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

By Roger K. Lewis
Saturday, July 9, 2005

Eminent domain has been a hot news topic since the Supreme Court upheld the legality of New London, Conn., condemning several perfectly good, privately owned homes sitting on urban land destined for "public use."

The New London homeowners had opposed the city's "taking" action, a limited power granted to government by the U.S. Constitution's Fifth Amendment. The amendment states that a person shall "not be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation."

In this case, the critical question concerned the meaning and interpretation of "public use," not "just compensation." The homeowners didn't want to sell.

The New London dispute focused on the city's justification for the taking. By transforming low-density residential property into high-density commercial property, plaintiffs argued, the city had exercised its power of eminent domain for purely economic purposes, primarily to augment tax revenue and create jobs.

The homeowners further argued that because the properties condemned by the city are ultimately being redeveloped privately, the city's action fails the constitutional "public use" test even more egregiously.

How can government take private property from one owner and turn it over to another owner? What and where was the public use in applying eminent domain to throw people out of their houses for fiscal reasons?

The roles of economics and political influence have been consistently echoed in most reporting and in published excerpts drawn from the court's dissenting opinions. The dominant themes have been that the city was moved by money, and private money to boot, and that this case epitomizes the difficulty, and long odds against success, of little guys standing up against big guys.

Cities, counties and states typically rely on eminent domain to acquire private property for unambiguously public uses: creating utility and transportation rights of way; building essential public infrastructure facilities such as airports, dams and reservoirs, schools and parks; or demolishing and replacing blighted and abandoned structures.

Recently municipalities have taken land to build sports arenas and stadiums that clearly serve private interests but presumably generate public benefits.

Although the homes in New London were not blighted and no public infrastructure facilities were planned for these sites, the city nevertheless argued that converting low-intensity development to high-intensity development constitutes "public use." The rationale is that such conversion economically benefits the city and thus the public.

The city further argued that whether condemned property is eventually redeveloped by a public or private entity is legally irrelevant, as long as the redevelopment broadly serves the public interest.

How you feel about this controversial decision depends on the extent to which you empathize with the displaced homeowners, who understandably see New London engaging in reverse Robin Hood behavior. However, in a city badly needing economic revitalization, perhaps the city's action was defensible.

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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