Friday, August 05, 2005

Kelo, Kelo, and more Kelo

Rich Lowry notes the odd combination of politicians outraged by the Kelo eminent domain decision. I don't believe I have ever said this, or will ever say it again, but Maxine Waters is exactly right. (see this post).

Go check out the Castle Coalition's website--it gives you a complete rundown from the anti-Kelo coalition, of which I am an enthusiastic supporter.

And for other news and opinion, go read Eminent Domain Watch. It appears to present both sides of the issue in a coherent, blog-style fashion.

Redevelopment laws have been around for at least 50 years. Those, like California's redevelopment statutes, give local governments the power to cure "blight" by acquiring private property, either voluntarily or by condemnation, and then selling it to private interests who must develop it in accordance with an established redevelopment plan. In addition to the obvious benefit of clearing slums and other blighted areas, laws such as California's give communities monetary incentives for implementing redevelopment by allocating to them a disproportionate share of the real property tax increases that result from development.
The reaction to the Kelo case indicates that the public's attitude toward the power of eminent domain is lagging about 50 years behind its attitude toward land-use controls and zoning. It is settled law that governments can exercise enormous control over the uses that can be made of land. It can legally charge huge fees for building permits, limit development to one unit per 260 acres in agricultural areas, limit the establishment of certain kinds of new businesses in commercial areas to protect existing businesses from competition and impose bewilderingly detailed standards for the size, color, height, and design of structures.

The author, a real estate attorney in California (I am a real estate attorney also, so I understand where he's coming from), makes a good point: if the government can so significantly restrict what you do with your property, why can't it decide what the most beneficial use of the property is, and who is better suited to own it?

Well, a trial court in New Jersey just answered that question (at least for that specific case):
Essex County Assignment Judge Patricia K. Costello issued an order and opinion yesterday dismissing the condemnation case filed by the Township of Bloomfield against 110 Washington Street Associates. This was the first condemnation case filed by the township in its redevelopment project for the downtown center.

The decision of the court is a major setback for Bloomfield in its efforts to acquire property through eminent domain proceedings. The town’s plan was a joint venture of Forest City Ratner and Toll Brothers and included 650 residential condominiums and a 65,000 square foot Stop and Shop with an elevated parking deck.

The court found that the underlying planning process was fatally flawed. The Heyer and Gruel Planning Report improperly designated 110 Washington Street as meeting the definitions of blighted property under the Local Redevelopment Housing Law. The court said, “The record in this case is devoid of any finding that the property is detrimental to the public health, safety or welfare.”

So there you have it--broad definitions of "blight" are going the way of the dodo, and courts are most likely going to follow the NJ example. That means that the burden upon a government when it designates an area as blighted will be to show that the property is detrimental to health, safety, and welfare (i.e. a nuisance).

I like this kind of logic, because it puts the government in a position where it has to justify a redevelopment project with reference to the individual properties it is attempting to take, as opposed to a "this area is blighted, even though Mr. Jones' house is not" approach. It seems to me that the best argument for those opposing Kelo-type takings is to get back to first principles (always a good idea): it's only a public use if there is some public benefit to the taking. If the specific property is not blighted, abandoned, etc., then the government shouldn't be permitted to take it. Of course, I am simply begging the question that Kelo answered, because now, under the federal constitution, increasing the tax base is sufficient. I wonder if it would be sufficient here, in Albemarle County, which consistently runs a budget surplus?