Norquist questions eminent domain coverage

To the editor: In “New urbanists divided on use of eminent domain” [September 2005] you portray a division between those who oppose and support the use of the government’s eminent domain power to seize private property. The debate is actually over the scope and purposes of eminent domain. Among new urbanists there is a division of opinion. Some see eminent domain as a useful shortcut to urban and suburban infill, TODs, or mixed-use main streets. Those who wish to limit it see it as a threat to existing urban fabric and associate it with the excesses of urban renewal in the second half of the 20th century. What concerns me in cases like New London is that local governments, with no finding of any public benefit other than an estimate of property value growth, can take property from one property owner and hand it to another. This broad taking power seems likely to lead to abuse by the rich and politically well placed against the average citizen; people’s property might be secure no longer than their alderman’s next fundraiser. And so I accepted (as an individual, since CNU has no position on ED) an invitation from the plaintiffs to file a brief. Jane Jacobs did as well. Recent discussion on the Pro Urb list and other fora indicate that many share the view that some restraint on eminent domain is appropriate, but I know of no one in the new urban movement that outright opposes eminent domain. Common uses of eminent domain include takings for brownfield cleanup; removal of hazards to public health and safety; removal of blight; and acquisition of right of way for transport, utilities, public buildings, and parks. None of these justifications were offered by New London. The article suggests that unrestricted use of eminent domain is a crucial ingredient in implementing some new urbanist projects. Yet, the cases you cite, undertaken by new urban developers, may well have involved findings of blight or other public hazards or nuisances and thus would not have needed the New London justification of eminent domain. Indeed, the article cites examples of properties seized to clear bad titles for willing sellers or to eliminate drug houses or places of prostitution. The government’s ability to seize blighted or harmful property was not at issue in the Kelo case. In fact New London relied on only one justification, the city’s estimate that taxable property values will rise. The New London plan for the homes in dispute is to eliminate houses and consolidate blocks into a large site to provide a setting for a parking lot. Whether it’s Block 37 in the heart of Chicago, which still sits vacant 15 years after its dense cluster of vintage buildings were seized and cleared for redevelopment, or East Liberty in Pittsburgh, where a vital community of ethnic-oriented and minority-owned businesses were forcibly swept aside for failed large-scale development, it is not hard to find examples of government development strategies gone amok. There is the occasional success, but the use of takings to consolidate land for the purpose of raising taxable property value more often than not winds up coarsening urban fabric and weakening cities. John Norquist President and CEO, Congress for the New Urbanism Senior Editor Philip Langdon replies: I appreciate John Norquist’s effort to clarify the eminent domain debate. I did not mean to suggest that some new urban projects depend on “unrestricted” use of condemnation, nor did I mean to suggest that there are new urbanists who oppose eminent domain in every conceivable circumstance. I reported on eight new urban projects that were made possible, or at least speeded up, through use of eminent domain. In each case, including CityPlace in West Palm Beach, Florida, a government agency first designated the property as suffering from “blight” and thus needing redevelopment. Norquist is certainly right that governments have used eminent domain for many projects that were ill conceived and that have turned out badly. One of the problems I see is the looseness of the “blight” designation. Hal Bradford, assistant city attorney for West Palm Beach, says that in Florida the definition of blight is so broad that it can encompass “anything that would make [a property] hard to acquire; it doesn’t have to be a slum, with characteristics such as physical deterioration and crime in the streets.” Perhaps if states tightened their definition of blight, there would be fewer abuses.