Taming Eminent Domain

We can harness backlash against eminent domain abuses in the aftermath of the Supreme Court's Kelo decision to bring about genuine community empowerment in the redevelopment process.

Not since the late 1960s has there been such a strong outcry against the use of eminent domain in urban redevelopment. On its face, the U.S. Supreme Court’s 2005 decision in Kelo v. New London merely reaffirmed settled law that federal courts will not interfere with state and local governments’ development plans that would compel private owners to sell their land at market price. Far from resolving the controversy, however, the Court’s apparent approval of the taking of Susette Kelo’s “little pink house” provoked a populist backlash that inspired a wave of state legal reforms aimed at curbing the use of condemnation for economic development purposes. People across America suddenly understood that they could be forced to move from their homes simply because a governmental redevelopment agency spotted an opportunity to make what it considered to be more productive use of their land. According to the Institute for Justice, the libertarian public-interest law firm that represented Kelo, 42 states have enacted some form of restriction on the use of eminent domain for private redevelopment since the Supreme Court’s decision in her case.

Even as the Institute for Justice’s Castle Coalition continues to champion total bans on any taking of private property for resale to private interests, other, more moderate, voices are now beginning to be heard. In California, Eminent Domain Reform Now, a coalition of homeowners, renters, and environmentalists, is proposing the Homeowners and Private Property Protection Act, a voter referendum that would prohibit the State of California and its local governments from forcing homeowners to sell their properties to private parties. This same coalition is working to defeat another ballot initiative that would not only ban economic-development condemnations of any property, occupied or vacant, but would also hamper environmental safeguards and eliminate rent control and other tenant protections. In Utah, where the state legislature had banned eminent domain for private development prior to the Kelo decision, the legislature has now modified that ban to allow the property owners affected by a proposed condemnation an opportunity to approve it by supermajority vote. As the debate moves beyond simplistic slogans, policymakers are beginning to focus on affording statutory protection to those most damaged by condemnation abuse and giving these would-be victims control over the redevelopment process.

Residents of America’s most deteriorated urban neighborhoods need intelligent, thoughtful reforms to transform eminent domain from an instrument of oppression to a means of empowerment. Instead of severing urban homeowners’ connections to the land and scattering residents to other areas, intensive urban redevelopment should enable community members to reshape their troubled neighborhood, confident that they will be able to be part of the redeveloped community. Homeowners should not be forced to sell their homes to facilitate a redevelopment plan until they have approved the plan. Even after the plan goes forward, those same homeowners and other long-time residents of the community should be given the choice of coming back to the redeveloped neighborhood or continuing their lives elsewhere. The struggles of one neighborhood in East Baltimore vividly illustrate the importance of these changes to transforming urban redevelopment into a process that truly rebuilds community. In the absence of these legal protections, residents of the impoverished East Baltimore neighborhood known as Middle East have had to fight City Hall to secure their rights both to renew and remain.

In 2002, Baltimore’s city government created East Baltimore Development, Inc. (EBDI), a private-public partnership that included Johns Hopkins University and the Annie E. Casey Foundation. The city unveiled plans for EBDI to acquire and demolish 3,300 properties that make up the Middle East neighborhood and build new townhomes and a state-of-the-art life sciences research complex. EBDI’s proponents assured neighborhood residents that they would be paid more relocation assistance money than required by the laws governing federally funded projects that caused displacement.

1 COMMENT

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