Affordable Housing Institute : US

Last Thursday evening, Jerold S. Kayden, co-chair of the Harvard Graduate School of Design’s Department of Urban Planning and Design, after an introduction by Professor Rick Peiser (head of the GSD’s Real Estate Academic Initiative), gave a fascinating and cogently argued hour-plus talk on eminent domain for economic development (ED4ED) as seen through the lens of the Supreme Court’s 5-4 upholding of ED4ED in Kelo v. New London.

Professor Jerold Kayden of Harvard’s GSD

Here, with due allowance for my hasty transcription and subsequent scrawl deciphering, are Professor Kayden’s comments in green, with my own sprinkled in:

Eminent domain principles go back to Hugo Grotius in the Dutch seventeenth century and there is a restriction on the sovereign’s ability to take property in Magna Carta.

True enough, and the whole movement of the jurisprudence, across centuries and across boundaries, has been to bind the sovereign and limit the sovereign’s ability to run roughshod over private rights. Magna Carta puts it thus:

No Freeman shall be taken, or imprisoned, or be disseized of his Freehold [property ownership — Ed.], or liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his peers, or by the Law of the Land.”

– Magna Carta

Look, I’m okay with all this rule of law stuff, but I can’t have urban development powers compromised!

I love that “dis-seized.”

Eminent domain is bounded by both legislative and Constitutional authority. A state can give more protection than the Constitution offers.

In reviewing eminent domain cases, the courts distinguish between — and these are my terms, you won’t find them in the literature — reasons of condition precedent (such as blight) versus condition subsequent (such as a new highway).

This is a very helpful distinction. Courts have used the police power to take property both to cure a societal ill (this is the basis for the line of urban renewal cases starting with Berman) and to establish a societal benefit (new highways being the classic example). The courts seem in some non-numerical way to be trying to find a very large gap in public value between prior use and improved use. One senses the justices groping to satisfy themselves that the public interest is large enough to override the private one.

For urban planners, there is a value question: when does the individual right trump economic development? Does money pay for all? Identify, history, community are lost. Community is a property right or a civil right, and this has been found legally. Is there a ‘demoralization cost’ beyond pareto optimality?

Now, at this point the decibel level of your screaming is lower than my headphones can suppress ….

For more than half a century (ever since Berman in 1954, a 9-0 wipeout), serving the public interest has long been held a valid use of ED4ED. Professor Kayden quoted Justice Douglas’s Berman opinion:

Public safety, public health, morality, peace and quiet, law and order — these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power, and do not delimit it. See Noble State Bank v. Haskell, 219 U.S. 104, 111. Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, [p33] which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.

French banlieues, anyone?

We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. See Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.

As Professor Kayden correctly pointed out, Justice Douglas was doing more here than penning a manifesto. [No one ever accused Justice Douglas of lacking in legal imagination, as when in Roe v. Wade he found that a right to privacy ‘emanates from the penumbra of the Constitution.’] Here he was grounding the decision in an expanded concept of ‘public health’ so as to argue that blight goes beyond the optical:

In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way. [”Nor shall private property be taken for public use without just compensation,” the ‘takings’ clause. – Ed.]

Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. See Luxton v. North River Bridge Co., 153 U.S. 525, 529-530; United States v. Gettysburg Electric R. Co., 160 U.S. 668, 679. Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine.

Like the Kelo court, Justice Douglas asserted that public use could be satisfied through private parties:

Here, one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress, and Congress alone, to determine once the public purpose has been established. See Luxton v. North River Bridge Co., supra; cf. Highland v. Russell Car Co., 279 U.S. 253. The public end may be as well or better served through an [p34] agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. What we have said also disposes of any contention concerning the fact that certain property owners in the area may be permitted to repurchase their properties for redevelopment in harmony with the over-all plan. That, too, is a legitimate means which Congress and its agencies may adopt, if they choose.

So, Professor Kayden made clear, the Kelo court was simply following the Berman decision; here again Douglas’ opinion address the Kelo fact pattern that Ms. Kelo and her neighbors were living in perfectly acceptable homes that in no way could be considered blighted:

In the present case [Berman, 1954 — Ed.], Congress and its authorized agencies attack the problem of the blighted parts of the community on an area, rather than on a structure-by-structure, basis. That, too, is opposed by appellants. They maintain that, since their building does not imperil health or safety nor contribute to the making of a slum or a blighted area, it cannot be swept into a redevelopment plan by the mere dictum of the Planning Commission or the Commissioners. The particular uses to be made of the land in the project were determined with regard to the needs of the particular community. The experts concluded that, if the community were to be healthy, if it were not to revert again to a blighted or slum area, as though possessed of a congenital disease, the area must be planned as a whole. It was not enough, they believed, to remove existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums — the overcrowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the lack of light and air, the presence of outmoded street patterns. It was believed that the piecemeal approach, the removal of individual structures that were offensive, would be only a palliative. The entire area needed redesigning so that a balanced, integrated plan could be developed for the region, including not only new homes, [p35] but also schools, churches, parks, streets, and shopping centers. In this way, it was hoped that the cycle of decay of the area could be controlled, and the birth of future slums prevented. Cf. Gohld Realty Co. v. Hartford, 141 Conn. 135, 141-144, 104 A.2d 365, 368-370; Hunter v. Redevelopment Authority, 195 Va. 326, 338-339, 78 S.E.2d 893, 900-901. Such diversification in future use is plainly relevant to the maintenance of the desired housing standards, and therefore within congressional power.

Finally, Professor Kayden then quoted Douglas in Berman on deferring to legislative determination:

Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation.

Given that it basically affirmed the due-process principles of Berman, Professor Kayden concluded that:

Kelo was incontrovertibly, dead-on right.

Then he smiled wryly, for as he proceeded to relate, Kelo kicked off an astonishing wave of public response.

[Continue to Part 2]

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