Reader Requested Friday Question of the Day

From the Red Porch, originally uploaded by Rukasu1.

This is a rather vague one for the moment but more details to come soon. In the meantime a reader writes:

“Would you support the uses of Eminent Domain by the DC government for urban revitalization project within your community?

The Supreme Court ruled that the uses of eminent domain for community benefit was just (Kelo v. City of New London), where the court agreed with the City of New London that the general benefits a community enjoyed from redevelopment and economic growth qualified as a permissible “public use” under the Takings Clause of the Fifth Amendment.

Meaning that the Govt can uses eminent domain to gain control of a property and then offer it up for redevelopment to private developers. The city has used eminent domain to gain control of land in the following projects:

The National Baseball Stadium –

DC USA Mall in Columbia Heights

Northwest One Redevelopment –

31 Comment

  • I don’t think Kelo was properly decided, I think the court stretched the definition of “public use” way beyond what should be considered public use under the Constitution. If private developers want to build a private commercial development they should have to deal with buying up the land (holdouts included) on their own. There are other mechanisms that local governments can use to entice private development to make it profitable, like tax breaks or tax abatement, improved infrastructure around the development, low interest loans, etc… This is not to say I don’t think the new baseball stadium or DCUSA are bad developments, I actually think each has helped the communities they serve, but that doesn’t make Kelo a correct decision, and I think both projects could have been accomplished without Kelo.

  • If I’m the one losing my property, I imagine I would be pretty pissed no matter the reason for the taking.

    Related question: Does anyone know if DC exercises eminent domain on vacant nuisance properties? If so, do you know the frequency? It would seem a similar issue: taking the houses and selling them to private persons.

  • In total agreement with Isotopor: if a development is really worth having, then it can be accomplished through private means. Of course, the use of eminent domain can speed along certain gentrification trends. DCUSA probably would not have happened as quickly as it did without the use of eminent domain. However, DC’s demographics were already trending in such a way as to make it profitable for stores like Target and Best Buy to locate somewhere near downtown, so I have no doubt that they would have done so in the near future.

    The problem with eminent domain for commercial development is that governments often get it very, very wrong by tearing down blocks of small-scale retail and residential neighborhoods to build large-scale developments that eventually do not succeed, leaving blight and broken neighborhoods as their legacy. See New Haven, CT, as the prime example of failed urban renewal policies. They did theirs in the 50s and 60s and are just now starting to recover.

    My vote is to let private parties handle the assembly of land necessary for their developments. If they can’t do it, then it’s probably not worth it.

  • It always seemed like Eminent Domain was used for things like highways in the past and that now they are doing for things I don’t know if early proponents though of. Highways and such are sure for “public use” baseball stadiums and shopping area is stretching it way too much. So for commercial development – even “revitalization” – definitely no (“revitalization” gets to be very fuzzy around the edges as it creeps further out).

  • Legally, I think the case was settled correctly. Whether a local government should exercise that right is questionable. That can only be determined on a case-by-case basis. And like every other choice governments (or people) make, sometimes they get it right, and sometimes they really screw it up.

  • never if the property is actually being used. But I would support it if the city used it to seize the burned out shell on MTP Street.

  • in general, no–I think eminent domain should be reserved for public projects (parks, roads, schools), not ones where the major benefit accrues to a private developer. And even then I think a careful look at exactly what land is needed should be made…for example, can a park be made slightly smaller to avoid the house of the one person who doesn’t want to sell?

    But I do strongly agree with the seizure of nuisance properties (ones with serious code violations or tax delinquencies) by the city, even (perhaps especially) if they’re sold to private developers afterwards with a contract requiring them to begin construction within a certain period of time or else they owe the city money. It’s insane that even at most tax sales, what the buyers actually own is not the property but the lien on it…so they can’t redevelop it, and the original owners get to make their back payments and get back their blighted property.

  • Ever since I moved to Bloomingdale, I haven’t been sober thanks to the liquor stores on every corner. While the U-St residents are barhopping, I’m liquor store hopping with random neighborhood bums who are four months preg. So, I hope the district policy makers don’t use eminent domain powers to initiate drastic neighborhood changes. The only expectation that I have is for the plethora of RPCVs to reunite and dig a well for one of the project communities.

  • When did everyone become a republican that agrees with Thomas, Scalia, etc.?

    I support eminent domain, I trust the DC government and government in general to do the right thing.

  • well put Isotopor.

  • One economic rationale of why development can not always occur through private means (@Eli, Istapor) is the “hold out” problem. Suppose a project with 20 vacant lots and 4 occupied ones, and the whole parcel of 24 lots is necessary for the project to go forward. Since each of the 4 occupied lots can stop the project from going forward, each has a legitimate claim to the entirety of the value of the project. But the developer can’t afford to give each occupied lot owner the full value of the project because there is only one project with value to dispose of. Furthermore, suppose the developer negotiates with the occupied lot owners one by one; the bargaining power of remaining lot owners goes up and up. This is the basis for eminent domain, whether for public or private use, and it’s in the Constitution, and I think it’s probably a good thing for society that has stood the test of time. Caveats: yes, it’s a bummer if your property gets taken, and no, eminent domain is not always applied with wisdom and foresight, and yes, there are alternate mechanisms (legal, political) to check abuse.

    As to whether private economic development can serve a “public use” for which eminent domain can be applied, I guess the Kelo case says yes. Does anyone know whether the decision applies a higher standard for private over public use, or what balancing test the court proposes?

    @Anonymous 9:12, what if the property is being used as a crack house, unknown to its owner? Crack house owners and burned out shell owners have rights too.

  • I fully support eminent domain and projects such as the Stadium and DCUSA and their positive impact on the community. That being said, I also believe, unfortunately, that Kelo over steps the bounds of what is allowable under the constitution. What makes me especially uncomfortable about what Kelo allows is that private individuals or corporations will be profiting, oftentimes immensely, due to government action. This begs the question how to decide which individuals/corporations receive government largess and which do not and also opens a whole other can of worms relating to corruption and related issues.

  • MandarinZazz… we all became “republicans” who agree with Scalia and Thomas because they were correct on this case. The Kelo decision was terrible… not to mention unconstitutional.

    Good luck with that whole “trusting the DC government thing.” Let me know how that goes.

  • TonyS, you may think the decision is terrible, but like it or not, it’s Constitutional, the moment the Supreme Court said it is. The Supremes get the final say on that under our system of law.

  • i support use of eminent domain to rid our neighborhoods of undesirables, such as squirrels.

  • 99% of the time, the reason why there are ‘holdouts’ is because they are not offered true market value for their property. If I ever have a house in a highly desirable area, I’m expecting to get compensated based on real future value of the land, not for current assessment. That’s how everything is priced, and I don’t see why houses/land should be any different.

  • Zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

  • What’s funny is you could have shown an old pic of Griffith Stadium [where Howard Hospital now is] to illustrate this point also. Some homeowners refused to sell to the stadium/team and they ended up just building the stadium around the house and trees. If you see old pictures there’s an odd cut-out in center right field.

  • “DCUSA probably would not have happened as quickly as it did without the use of eminent domain.” It took 40 years!

    I think people overlook that eminent domain is not free! The jurisdiction does seize the property, but you have to compensate the former owner. And most of them get a very sweet deal that far exceeds the market value of the property. It’s like you’re forcing them to get a great deal.

    Would you like to see the slumlords of some vacant shell get a windfall payment? Then, eminent domain is your answer.

  • well, regardless of whats constitutional and whats the law, we still have opinions about the game.

    The Stadium was bullshit.
    “New Town” is bullshit.
    both make me furious.

    DC USA, i dont mind, but didnt follow the details back then. i just remember lots of stuff i never went to, then the shells.

    so, for me it depends. you wanna take violent housing projects and raze them, hit it!
    you wanna take questionable blocks with homeowners? not so much.

    how about seizing vacant,derelict and problematic buildings? yes please. today if possible.

  • jim – obviously i am aware that the supreme court is the highest court in the land. thanks for the quick civics recap though.

    surely you are not arguing that they are infallible? Their interpretation of the takings clause of the constitution was loose, and i believe, against the framers intent. lets stick to the issues. kelo could, (and probably would!) be overturned by the current court were it to come back to the bench.

  • @ Monkey Daddy:
    Others may disagree, but I believe the holdout issue is overblown as far as the problem it presents for new commercial development. Holdouts are really just a question of negotiating leverage between the the potential developer and the holdouts. Yes, occasionally there are those holdouts who would actually refuse any amount of money offered them for their property, but most of the time they do actually have a price. Holdouts may change the dynamic of property sale negotiations, but in the end it’s still a basic supply and demand transaction. The holdout has very valuable property and the developer might seem like it is over a barrel in having to deal with one or a few holdouts, but by the same token, those holdouts want that windfall of cash, and if they overplay their hand and the deal doesn’t get done they don’t get any money at all, and may be stuck will living next to a lot of pissed off neighbors would would have taken less money.

    However, the holdout issues is not really relevant to the core issue of what Kelo stands for, and that is defining (or redefining as I see it) “public use” in the Constitution to mean development built, owned, and operated entirely by private companies and generating profits solely for the benefit of those companies. The actual basis of eminent domain comes from the takings clause of the fifth amendment, which states in its entirety, “nor shall private property be taken for public use, without just compensation.” The Kelo majority framed the public use aspect of the New London development as benefiting the community as a whole because it was part of a larger “economic development plan,” and therefore categorized the taking as necessary for “public use.”

    I believe this definition of “public use” has morphed the question of whether a specific project had a true public use (which I take to mean public infrastructure and public facilities owned and operated by Fed or local governments) to one simply of size. That is, a really big development like DCUSA is now “public use” because it is part of a locality’s economic development plan, but a smaller one, say, the new Meridian Pint building, is not. What is the real difference between these besides size? You might say that DCUSA has the potential to really transform a neighborhood, and I think it did, and Meridian Pint’s impact would be comparatively small, but that is just a question of proportion. I think a whole string of many small private commercial developments, envisioned and developed independently by small owners would have a similarly transformative effect on a community, yet would be left out of the definition of “public use” as defined by the Kelo court if they weren’t organized by the local government into an economic redevelopment plan. I don’t think big private commercial developments are true public uses, even if labeled as part of an economic development, because it will be owned by the developer.

    To answer Monkey Daddy’s question of whether there is a higher standard for private over public use in Kelo, there is not. Stevens specifically said a heightened standard would have a chilling effect on new developments that were part of a local government’s economic redevelopment plan because it would inject a judicial review into each one.

    In fact, Stevens addressed the scenario that Kelo detractors are most afraid of directly, that is, “nothing would stop a city from transferring citizen A

  • @dcpublius: the logic of the “holdout” situation is that the “fair market value” becomes the *entire* market value. That’s the strategic advantage of “possession is 9/10ths of the law” in this type of negotiation…and the purpose for eminent domain in the first place. Caveats about the ability of the government to properly assess values and the legitimacy of private development as public purpose still in place.

  • i know we were talking about private development but…..i do wonder what would happen if dc education system ever becomes marginally acceptable to the middle class. imagine regular middle class folks actually staying in the city when they have school aged kids? will we need eminent domain for the schools we’ve gotten rid of?

    and will we ever have more metro stations in the city? i hope so, but where?

  • I saw this case argued at the Supreme Court. I understand why people who stand to lose their land would be outraged, but really, the case didn’t stretch anything at all. The Kelo attorneys basically admitted as much in oral argument, and the Kelo decision basically says “you what we said before over and over in other cases, yeah, we meant that.” Since the 1800s, the court has held that “public use” in the constitution really means public purpose or benefit. It came up in the 1800s because the government routinely used eminent domain to take private land and hand it over to private companies for the construction of railroads. Railroads were privately owned, for-profit enterprises, but they benefitted the public by providing transportation options, and it was well settled that that was enough. I think it’s pretty hard to find a principled difference between that and economic development that benefits the public. I’m not saying it’s fair or good policy, it’s just well settled law.

  • So, what about using it to take over the dismal Safeway (they own the property) at 3800 Georgia, so it can be offered to another grocery store chain?

  • exactly! where do you draw the line??? its a scary thought to think that the city can take any business or home they dont like (purchased at “fair market value”) and give it over to a company they do like. all under the guise of “public interest.”

    creeping fascism

  • Part of the Kelo decision was that government could delegate ED power to private parties. That’s a little disturbing.

    Nevertheless, the check against rampant ED is that any government that does it has to survive the next election. If the people don’t like it, they vote them out. That’s what happened in Southwest with urban renewal. DC had plans to duplicate urban renewal all over the city: Shaw, Adams Morgane, etc. But the electorate basically put their foot down and told the city politicians they wouldn’t get re-elected if they ever dared to do another Southwest.

  • There was an ED bill in Council this year to take 3 or 4 businesses in Anacosita at MLK/GH Rd and combine them into one big lot for development.

  • support eminent domain? it feels like we already have it where i live it’s called, Historic Preservation!!

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