Monday, February 28, 2005

Urban Renewal

Later today I will be driving past a large, unattractive cement building, owned by a national newspaper chain. That location of that building will seem peculiar - it is, after all, a relatively new building, but its location will be on the main road to downtown, where it is apparent that many shops and homes once stood. It also is the sort of building that one would expect to be in an industrial park, or at the outskirts of a town, not right at the edge of downtown.

It seems that this town had a brilliant idea some decades back that it would "renew" its downtown area. It set about acquiring a large tract of property, with the goal of clearing off the old homes and businesses and building a large shopping mall. After the land was acquired and cleared, somebody finally asked the important question - "If we build it, will they come?" Okay, so that wasn't the actual question - "Private projects of this type and magnitude don't break ground until they have their anchor tenants signed to leases. Do we even have any potential anchor tenants who have expressed interest, let alone any who have signed leases?" Perhaps you have anticipated the answer to that question.

So the city was left with an empty stretch of land, once occupied by homes and buildings, and a revitalization plan which was not commercially viable. The best offer they got from a private enterprise for the land was from the newspaper company, hence the cement behemoth.

In recent days there has been a lot of debate on a variety of law-related weblogs about eminent domain, sparked by a somewhat peripheral comment on The Volokh Conspiracy about textualism as an approach to constitutional interpretation. One of the more interesting comments that came up through Crime and Federalism, more in relation to eminent domain than in relation to textualism, is actually an older post by Timothy Sandefur, where he discusses changes in philosophy whereby public takings for a private purpose became somehow "acceptable". The Volokh Conspirators also point to a critical reply from A Stitch In Haste which in turn points to a discussion at Legal Affairs between two law professors. In any event, if you follow the web, you'll read more about the "Takings Clause" and eminent domain than you probably want to....

The debate at Legal Affairs includes the observation that "only Justice Scalia expressed any enthusiasm for [the] argument to limit 'public use' to actual use by the public." It also alludes to what can happen if you don't allow a private landowner to force a neighbor to permit construction of a road: "There are cases of acute holdout difficulties where the property owner has little or no subjective value to his scrub land, but wants to prevent a mine owner from getting his ore to the railroad." But I have to admit, I find Scalia's minority opinion to be compelling, and I have little sympathy for a person who buys a mine, digs shafts, extracts ore, and only then realizes that he doesn't own a road from his mine to the railroad. If the neighbor never wanted a road on his land, the presence of the mine shouldn't change his private property rights. If the neighbor doesn't mind the road, but wants a share of mine profits, the mine owner would have been well-served to secure an easement for the roadway before digging the mine. Either way, the mine owner enters the situation with his eyes open, takes a gamble, and should not expect the state to bail him out. Or, as the Michigan Supreme Court put it a few years ago when striking down Michigan's Private Roads Act:
We note that the act does not impose a limitation on land use that benefits the community as a whole. Instead, it gives one party an interest in land the party could not otherwise obtain. By eliminating the landowner's right to exclude others from his property, the act conveys an interest in private property from one private owner to another. The taking authorized by the act appears merely to be an attempt by a private entity to use the state's powers "to acquire what it could not get through arm's length negotiations with defendants."
Tolksdorf v Griffith, 464 Mich 1, 10; 626 NW2d 163 (2001).

The professors debate about the wisdom of New London, CT urban renewal plan, discuss such things as whether "fair compensation" should include compensation for an emotional attachment, mention how the government carved out some peculiar exceptions to its property acquisition plans, and discuss the limits of when one person's assumed "better use" (for property tax purposes) should trump another person's property rights. But at the end of the day, I think Scalia (and Sandefur) have it right; in Sandefur's words, "Prior substantive due process decisions took it for granted that, since it was not legitimate for an individual to steal property, so it was not legitimate for a group of people to order the state to steal property on their behalf."

Today's Washington Post assumes a different philosophy:
The takings clause was meant less to restrain government than to ensure that it pays fairly when it infringes upon private property. And while the public-use requirements forbid land seizures where no conceivable public purpose exists, that is not the case here. New London may have proceeded in a bullheaded fashion, and ideally voters can evict officeholders who behave that way. But New London is unquestionably a distressed city in need of economic development, and federal courts shouldn't be second-guessing the city's determination of how best to accomplish that very public goal.
I disagree that the existence of a "conceivable" public use should transform a governmental taking into a public use. But then, I'm going to be spending part of the day driving past an ugly cement reminder of a "conceivable" public use gang aft agley.


  1. I am surprised to find something that I agree with Scalia on, but based on your post, it looks like I have.

  2. What Hugo said--it's astonishing to see how smart Scalia can be on those occasions when he pulls his head out of his butt and remembers that he is a Constitutional scholar.

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