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Imminently concerned: A local view of eminent domain
Cupertino's land use shot heard far and wide
Eminent Domain Project at Standstill Despite Ruling
Blight Makes Right: October 26, San Diego
Eminent Domain in N.J. - Now They Just Steal Land
Senate & Assembly Committee Joint Interim Hearing on Redevelopment & Blight. Weingart City Heights Library, S.D.
PROPERTIES THROUGHOUT MOST OF BERKELEY LIKELY TO BE SUBJECT TO "TAKING" BY EMINENT DOMAIN
Senate bill would blunt property ruling
Conference on Redevelopment Abuse
San Jose, California. 95103
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March 03, 2005
Your Casa Is Wal-Mart's Casa
- by Carol Lloyd, special to SF Gate
It's a ragged old cliché, but when we lay our heads down at night, there's something to be said for the American dream.
Even if not everyone can buy his or her own home, everyone can buy into the simple fairness of the idea. If you acquired a house and paid your mortgage and your taxes, you had a right to stay there until you decided to sell or were carried out feet first.
But for Suzette Kelo and her husband, the dream became a nightmare of surreal proportions when their community tried to seize their little pink house by invoking the power of eminent domain. This week, their case against New London, Conn., finally got its hearing before the U.S. Supreme Court; it's the first time the high court has addressed the limits of eminent domain in more than 50 years. Her case, along with several other high-profile court battles involving the concept, has attracted a veritable dump truck full of sympathetic press and galvanized a movement of diverse groups that are declaring war on the increasingly common practice of government seizure of one person's private property, only to hand it over to another private entity.
Property seizure has always been an option for governments when a given piece of land is needed for a public use such as a park or school, or a freeway or a military base; in return, the government is obligated to pay fair market value. But it's never been a picnic. In the 1970s, my aunt lost her home to the carving knife of Interstate 605 in Southern California, and though I was only a little girl at the time, I still recall the vehemence of her fight to save her family home from the wrecking ball.
But in the case of the Kelos and six other families who have sworn not to leave their little cottages in New London's once vibrant working-class, waterfront neighborhood of Fort Trumbull, invoking eminent domain was justified not by a need for a public use, or even to rid an area of urban blight, but by the city's desire for hard cash.
New London has hit on hard times, and after pharmaceutical giant Pfizer built a $270 million research facility on an adjacent property, the city saw the possibility that Fort Trumbull could be more than a collection of modest single-family homes. With the right mix of retail, recreation and residence, it could attract the kind of shoppers, visitors and residents whose deep pockets could help buoy the city's pitiful financial burdens through additional sales and property taxes. So the city invoked the power of eminent domain over the neighborhood and slated it to be leased to a private developer for 99 years for $1 per year. In exchange, the developer is supposed to develop a high-end office building, a hotel, condos and other as-yet-undetermined projects.
Just how the Supreme Court justices--who are expected to rule in June--are leaning remains unclear. A recent New York Times analysis suggested that they seem reluctant to second-guess the city's reasons for employing eminent domain, fearing that such a judgment would overturn decades of decisions supporting the government's right to take land for publicly beneficial, if privately owned, railroads or for economic development in areas suffering from urban blight. The Institute for Justice, the libertarian public-interest law firm that is representing the Kelos, was more optimistic, even though, despite much opposition, eminent domain has historically been difficult to fight.
Many a historian has written about the real estate highway robbery created by railroad seizures and devastation caused by the inner-city slum clearances of the 1960s and '70s, but Kelo vs. New London represents the new frontier of eminent domain--not against blighted areas, or for obvious public use, but on attractive if underbuilt (i.e., undertaxed) properties that might become highly profitable for both developers and city coffers. The laws vary from state to state; some (like California's) require that a property be declared blighted before being condemned, while others (like Connecticut's) maintain the right to condemn a property if doing so might raise the city government's tax base.
But the trends in the use of eminent domain are ominous. Since the Supreme Court ruled in 1954 that eminent domain could be invoked for private development, cities and counties around the country have increasingly used this power to remove not only obviously blighted properties but also homes, businesses and even churches that are simply not yielding as much property-tax revenues as they might if they were developed differently.
Such seizures typically happen to a certain kind of neighborhood, says Dana Berliner of the Institute for Justice, who serves as co-counsel for the Kelos. "Eminent domain is used to raise tax dollars in perfectly nice but not-as-wealthy neighborhoods," she says. "Often, those neighborhoods--like Fort Trumbull--are well located on waterfront property or near downtown, but the homes are a little bit older, so the developer doesn't have to pay as much. Often, the [homeowners] have paid off mortgages, and it's just a mix of working-class and middle-class people living on prime real estate."
How many such seizures happen every year? Because most governments don't keep track of their use of eminent domain (or their threat of it, which typically is all they need to get property owners to sell), it's impossible to know for sure. The Institute for Justice carried out a survey between 1998 and 2002 and found that 10,000 properties throughout the United States had been seized or had been threatened with eminent domain to make available for private development. But Berliner, who conducted the study for the Institute for Justice, believes that because so many cases go unreported, the number is much larger.
Perhaps many of these occurrences were justified by a public use or by assessment of the area as blighted, but in many of the cases I read about, the stories were anything but reassuring. In an era when federal and state funding is increasingly screwing cities over, municipalities have taken more and more desperate measures to shore up their declining tax base by playing cards with the devil.
Cash-strapped cities often use eminent domain in the context of making deals with big business--car dealerships, big-box stores like Wal-Mart and Costco, casinos, football stadiums or any number of developers with plans for upscale housing, hotels or retail. The targeted properties include not only homes and businesses but also churches (which, of course, don't pay taxes), and sometimes even undeveloped natural areas or parkland. In 1999, the MGM Casino proposed for Atlanta City was never built, but plans for it caused the seizure and razing of two churches. In Hurst, Texas, the properties on which 127 homes stood were taken by eminent domain and sold to a private real estate developer to make room for a mall expansion.
Sometimes, in order for seizure to be legal, the lawmakers twist the definition of blight in patently obscene ways. In Lancaster, Calif., a 19-acre city park with more than 100 trees was declared blighted before being paved to make room for a new Costco. In a case recently featured on "60 Minutes," Scenic Park, a solidly middle-class residential neighborhood in Lakewood, Ohio, faced seizure by eminent domain after the city declared the area "blighted" because the homes lacked certain criteria: three bedrooms, two baths, an attached two-car garage and central air-conditioning. The justification for the seizure? A private developer was going to build upscale condos and a shopping mall.
In the Bay Area, where market forces have tortured even the relatively affluent with the stratospheric cost of homes, land battles are generally framed as struggles between affordable-housing-hungry would-be socialists and property-righteous free marketeers. But the new face of development-friendly eminent domain goes way beyond such a polarized vision between the haves and the have-nots, the renters versus the landlords, slow growth versus smart growth. With an unholy trinity of government, developer and big business trading favors and playing Monopoly with people's homes and businesses, it makes the ordinary real estate market--free, voluntary transactions between willing parties--look like a cakewalk.
Interestingly, the growing debate over eminent domain has brought together an unlikely alliances of progressives, liberals, libertarians and conservatives--all concerned about the increasingly chummy relationship between government, big developers and big business and the slippery-slope status quo in which even private property is not longer sacrosanct. In response to the Kelo vs. New London case, there may have never been such a diverse collection of friend-of-the-court briefs. Urban-planning icon Jane Jacobs, the NAACP and the AARP weighed in next to the Southern Christian Leadership Conference, the libertarian Cato Institute, the National Association of Home Builders and the National Association of Realtors. Even though these groups may differ in their visions of an ideal world, these visions all include that battered dream of homeownership, be it ever so humble.
What is the status of eminent-domain-tinged developments in the Bay Area? Return to Surreal Estate next week to find out.Posted by Coalition Webbies at March 3, 2005 02:22 PM