Sad. And so unneeded.

Justices, 5-4, Back Seizure of Property for Development.

The central planning notion put forward by New London, Connecticut -- that it needs to assemble large tracts to encourage development -- is simply a lie. There is no basis to demonstrate that such assemblages even work. Economic growth -- just take a look at Seattle - does not come from government intervention in the land assembly process but from the energy and enterprise of individuals trying to something crass like make a buck. That's not to dispute that government can have some key role in creating an "environment of certainty" in which people can build and trade with security. But the idea that developers need government to help them realize an opportunity could only come from people who have no experience in real estate.

The legal notion -- that a "public purpose" is anything which, say, a 5-4 majority on a city council says it is -- is truly horrifying.

UPDATE: It is truly heartening to find so many other bloggers (and, btw, only bloggers I respect in general -- no right-wing reactionary kooks considered!) who are also appalled by the Court's decision:
Marginal Revolution
The Urban Commons
Curbed
Orin Kerr
Blue Mass. Group
Todd Zywicki
Bird to the North

And I'd better stop linking as there are probably hundreds upon hundreds of others who are also outraged.

Comments

[Matt]

On this we finally have an issue on which the left and right ought to thoroughly agree (and, let me tell you, it's a rare day when I agree with Rehnquist, Scalia, and Thomas!)

Unfortunately, since the Mariner's Stadium Supreme Court decision ruling upholding the declaration of an emergency to suspend a voter referendum on that project, this has essentially been the law in Washington State - a public benefit is anything any elected body says it is.

This is why we should never allow tax increment financing in Washington State - deferring future citywide tax benefits to subsidize project that condemn private property to build stadia, Wal-Marts, and luxury housing ought to have any sane person reaching for their pitchfork...

[David Sucher]

I agree, Matt.
Abuse of eminent domain and tax-increment financing seem to go together when ambitious politicians want to play developer without any of the normal market constraints of profit/loss, entitlements etc etc. It's really rather sad that so many liberals think that any group of people who may at some particular point in time may happen to constitute an elected council indeed represent "the community."

[clew]

I don't think that's what 'many liberals' believe. It's just the spin that works on liberals, as 'duly constituted authority' may work on conservatives. I don't think anyone with an opinion on politics can't list a bunch of corrupt polities.

Anyway, dunno about liberals, but leftists haven't been able to say 'the community' unadorned by an adjective for a while. Not specifying which community is - dang, I've forgotten the terms of art, but it's probably hegemonic or something. Lays false claim to the power of normativity.

Which I agree with them it often does, but I agree with everyone else that you can't say so without sounding like a wild-eyed conspiracy theorist. Er, sorry, tangent.

[David Sucher]

Clew.
I say that because I was just reading some posts on Pro-Urb in which the the idea was put forth that this decision of the Court -- thankfully only 5-4 -- can be interpreted as a "vote for good planning." Bosh.
What I will be watching is the Democratic Party establishment. Will it have the savvy to condemn this decision? If not, we can look forward to years more of Republican mis-management.

[Rich]

Why is this a liberal issue? Local governments, both Democrat and Republican wield this power.

I honestly thought, and hoped, that the decision would be a surprisingly strong opinion against this action. To me, public benefit and public good are two distinct concepts. Conflating the issues in Kelo with those in Berman is being dishonest. There were no slums in Fort Trumbull.

And call me a leftie.

[David Sucher]

I am not sure what you mean, Rich, by a "liberal issue."
I simply want liberals to come down on the correct side -- which is that the Court majority is wrong. Many liberals will have problems with that because the state of our national political discourse is such that people often do not really examine the issue itself but often simply ask "What are my adversries saying? I will say the opposite."

[Brian Miller]

There is another good discussion (up to 4 pages now) over on Cyburbia.

I was wishy washy at first. After reading Sandra Day O'Connor's dissent and discussing the issue with a very arrogant, dismissive economic development guy-I am coming around pretty strongly to David's views. That doesn;t mean I think that local governments can never play a significant role in ecocnomic development (I am less dismissive than David there), but we are talking expropriation, not coordination, cajoling, encouragement, deal brokering, and the like.

And, for another damn museum? Another hotel? Bleh!

[Rich]

David,

I think we are on the same page. By "liberal issue" I mean that most assume that liberals see no problem with the extent that ED powers have been distorted in this case -- just the sort of knee-jerk response you find distasteful.

I find myself surprised that I'm in agreement with O'Connor, Rehnquist, Scalia and Thomas on this one.

[R . Wellor]

Bad logic of the worst sort to imply this is how liberals think. The court is far from liberal and this decision works in favor of 'traditional' conservative interests like big business.

With that said, and freely admitting my own ignorance of eminent domain law -- For god' s sake -- do property rights mean anything at all? This decision just seems to justify (or cause) a land grab by developers, from poor property owners.

It's a form of government supported fascism, really...

[David Sucher]

Btw, I don't think anyone should look at this decision as being anything remotely "pro-developer." It is not. It is merely pro-state and pro-crony. It corrodes property rights and even the largest developers/property-owners should be nervous about this carte blanche which the Court has handed down.

The good news -- and quite heartening -- is how many people across quite disparate perspectives are aligned against the Majority opinion.

Is the Democratic establishment listening?

[Murph.]

As a self-identified leftie/progressive/too-liberal-for-the-Democratic-Party, I will personally condemn the decision.

Having skimmed the opinions, my thinking right now is that John Paul Stevens really needs to stop fawning over the legislative branch. The decision seems not to be "takings for private econ.dev. are okay," but, "takings for private econ.dev. are okay if the state legislature has said they are, because they're the ones who get to define public use, and if they want to define it to mean public purpose, that's their perogative, and the courts should apply a deferential standard of review."

Now, consider the recent California medical marijuana decision, also written by Stevens. In that, Stevens says, "Although this court recognizes pot to have valid medical use, Congress has said it doesn't, and they're the ones who get to define this sort of thing. The citizenry really ought to get the legislature to remove pot from schedule 1, rather than trying to circumvent the legislature in the courts."

Dammit, Stevens - you're there to protect me from the legislature, not to defer to them on all counts!

[miss representation]

David, this entire thread baffles me. Are you thinking that liberals are going to support a decision that paves the way for untrammeled big box development?

Why should the Democrats have to say anything? We have a Republican majority, in the both the House and Senate, and most times a functioning convservative majority from SCOTUS. Why shouldn't the GOP be held responsible for this? They are all about fighting judical activism. How about some legislative reposnse to the decision?

Though is seems impossible right now, it won't be very long (still maybe months to years, but not decades) before people will notice that all the media do is beat up on 'liberals' as if they were responsible for anything. Name me a liberal that is in charge of anything. Anything (larger than a blog, that is).

[David Sucher]

Miss.
I do not understand your comment.
What do big box stores in particular have to do with Kelo?
Kelo could be used to vacate a poor neighborhood so that an expensive new urbanist one could be built. It could be used to create an organic & (sustainable!) farm. It could be used for anything you like so long as you have the votes.

[miss representation]

The precedent for dispatching 'blight' with ED was established a generation ago (unfortunately not online, but two good articles published in anticipation of the Kelo decision at thein the current issue of Harvard Design Review), so Kelo does very little to change that. And even the introduction of EIS (Enviromental Impact Studies) and ULURP in New York City have done little to protect lower income neighborhoods (blighted and benighted or not). Kelo opens even densely built areas to developers who have the ear (and pocket) of local politicians. Given how cronyistic local politics can be, a likely use of Kelo will be inserting shopping centers into highly developed residential areas. Big Box stores have the resources (and map data) to pursue this pretty aggressively. And even if Kelo went the other way, it would not help poor neighborhoods. If Kelo ever produces a single organic farm, I'll eat your book (provided it is organic, of course).

[David Sucher]

My concern is twofold:
1. There are abuses of condemnation and Kelo does nothing to prevent them. Without getting into whether Kelo was wrongly decided from a "legal" perspective -- I think it is but I am not a Constitutional attorney and there are people who don't like the Kelo result who say that is legally correct -- I do not like its result and I want to see some changes.
2. Unless the Dems move quickly & clearly, the bad guys i.e. the Republicans, will use Kelo as another wedge issue and unfortunately, unless the Dems divorce themselves from the current statist inclinations, the Republicans will have the equities with them.