Affordable Housing Institute : US

[Continued from yesterday's Part 1.]

 

By: David A. Smith

 

As we saw yesterday, using as our text a protracted City Journal editorial essay by Nicole Gelinas, when eminent domain is used for economic development (ED4ED) with a private developer as the implementing party, the potential for mischief is simply enormous – because the law of economic gravity creates political pressure that disenfranchises the economically disadvantaged.

5. A subjective standard creates a power imbalance

 

When the state tries to crowbar a small property holder off his land, the contest is unequal, and the politically weaker are at an enormous disadvantage. 

 

Standing up for the politically weaker party: Justice Thomas

 

This is a civil-rights problem, both in its abstract sense and in racial or ethnic terms, because when power is unequal, it is normally the racially disadvantaged who lose, which is why Justice Thomas so articulately dissented in Kelo:

 

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.

 

Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages “those citizens with disproportionate influence and power in the political process, including large corporations and development firms” to victimize the weak. Ante, at 11 (O’Connor, J., dissenting).

 

“Citizens with disproportionate influence … can victimize the weak.”

 

Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development.

 

B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963:

 

63% of those whose race was known were nonwhite

56% of nonwhites and 38% of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.”

 

Id., at 28.

 

“The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse.”

 

Time and again, ED4ED has been used with the stated purpose of improving neighborhoods and cities – and along the way, as collateral damage, minority and lower-income neighborhoods are demolished.  The Poletown neighborhood of Detroit, for instance, was leveled to make way for a GM plant.  Robert Moses’ highways cut conveniently through blackening neighborhoods in Harlem.

 

Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28—29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989).

 

Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003).

 

Urban renewal came to be known as ‘Negro removal’

 

Over 97% of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U.S., at 30. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.

 

The same power dynamics are at work in the cases being contested today, such as the billion-dollar Brooklyn struggle over Atlantic Yards

 

Historic?  Blighted?  Or both?  You decide

 

When the state held public hearings in 2006 to decide whether to approve Atlantic Yards, hundreds of supplicants, hoping for a good job or a cheap apartment, easily drowned out the voices of people like Goldstein, who wanted nothing from the government except the right to keep their homes.

 

What’s not to love about ACORN?

 

In the twenty-first century, things are different because of the information revolution.  The combination of the Freedom Of Information Act and the internet has enabled citizen journalism, neutralizing the previous power imbalance of the media, to the point where Norman Oder, an individual with no platform other than a blog and no motivation other than a burning desire to uncover the truth, can out-investigate the (conflicted) New York Times with reporting worthy of a Pulitzer.  However, the playing field is still not level:

 

Another violation: the government responded poorly to property owners’ document requests under the state’s freedom of information law, hampering their right to mount a solid case. Such requests are particularly important in eminent-domain cases because New York property owners don’t enjoy the right to a trial with a discovery phase, but must go straight to appeals court—a seventies-era “reform” meant to speed up development projects.

 

6. ED4ED advocates can always procure a blight finding

 

Just as the condition of insanity has been diluted because it provides such a helpful criminal defense, so too has ‘blight’ become a currency so debased it can be minted more or less anywhere.

 

Papoon for President, he’s not insane

 

But wait, you say: people don’t buy half-million-dollar apartments in “substandard” or “unsanitary” neighborhoods. You’re right; that’s why the consultants had to stretch. In the 1930s, as Goldstein’s attorney, Matthew Brinckerhoff, pointed out, “substandard” and “unsanitary” meant “families and children dying from rampant fires and pestilence” in tuberculosis-ridden firetraps.

 

In 2006, by contrast, the UDC’s consultants found “substandard” conditions in isolated graffiti, cracked sidewalks, and “underutilization”—that is, when property owners weren’t using their land to generate the social and economic benefits that the government desired.

 

Forty years ago, Larry Niven in his Known Space stories imagined a world where organ transplants were easy and reliable, resulting in a market in organ-legging, and the death penalty for parking tickets.

 

Death penalty for parking tickets

 

Similar creativity has taken place, at least in court, with regard to what constitutes blight:

 

In New York, this creative definition of blight is the new central-planning model. Consultants have also cited “underutilization” in West Harlem, where the city’s Economic Development Corporation wants to take land from private owners and hand it to Columbia University for an expansion project.

 

If blight has come to mean under-utilization, it has come to mean absolutely nothing, since the group has never been formed that lacks a bottom quartile.

 

Says Norman Siegel, who represents the owners: “A private property owner has the right to determine the best productive use of his property. It’s not a right to be ceded to any government.”

 

There’s only one way to fight a specious finding of blight – get your own dueling finding of no-blight:

 

Blighted?  I’ve worked hard to become so

 

The Harlem owners were able to convince the lower court partly because they had commissioned their own “no-blight” study. “We said, ‘Let’s create our own record . . . as a counterweight,’ ” said Siegel. The owners also presented as evidence a government study, performed before Columbia showed interest in the land, that West Harlem was revitalizing itself.  

 

7. If it’s not blighted today, I can make it blighted tomorrow.  Blight, like financial weakness, can be a self-fulfilling prophecy:

 

And in Queens, the Bloomberg administration is preparing a similar argument to grab swaths of Willets Point, an area adjacent to Citi Field that’s populated with auto-repair shops. The city’s recent “request for qualifications” from would-be developers drew a sharp response from the people who owned the land: “We . . . hold the most significant qualification of all: we own the properties. We are motivated to improve and use our own properties, consistent with the American free market system.  We would have done so in spectacular fashion already, had the city upheld its end of the bargain by providing our neighborhood with essential services and infrastructure.”

 

The residents are agin it

 

One of my many definitions of a slum – the municipal definition – is a place where private investment has outrun public infrastructure.  As a result, if the city averts its eyes from a neighborhood, then it will become a slum regardless of what its denizens say or do. 

 

Instead, the city has done the opposite, letting streets disintegrate into ditches to bolster its blight finding.

 

A city’s failure to deliver infrastructure is a breach by a city of its obligations to its citizens, and if I were such a citizen, I would sue them.  The issue is hugely important in the global south, where municipalities grapple with proliferating slums.

 

The perversity is astonishing: rather than doing its own job of maintaining public infrastructure and public safety, the government wants to do the private sector’s job—and is going about it by starving that private sector of public resources.

 

A vacant lot, for example, now sprawls where the historic Ward Bakery warehouse was, until recently, a candidate for private-sector reinvestment. Today, Prospect Heights finally shows what the state and city governments want everyone to see: decay.  

 

If a neighborhood is going down, there’s an easy way to help it along: remove businesses and demolish buildings, leaving a deconstructed urban visage.

 

Blighted or not?

 

The decay, though, isn’t the work of callous markets that left the neighborhood to perish. It’s the work of a developer wielding state power to press property owners to sell their land “voluntarily.” It’s also the result of a half-decade’s worth of government-created uncertainty, which stopped genuine private investment in its tracks.

 

8. If cities are always messy, there is always a bottom quartile. Except for Lake Wobegon, where all the properties are above-average, cities by their nature have better and poorer neighborhoods, to say nothing of the challenge of evaluating which is which.

 

In Lake Wobegon, we have only appreciative neighborhoods

 

To cure yourself of the notion that the government can do better than free markets in producing economic vitality, stroll around Atlantic Yards. You’ll walk past three-story clapboard homes nestled next to elegantly corniced row houses—the supposedly blighted residences that the state plans to demolish. You’ll see the Spalding Building, a stately sporting-goods-factory-turned-condo-building that, thanks to Ratner and his government allies, has been slated for demolition and now stands empty. You’ll peer up at Goldstein’s nearly empty apartment house, scheduled to be condemned and destroyed.

 

And you’ll see how wrecking balls have already made the neighborhood gap-toothed.

 

Can we agree that’s blighted?

 

We had to blight the neighborhood in order to take it?

 

[Continued tomorrow in Part 3.]