Worthwhile TV segment on eminent domain

Very insightful comments by John Norquist (Congress for New Urbanism) on Jim Lehrer. Watch by linking to the show here. Definitely worth the time to watch -- this guy has been mayor of a big city so he is no dreamer and makes (as I parce it) the urban design and redevelopment argument against eminent domain.  One of the money quotes:

The key to revitalization of American cities is the complexity of cities, the form of cities, the streets and blocks that were being ripped apart in the '60s and '70s and '80s. Cities have finally started to figure out that the urban form is actually valuable and they don't need to tear cities down and try to turn them into the suburbs. And that's really what this decision -- the majority opinion sort of implies, that somehow cities automatically know what adds value.

And

The small developer, the small business person, the small property owner, they're the ones that are the key to urban revitalization -- not having some big firms that's routinely hiring lobbyists and lawyers and goes down to city hall. And what Justice Stevens' decision really implies is that you're going they have this big, powerful developer come in with the city government and it's always going to be a public/private partnership and they'll automatically know how the add value to the economy.

Norquist has it exactly right: we don't lose anything -- in fact we gain -- if we forswear the use of eminent domain in urban redevelopment because it simply hasn't worked and there is no reason to think it will work in the future. Putting aside the very important legal and moral issues, we should totally reject or extremely limit (through a high legal burden) the broad-brush redevelopment facilitated by Kelo. Such big projects usually don't give us robust, broad-based investment and human-scaled comfortable cities.

Look at it this way. Which is better for a neighborhood:
• 100 discrete investments of $500,000?
or
• one investment of $50,000,000?

I say the former as it indicates broad-based confidence.If you just count the votes and consider the importance of political attention in maintaining the infrastructure, I think the greater number pf people -- the broad base of reinvestment -- provides more political attention over the long run.
For another there is lower social risk in diversifying the investment sources.
Then there is a greater variety of minds at play in developing a host of properties which will produce a more diverse urbanscape.

There is a host more reasons why lots of small development is usually better than one big development. Only if you want BIG projects is assemblage important. And big projects are of little, personally, interest to me. I am not saying that good work can't be done at a larger scale, but bad work can be done that way too and as it is a larger scale, it has more of an impact. You have fewer minds at play and so a few inept decisions have a larger impact, especially because with a larger site there is a chance you'll get a starchitect wannabee who wants to be creative and imaginative and prove to us that he is a genius.

UPDATE: Ultimately, and I don't mean to be cynical, but the most persuasive legal argument for limiting use of eminent domain in economic redevelopment is going to be an urban planning/design argument i.e. if liberals understood that we really don't need eminent domain to do a good job of urban planning, their support (even tepid as it is now with a lot of caveats and "Well, I guess we just have to...") for Kelo as legal doctrine will slink away. All of us -- of every stripe -- seem to be able to make up neat, logical explanations using whatever texts are at hand, to justify what we want to do if we think that the doing is crucial. Take away the imperative of eminent domain in economic development and it will be interesting to see how legal thinking will change.

Comments

[Brian Miller]

Ah, but without big projects one cannot build a National Museum of Kumquat Farming and the necessary government-subsidized vistiors' center, chain retail, and budget hotel! How will your town "arrive" without these joys?

[Laurence Aurbach]

For me, the money quote by Norquist is this one:

And you look around the country and I really think this is going to encourage cities to feel there's really very little restraint on them other than that, sure, there there's the ballot box. But the founders of this country put in the 5th Amendment for a reason. That's because they didn't want to just leave it to state, local or federal government to decide whether or not people had property rights.

Here's how I see this decision:

1. The Constitution specifically says that private property shall not be taken except for public use.

2. The Supreme Court is the final arbiter of constitutional interpretation.

3. The essential question of Kelo v. New London was: Did the city's taking meet the constitutional requirement of public use?

4. The Court failed to answer the central question put before it. Its decision was that public use is whatever a governmental entity wants it to be. "Anything goes" is equal to no definition whatsoever. The Court has failed to meet its responsibility of judicial review.

[David Sucher]

I agree with you Laurence and I have to say you put it so clearly...but its cautionary to hear a person with whom I agree substantively -- that's Ellickson in another post -- say the Court decided correctly. However I would note that his affirmation was also a bit wimpy: "isn't it better to let states develop independent policies? I'd prefer that the main battlegrounds on eminent domain issues be city halls, state capitals, and state supreme courts, not the federal courts."

Why so? Why not let states also decide who can vote? etc etc We don't do that because we want to assert national standards and it seems to me that taking someone's home deserves a lot of judicial review.

As I said somewhere else recently, I think part of the issue is the separation of "personal" rights from"economic" rights. I know that as a liberal I am supposed to say that they are totally different and deserve the different standards which the Court afforsd them. But I can't say that.

[Alison]

I was totally in favor of the Supreme's decision until I saw NOW on June 24th, which put a face on the story.

Shifted my view 180 degrees. Transcript worth a read.

The City Comforts Blog, written by Seattle progressive city planner, also has an opinion: Sad. And so unneeded.">Transcript here.

[Alison]

OOPS! PBS' NOW segment on Eminent Domain transcript here.

[JRoth]

> Look at it this way. Which is better for a neighborhood:
> • 100 discrete investments of $500,000?
> or
> • one investment of $50,000,000?

Showing a brilliant understanding of how brownfield redevelopment works.

I'm sorry for the sarcasm, bur I can't help but view your extreme closed-mindedness on this issue as a byproduct of geography. I know Seattle/Wash. is not without former industrial areas, but as a resident of a Rust Belt city, I find your ad nauseam paeans to small-scale, non-gov't-led redevelopment to be... Pollyannish?

I've seen small-scale, Main Street-style recoveries work; I'm a huge advocate of them (I live in one ongoing and work in another complete). But I also recognize that 300 acre brownfields are not recovered that way. And you explicitly, absolutely, rule out the only kind of fix for these sites: "we should totally reject or extremely limit (through a high legal burden) the broad-brush redevelopment facilitated by Kelo."

The citizens of Homestead, Braddock, McKeesport, McKees Rocks, Duquesne, Clairton, etc., etc., thank you for rejecting their future. Let a thousand entrepreneurs remediate their sites, and a million properties be assembled, so that we must never lay eyes on starchitecture.

[David Sucher]

Why are you bringing up brownfields remediation? Kelo involved a very viable unpolluted neighborhood.

Condemnation of a brownfield site is an odd idea in itself, as I imagine that a true brownfield has a negative value and people are trying to get out from under the tremendous liability of cleaning it up so I am not sure how important eminent domain would be. But in any case it would also be an example of eminent domain to cure genuine blight which is really not at issue. Of course real blight -- not the make-weight "blight" which provides legal color -- is and should be allowed. But such remediation might not require assemblage or then subsequent sale to only one party to make a large project.

JRoth, I am sorry if I have not been clear. My problem is not with eminent domain in general -- I have written to support it on this blog -- but with government-sponsored economic dedvelopment projects -- I don't like them in general -- and especially those which use condemnation.

[JRoth]

Well, I think it's pretty clear that all of the hullabaloo over Kelo has not been about the status of a dozen New London houses, but rather of its broader implications. So it's irrelevant to my point that the Kelo houses were not, in any honest sense, blighted.

My primary response was to your specific phrase "we should totally reject or extremely limit (through a high legal burden) the broad-brush redevelopment facilitated by Kelo." Now, if all you meant by this was, "we should reject tearing down non-blighted properties," then sure, I agree. But it's been a consistent thread in your comments on Kelo, and elsewhere at City Comforts, that you do, in fact, reject large-scale, gov't-led redevelopment. And that is an attitude that I find profoundly disconnected from my reality.

At some point on my blog I'll clarify my point about brownfields, but your comment on it confirms my impression that your experience with post-industrial redevelopment differs from mine.

[David Sucher]

Yup, you have the basic story correct. I do pretty-much reject " large-scale, gov't-led redevelopment." Are there going to be exceptions? Sure. But my default position is that it is unneeded and dangerous and unproductive to mix up government as market regulator and government as market participant. The personal and social dysfunction which is the source of poverty and produces so many so-called "blighted" neighborhoods is not solved by government assemblage of land for resale. I find that idea preposterous. I really don't understand why we need a whole lot of government participation except to create sensible rules and admister them honestly, which is no small task. Does that mean I reject such things as housing authorities which build for the poor? No. Do I reject govt-owned parks and recreation centers? Puh-leeze. But I would set as a policy preference that the authority would buy land on the open market like any other market participant -- I mean they are supposed to pay fair market value anyway, so why not? -- and I'd go so far as to raise the bar on what is considered "blight" which I believe was used far too freely in the past.

I have been thinking about this issue and I really can't conjur up a situation in which I would support (from a policy POV) the condemnation of a neighborhood in the interest of resale to another private party. There are just so many other ways to go about things which are far more effective. I sthere some possible scenario in which I would say "OK"? Maybe so but why capitalize for peaks?