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In Eminent Domain Case, Court Gave Currency to Argument About Obsolete Properties

Yet in all the commentary, little has been said about a noneconomic issue that may have played a role in shaping New London's policies, a consideration that could affect other cities pursuing revitalization.

Can eminent domain be justified on city planning and urban design grounds? Is it fair and reasonable to condemn and redevelop a piece of urban fabric, whether a single parcel or a neighborhood, when that piece of urban fabric is deemed obsolete but not blighted and not a slum-clearance candidate?

Pockets of urban obsolescence are created as a city evolves and grows in density, land-use complexity and transit accessibility. Over time, such pockets appear increasingly out of place. Underused misfits, they become less and less compatible with what's around them and often conflict with or impede revitalization initiatives embodied in urban development policies, master plans and land-use regulations.

Obsolete urban properties are not necessarily old or dilapidated. They may be structures built when circumstances were different. Zoning ordinances, neighborhood characteristics, functional needs, design theories, development standards, market conditions and infrastructure capacity continually change. Such obsolescence in the District, for example, includes the Southwest Waterfront, the just-demolished old convention center, portions of upper Wisconsin Avenue NW and suburban-style shopping strips throughout the city.

Of course, economic pressures are always a factor, but urban obsolescence can occur despite economic pressures.

Notwithstanding the specific details of the New London case, the Supreme Court's reasoning and ruling seem to expand ever further the meaning of "public use" while rejecting the notion that public use means only public ownership.

The door has opened wider for jurisdictions to legally take private property for a broad range of city improvement purposes, even when improvement entails private investment and ownership. Moreover, given this ruling and the number of obsolete private properties in urban America, the eminent domain tool is likely to be wielded more frequently by urban planners and elected officials.

Roger K. Lewis is a practicing architect and a professor of architecture at the University of Maryland.


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