Take and Give

Turning eminent domain into a tool for creating vital communities hinges on crafting a delicate balance between all who stand to benefit—or lose out—from the transformation of a neighborhood.

A black-and-white photograph showing a street-corner scene in Boston. A man leans on a pillar outside a market, while another looks in the window. Illustrating an article about eminent domain.
Street corner scene from Tremont Street, in Boston, Massachusetts.

One of the greatest ironies of many eminent-domain takings is that the supposed public benefits too often do not flow to the communities suffering the human and economic costs associated with displacement of residents and businesses. Without effective community-based planning, there is a real risk that redevelopment will fail to serve the long-term needs of both the targeted community and the city at large.

James J. Kelly Jr., in his article “Taming Eminent Domain,” argues for adoption of two new forms of residency protection: a Homestead Community Consent (HCC) requirement and a Community Residency Entitlement (CRE). While I agree with the underlying goals of community participation and approval, as well as fair compensation for displaced residents, I believe meaningful community participation requires a more comprehensive approach to assessing community needs, and a more focused, systematic process for obtaining community input, than Kelly’s proposals guarantee. An approval vote requirement, by itself, does not offer a structured framework for decision making, with clear criteria to evaluate community benefits and costs.

Structural economic and political factors often cause municipalities’ goals to be at odds with those of local communities. Municipalities have a built-in incentive to focus economic development efforts in poor neighborhoods, because land costs are relatively low and many residents lack the financial resources or the legal standing to bring an effective challenge in court. Even well-meaning decision makers may fail to perceive the potential of low-income communities — skewing the calculus of opportunity and cost associated with the destruction of homes, businesses, and neighborhoods. The perception that there is nothing there worth preserving, or that local residents lack the sophistication to engage in a complex planning process, may also deter public decision makers from working closely with local stakeholders to evaluate projects in the context of community needs. Yet intensive engagement by residents and local business owners is essential, not only to an effective planning process, but also to assure that decision making is well informed.

Eminent Domain in a Community Context

The Dudley neighborhood in the Roxbury/North Dorchester section of Boston is a vibrant community, home to numerous community-based organizations (CBOs), as well as a host of diverse cultural, civic, and educational institutions. Nevertheless, this neighborhood continues to struggle with the legacy of decades of redlining and public disinvestment, as well as widespread destruction through arson of residential and commercial structures in the 1960s and 1970s. As recently as 2000, as many as 1,000 parcels of land in Roxbury still lay vacant — more than 20 percent of the total area. At the same time, housing costs skyrocketed, nearly doubling between 1995 and 2001. The high proportion of extremely low-income households presents a pressing need for more affordable housing options.

Eminent domain has been used effectively in Dudley as a tool to eliminate blight and increase affordable housing stock by two very different organizations: Dudley Street Neighborhood Initiative (DSNI), a community group, and the Boston Housing Authority (BHA). A large urban housing authority and a CBO typically have little in common. Yet the takings by these entities share several elements that offer the key to effective use of eminent domain to promote community wellbeing.

DSNI has been a powerful force in Roxbury and neighboring North Dorchester since its formation in 1984. Initially, residents organized to protest city plans for a mixed-use redevelopment proposal to build office towers and hotels, and mixed-income housing. Having successfully opposed top-down redevelopment proposals that threatened to result in displacement and gentrification, DSNI turned to redevelopment planning grounded in community needs and aspirations. Through an intensive process of community engagement, with the help of planning consultants offering technical expertise, DSNI developed “The Dudley Street Neighborhood Initiative Revitalization Plan: A Comprehensive Community Controlled Strategy.” The city’s formal adoption of this plan as the blueprint for change in the Dudley neighborhood laid the groundwork for future planning efforts, including the 2004 Roxbury Strategic Master Plan, a master plan for the broader Roxbury community.

In part, DSNI’s success is attributable to its governance structure, which assures that decisions reflect a broad range of individual and community interests. Early on, residents insisted on a broad mandate for community representation; DSNI by-laws require that an equal number of directors represent each of the neighborhood’s largest racial and ethnic groups, and also reserve seats for representatives of key organizations and agencies providing services and products to DSNI’s core geographic area of operations.

May Louie, DSNI’s director of leadership and capacity-building, notes that the group plays a significant role in bringing residents together “by embedding a set of community principles in the composition, functioning, and performance of the board: community control; accountability to the community; all stakeholders represented; resident-led; and power sharing.”

Sr. Margaret Leonard, executive director of Project Hope (a neighborhood CBO) and a DSNI board member, says that DSNI’s representative governance structure, experienced staff, and inclusive, respectful process all contribute to its success in reflecting community interests. “The fact that you have a board representing the diversity in the neighborhood, with the opportunity for organized partnerships with CDCs and service organizations … [enables DSNI to] organize diverse constituents across the neighborhood,” Leonard says. “Neighborhood associations often represent only one part of a neighborhood. DSNI represents a larger neighborhood, with a broader constituent base. Without this structure and vehicle, what would community consent give you? You need to have those pieces in place.”

DSNI’s outreach to a broad cross-section of the Dudley neighborhood, coupled with its intensive, long-term engagement in strategic planning, created the framework for its successful use of eminent domain. In developing the DSNI plan, it became apparent that patterns of land ownership created a formidable barrier to redevelopment, similar to the challenges in East Baltimore that Jim Kelly describes. Within the “Dudley Triangle,” a 64-acre area at the heart of the community, 30 acres of land lay vacant; of these, about half were city-owned, and half privately owned, interspersed so as to make site assembly extremely challenging. Most of the more than 100 private owners lived outside the neighborhood.

Recognizing that successful redevelopment required acquisition of contiguous parcels, DSNI persuaded the city to grant its affiliate, Dudley Neighbors Inc. (DNI), status as an “urban redevelopment corporation,” with the power to acquire vacant land within the Dudley Triangle by eminent domain. Land taken as well as land acquired by purchase from the city is held permanently in a community land trust. Since 1988, DNI has acquired about 28 of the original 30 acres of vacant land in the Dudley Triangle. Initially, when no one else would take on the risk of development in this area, DSNI became the developer of last resort, building 36 homes for sale to low-income homebuyers. Since the first project, both for-profits and CBOs have developed housing under long-term ground leases from DNI. To date, 157 new, permanently affordable homeownership units have been developed, and an additional 68 units are in process. Despite the wave of foreclosures affecting the North Dorchester and Roxbury communities in 2007, not a single home on DNI land has been lost to foreclosure.

Since the 1980s, DSNI’s planning role has continued to expand, and the City of Boston has partnered with DSNI as the voice of the Dudley community. In 1999, recognizing that redevelopment “has to fit in order to last,” the city agreed to a Memorandum of Understanding under which DSNI and the community at large participate in every stage of planning for new, city-sponsored projects within the neighborhood. This process often begins months before the issuance of a Request for Proposals. The city and DSNI jointly plan and sponsor community meetings at which residents can voice concerns about issues ranging from land-use options and housing needs to traffic, transportation, and physical design. City staff and planners, together with DSNI board, staff, and volunteers, provide visual models and detailed information to help community members evaluate the options. DSNI’s Louie characterizes the process, from project conception to developer selection, as a joint effort of the city and the community. “It’s not that there are never disagreements, but I think it’s mutually beneficial, and both of us really act that way.”

The city has recognized the positive role that DSNI and its affiliate, DNI, play as representatives of and advocates for the Dudley neighborhood. On January 30, 2008, in ordering a hearing to explore the benefits of community land trusts, Boston City Council President Maureen Feeney explicitly acknowledged DSNI’s beneficial role and asked the city to examine the DNI land trust as model for expansion of the concept in Boston.

These efforts have had a profound impact on physical redevelopment in Dudley. More than 400 new affordable housing units have been built in the neighborhood, and more than 500 rehabilitated; other recent improvements include parks, playgrounds, schools, new businesses, community centers, and a town common. Today, Dudley Street, the main thoroughfare in DSNI’s core area, is lined with attractive housing, small businesses, community institutions, and public spaces. It seems almost inconceivable that, less than 20 years ago, the vista was largely abandoned structures and garbage-strewn vacant lots. What is most remarkable about this transformation, however, is that it resulted from grass-roots organizing, community-based strategic planning, and development targeted to community needs, rather than gentrification or top-down redevelopment.

As in Baltimore’s Middle East neighborhood that Kelly describes, the collective action of Dudley residents to insist on involvement at multiple stages of redevelopment planning has resulted in a better outcome for the neighborhood and the city. However, it is not clear that improved outcomes would follow from merely giving property owners approval rights. DSNI’s Louie commented that, in response to the group’s community process, residents “have come to expect input in planning decisions” and have accumulated considerable knowledge and experience regarding the criteria by which development proposals should be evaluated.

In the late 1990s, the BHA also used eminent domain for positive change in the Dudley neighborhood. Historically, public-housing development has resulted in widespread displacement of residents and businesses, particularly in communities of color. In contrast, through its revitalization of Orchard Park, a distressed housing project, and its surroundings, the BHA used its eminent-domain power to further restore the community.

Originally constructed in the 1940s, Orchard Park was severely deteriorated and functionally obsolete prior to its redevelopment. Many of the land parcels in its immediate area had been vacant for two decades. Rather than simply renovating or replacing its existing housing, the BHA sought to restore the wider area by acquiring dozens of vacant sites and combining them into several large development parcels. While the BHA was able to purchase some parcels, eminent domain enabled the agency to acquire lots for whom no owner could be found, as well as lots that had long been held vacant by owners hoping to capitalize on rising land values.

In acquiring this land, the BHA was able to achieve two separate but related goals: facilitating creation of more affordable housing and overcoming the negative impact of vacant and abandoned properties on the new housing and the community. Without the use of eminent domain, it would have been impossible to create parcels large enough for housing development. To date, more than 70 units of affordable housing have been built on these formerly vacant parcels.

Although a public agency, rather than a community organization, sponsored the Orchard Park redevelopment, resident participation was integral to the process. Thanks to strong leadership and organization, the Orchard Park Residents Association (OPRA) was instrumental in winning funds from HUD under its HOPE VI program and participated in selection of developers for the project. OPRA also insisted on co-ownership of the new housing with developers. A tenant advisory board participated in housing design and planning. According to Deborah Goddard, BHA’s former HOPE VI director and currently chief legal counsel for the Massachusetts Department of Housing and Community Development, even before securing HOPE VI funds, the BHA had been working for several years with OPRA in planning for the comprehensive modernization of Orchard Park.

The BHA’s use of eminent domain proved remarkably uncontroversial, given the Dudley community’s past willingness to block unwelcome city-driven redevelopment. Goddard attributes the positive response to the fact that the proposed takings were “grounded in a very tangible revitalization effort” that was “completely and easily understood by a lay person watching something going on in the neighborhood.” Also, Goddard observed, because the takings were limited to vacant land in the immediate vicinity of the ongoing HOPE VI project, “there was no sense that we were overreaching in terms of the amount of land or the location of the land.”

While public-housing residents’ input was essential to shaping the Orchard Park plans, the BHA also reached out to the wider community to assure that residents understood its methods and objectives. As a result of this transparency, public comments at the Boston Redevelopment Authority hearing approving the proposed takings were mostly favorable. Public input also influenced and improved the final development plan.

The eminent-domain takings by DSNI and the BHA share several characteristics. Each took only vacant land or unoccupied buildings, with zero displacement of residents or businesses. The resulting uses directly and visibly benefited the community. Particularly in the case of DSNI, decision making was informed by extensive community participation, with clear articulation of assets, needs, and priorities. Both programs were designed to be consistent with a strategic plan developed through grass-roots participation with the help of professional consultants. These characteristics describe the ideal taking: one that clearly benefits the affected community, while imposing no material burden on residents or businesses.

Guiding Principles for Community-Based Decision Making

The DNI and BHA takings are easy cases. They demonstrate that community-based strategic planning can create a principled framework for using eminent domain to serve a genuine public purpose. While Kelly’s proposal for community consent may succeed in blocking uses of eminent domain that are detrimental to homeowners, standing alone it does not offer the kind of structured cost-benefit analysis and broad-based community engagement that are at the heart of the success of DSNI and OPRA — and, indeed, the Save Middle East Action Coalition in East Baltimore.

Residents presented with a take-it-or-leave-it proposal often lack the information they need to make a judgment on any basis other than perceived individual self-interest. The challenge for residents and planners alike is to evaluate whether the benefits of a proposed development project will truly outweigh the human, social, and economic costs.

For community consent to be informed, participatory, and focused on the interests of the whole community, municipal officials, residents (renters and homeowners), and civic and business leaders must engage in an intensive strategic-planning process focusing not only on a community’s deficits but on its assets, including both economic and human capital. This collaborative process has the potential to fundamentally alter any subsequent dialogue on eminent domain.

Most important, a comprehensive strategic plan identifying local strengths, needs, goals, and opportunities, including the economic potential of existing businesses, should precede an evaluation of the benefits and costs of future development. While Kelly’s community consent requirement would allow property owners (but not renters) to vote on a proposal, without an effective planning process residents may lack the tools needed to evaluate proposals thoughtfully and act on any basis other than immediate self-interest.

Where a proposed redevelopment requires displacement, state statutes should also mandate an analysis that weighs the full range of economic and social costs. Promises of new jobs are inherently speculative, while shutting existing small businesses can harm both the affected neighborhoods and the city as a whole.

Finally, human costs must be taken into account. How many people will a proposed taking displace? Will the harm disproportionately affect communities suffering from years of disinvestment and neglect? Will residents have preference in occupancy — and will affordable replacement housing be made available? Is comparably priced alternative housing readily available in the neighborhood, or will those displaced be pushed out of the community, adding to overcrowding and housing shortages in adjacent neighborhoods? To what extent are existing social networks and community institutions disrupted?

To fully protect residents, a project imposing a high cost in displacement and disruption of the social fabric should be deemed to fail the public-purpose test unless local stakeholders conclude that the proposed benefits are truly extraordinary and will serve the community on whom these human costs are imposed. If a taking meets this stringent test, in place of Kelly’s market-driven calculus, redevelopment statutes should require a high, fixed level of compensation: for homeowners, at least 50 percent above appraised value, and for renters, double the benefits otherwise mandated under the Uniform Relocation Act.

In the context of intensive community engagement, eminent domain has proven a powerful mechanism for positive change and a catalyst for both resident empowerment and market-based investment. Tying the use of eminent domain to a structured, in-depth planning process, focused on local assets and resources, will help avoid the devastating consequences of past urban-renewal schemes, while empowering residents, CBOs, and business leaders to help shape the future development of their communities.

As one proud DNI homeowner declared, “Having people have the power to make decisions about their neighborhood — it’s so empowering.” Legislative protections for community residents need to assure that residents are provided the information, tools, and decision-making framework to wield that power for the benefit of the entire community.

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Roberta L. Rubin teaches courses on housing policy and housing law at Tufts University and Northeastern University Law School, and practices law (specializing in affordable housing and community development) at Klein Hornig, LLP in Boston, Massachusetts.

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