Eschaton ought to stick to things he knows about

His take on Kelo is among the most ill-informed of any I have run across:

Yes, this is a bad decision, but we must think of what the alternative might have been. I don't know what was in the hearts of the justices who ruled the way did, they may be fully on board this apparent belief in the unlimited power of eminent domain. This is not something I support. However, the alternative could've been a conservative written opinion severely limiting the power of eminent domain and the concept of public use, which would've eviscerated a truly necessary government power.

The "alternative" could've been bad. Sure. the alternative could have still allowed eminent domain but simply raised the burden of proof on local government when there is contemplation of property transfer to a third party. The long and short is that this sort of eminent domain is simply not needed from a planning perspective. Get it, Atrios? It's not needed.

Comments

[Dave Roberts]

David,

Can you explain briefly why it's not needed? Or point to a couple of your posts that make the argument? I'm just curious.

My own anti-Kelo rant is here:

http://gristmill.grist.org/story/2005/6/23/233913/751

[David Sucher]

Well from a legal POV I'd actually say that the burden should be on proponents to explain why condemnation is needed.

But as apractical matter by way of discussion I'd explain that it's not needed because it is either not need to spur development or it doesn't work. More often than not govt condemns and assembles property and it simply sits there for years and the reason for that is that land assembly is simply not a determinant of whether yoyu will have development but the scale of the developer.

Say you have a gentrifying neighborhood..why would you need to assemble property there? We capitalists are not stupid and we can see an opportunity. The small capitalists will develop where they can buy lots by the ones and two and the big ones where they can buy acreage. Why on earth should government care enough to force development? If for some reason you think that an area is appropriate for dramatic upzoning, fair enough but you can be assured that developers are able to assemble land on their own and do not need help.

Is that helping at all?

The crucial issue is that land assemblage is not an important factor in whether something is developed or not but only the scale of the developer. And there is no public interest in helping large versus small developers.

[Atrios]

The alternative option was essentially expressed in Kennedy's concurring opinion. However, the fact that Kennedy had to write it as a concurring a opinion while sign on with the majority demonstrates that there was no majority to rally behind a "sensible center."

One thing I do know quite a bit about is what hard core conservatives think about all government intrusion on private property, and how these kinds of sympathetic test cases are their way of trying to eviscerate any and all land use restrictions and any and all uses of the takings clause.

If the Court had sided with Kelo, Rehnquist would've been able to assign the opinion to who he chose. A Thomas or Scalia opinion could have been disastrous.

I think what's happening in New London is a travesty and I also think it's of questionable constitutionality. Would I have preferred what I imagine a kennedy-written opinion on this would have been like? Sure. But that apparently wasn't an option.

As for land assemblage not being an important factor...well, here I disagree. Some developments by their nature require scale, and assembling an appropriate amount of contiguous parcels is necessary to achieve that. There are economic (not political or moral necessarily) justifcations for why eminent domain might be "desirable." None of that should be interpreted to mean that I think that this has been anything but a land grab.

[David Sucher]

Atrios,
Your comments on the dynamics of tyhe Supreme Court are interesting indeed and cause for caution.

But as to the substance of economic developmenty, could you kindly offer an example of a project which
1. Depended on an assemblage,
and
2. After completion, one could look at it and say "Well done!"

The City of Vancouver, BC, a paragon to this Seattleite, of balancing the public interest with hard-core capitalism (I like them both), does not use eminent domain. (so I am told by a planner there.) So what emperical evidence is there that we actually need eminent domain? (Except to annoy Karl Rove? Which I agree is a very good thing.)

As you can tell, what I would like to see is discussion -- besides the legal theory -- of "Why do we need eminent domain in economic development? Does it really work?" etc etc

My own perspective on this is as a small property-owner/developer who has pioneered in redeveloping urban areas for the very best reason: I thought could make money there. To entice developers into investing capital (which ultimately is social capital) in risky ventures is not wise social policy.

[clew]

Me, I distrust the current administration so much that I expect this is part of a plan to use eminent domain *only* for private profit by large developers, *not* for public-good works.

[David Sucher]

I don't know. Clew, it seems to me that Democrats like to make deals with big capital, too, and don't really seem to care very much about disrupting people's lives etc etc.

[clew]

I don't think they're comparable in intent, actually; and I'm pretty sure they aren't comparable in *success*. Besides, it's the current admin. that has an all-private ideology.

[David Sucher]

But Clew, look at the vote on the Court! The Democrats are the statists in this case.

[clew]

Ooh, you're right. Ech; no-one I trust.

I did figure out where I contracted my opinion; it's an average of my memory of the politics and land policy of the various places I've lived, from Fla for the big-developer-rules attitude to Washington in its various parts. But of course this average has to mix together lots of correlated factors, even if my memory is perfect.

Anyhow; you're the small-scale developer, tell me if this makes sense:

Development is pretty local; if a developer has to cut a deal, it will be with local government;

therefore the less-private-profit-driven party would have to be perfect (or completely out of power) to have a record of no deals; this is unlikely, so balance-of-evidence is probably a fair standard of judgement;

on the whole, I think the places I've lived that had mostly Democratic local government were less likely to pursue large-scale land deals. Locally, e.g., King County and Kitsap County both propose big private projects, but it looks to me like more of Kitsap's projects pass. (This may be total wishful thinking on my part, considering the Seattle projects that infuriate me: public-cost private-profit deals with sports owners, e.g.)

Some of that difference is because the Democratic places have been more urban, and brownfield sites are ??only recently profitable??. That might even be most of the difference.

-- Note that I'm leaving really public projects out; if Seattle builds transit or Kitsap builds a college, they may probably use eminent domain, but for stuff that's staying publically held.--

[Clarence]

re: assemblage of parcels for development

here's a fairly salient example:

east palo alto's "university circle" project in the san francisco bay area. epa's city council (under the guise of redevelopment) used eminent domain to seize 83 parcels in the whiskey gulch area west of highway 101. the parcels were transferred to a private developer, university circle partners. the developer would not have come in without the guarantee that the entire area would be "redeveloped."

the area was fairly interesting before redevelopment; there were hardware stores, small mom n' pop stores, and tons of liquor stores (hence the moniker whiskey gulch). there was also a very, very high rate of crime (murders, drug dealing, usage, etc.)

after redevelopment, there's three office buildings and a luxury hotel.

good or bad?

good: epa now has a tax base to work with (the city has an extremely small budget and provides little services to its citizens; it's also a "high-need" city [very high crime rates for its size]). the new development has and will bring in millions in tax receipts, tax $ that the small hardware stores, etc. did not bring in.

the area is now fairly safe and innocuous. whiskey gulch was a hotbed of drug-dealing, crime, etc.

also, the hotel's going to bring jobs for unskilled workers from epa (i think there's some sort of 20% or so requirement that all employees must be from epa).

bad: lots of neighborhood "urban character" stores are gone. old barber shops, hardware stores, other businesses (owned by people of color) have basically disappeared.

the place is ridiculously sanitized, and nobody really hangs out there anymore (no gang members, too, which is the upside of that).

so here's a project that a) required assemblage but b) nevertheless caused some trepidation within the community. not everyone's saying "well done" to the project, but most redevelopment/renewal projects are incredibly complex and have their upsides and downsides to them.

and hell, even private renewal projects have their major detractors too; i don't think there have been many such projects where everyone's satisfied with the end result. (look at the redevelopment of houston's fourth ward; fully undertaken by private developers without any eminent domain takeovers, but hundreds of low-income residents displaced--there's still outcry from left-wing activists over that.)

(old article on university circle: http://www.paloaltoonline.com/weekly/morgue/news/1999_Nov_3.GULCH.html)

[David Sucher]

Clew, I can't really say that I grasp your question.
Clarence, good examples. Thanks. Another reason I don';t like eminent domain for redevelopment is that I am an 'evolutionist' rather than a 'revolutionary' and I like things to emerge rather to be handed down.