math and financial principles.
Rather, let’s make the public-policy case to meet the high standard. Compelling public interest means satisfying all of these conditions:
- The decision must be disinterested. The government seeking to take cannot also be the one granting power to take.
- The decision must be principled. No ‘ad hoc’ rulemaking to apply to the case at bar.
- The development must deliver ecosystemic benefit. Government’s action must improve not just the property taken, nor even its immediate abutters, but the entire the community ecosystem — the whole metropolitan area.
- Benefits must be credibly demonstrable, not wishful thinking masquerading as a spiffy consultant’s scenario.
- Benefits must be a large multiple of costs. If the case is not almost overwhelming, it cannot be compelling.
- Government must show there was no good non-taking alternative of tackling the same problem. (The “why me?” defense.)
- Negotiations must be exhausted. Government must make a good-faith or good-faith-plus effort to come to terms with dissident property owners. Otherwise it’s too easy to dismiss the stakeholder.
- Government must have ‘clean hands’. Government must show that it has no self-interested motives. (Higher real estate taxes, anyone?)
In all this, the burden of proof is on the government, which seeks to take, not the citizen, who resists being taken.
G. Takings in New London: Susette Kelo
Comes now petitioner Susette Kelo, whom we mentioned in an earlier post. Ms. Kelo and several of her neighbors own old houses in Fort Trumbull, a large now-closed submarine base in the City of New London,
On the River Thames, rhymes with ‘dames’
The fickle finger of fate points to you
part of which has been converted into a state park:
Once the home of a major whaling industry, New London has experienced decades of urban decline, although not necessarily blight (which is a magic word in eminent domain) decided to jump-start its redevelopment. First they attracted Pfizer, a global pharmaceutical company, to relocate its Global Research & Development headquarters to New London. Now the City wants to redevelop Fort Trumbull, adjacent to the Pfizer site, into a series of compatible uses:
The first phase, completed in mid-2001, featured $12 million of infrastructure work including two major roundabouts, one of which forms the entryway to the Pfizer Global Research & Development Facility. In addition to street improvements, infrastructure reconstruction in the Fort Trumbull area includes new water, sewer and underground utility lines; new sidewalks and streetlights; and an extensive landscaping program with new tree plantings to screen out the upgraded regional wastewater treatment facility. The City of New London