On the Topic of Eminent Domain

The recent Supreme Court ruling on eminent domain, which validated the authority of governments to take private property for the elusive “public purpose” of economic development, has been heralded as an important victory for city planners and political interests. The narrow 5-4 decision, however, underscores the justifiable decisiveness this issue provokes, as well as the careful balancing act faced by our courts, leadership, and citizenry.  Whether one believes that governments have run amok, obliterating private property rights, or that polities must have the ability to back redevelopment projects that promise considerable if peripheral benefits, the decision illustrates that this issue cuts to the bone of American liberties and ideals, justice and injustice, and, less seductively in an ideological sense, the inability or unwillingness of American markets to nurture our poorest urban economies.

Critics of eminent domain make an alluring appeal to the storied concept of land rights established long ago in Europe and imported to America.  The narrative holds that land justly acquired shall remain in private hands, and that governments or any other party will pay market or above market values if and only if owners are willing to sell. That cash-strapped municipal governments, and the communities they serve, are often unable to afford these rates or acquire these lands is incidental; under this “fair shakes” mentality, if the ideal is right, outcomes too are just. One inescapable reality remains, however—that capital, whether from the public, private, or nonprofit sectors, too rarely finds its way to those places that need it most.  In an ideal world of political, economic, and social relationships, where rags always turn to riches, no one would be displaced, and public and private investments would be spread evenly throughout our varied places.  In the real world, however, politics is politics, and business is business, and neither in isolation takes care of impoverished neighborhoods particularly well.  The ability to provoke large-scale change needs to be one tool in the government shed, rarely used but available.

These are questions, though, that need be continually raised, challenged, and newly answered.  Governments have unquestionably gotten bolder in their envisioning of the “public use,” expanding these from the provision of infrastructure and public facilities to the conveyance of land to private interests with the expectation of social benefits. While this enlarged logic does not open fully a door to a wild state where property rights are ignored wholesale, and where any property in any community is vulnerable, an onus must remain on governments, developers, planners, and communities to work through these issues thoroughly and through an open and evolving dialogue that seeks common ground. Beyond just compensation and the availability of legal recourse, the courts have been clear that takings should be carefully considered within the context of a comprehensive plan (significantly informed by the community in question), and with clear and quantifiable notions regarding the economic benefit to be derived. Further, to truly benefit communities, the planning process need be combined with stringent safeguards designed to include those displaced from their homes in any new development, or, at the very least, must include provisions for payment and relocation that does not damage existing social and economic linkages.  The take-home point is that this action should not be an isolated one—instead it should exist within a system of policies and plans that aim towards equity as well as progress.  Anything less is an affront to the decency intended by urban planning, and should be viewed with extreme suspicion.

The American political and social environments, however, encourage that one choose a side and defend it with vigor and certainty, regardless of the peskiness of context. No room is allowed for exploring the considerable gaps between grand ideological positioning and the complicated work of city building.  Yet while the bifurcation of the court and public are quite logical, as the questions involved are relevant and real, it is a careful balance that is sought, one where quality projects cannot be derailed by a single stalwart owner and where government cannot wantonly destroy communities.  The stark polarizations that our sweeping ideological endorsements create ignore on either side the fact that these debates are exactly and exclusively about particularized contexts and places, and in many cases regard sadly blighted and unchanging ones.

Trading the certainty of a known present, regardless of how seemingly undesirable, for an unknowable future is certainty a terrifying prospect, and the call from a property owner proud of his or her home, no matter how it is viewed by public officials or the private sector, should never be disregarded. Furthermore, the New London case should not be seen as cause for a newfound government boldness, where takings are presumed easy or beyond challenge.  Instead it should be a call for officials to recognize the importance of and dangers inherent with these powers, and a cause to install means for ensuring quality planning, substantial public input, and thorough analyses that use common metrics, all of which would support a clear vision of community direction and benefit.

The majority in the seminal case of Hadacheck v. Sebastian concluded that to not allow communities and governments the right to infringe upon the rights of private owners would “fix a city forever in its primitive condition.” [1] To choose too firm a side on the issue of eminent domain, where it is always defensible or indefensible, would require that the law too be fixed in a primitive and static condition. The scales of justice, while tilting subtly from side to side, must remain in motion, seeking always a proper and modern balance.

[1] U.S. Supreme Court.  1915.  Hadacheck v. Sebastian.  239 U.S. 394.  Retrieved July 19, 2005 from: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=239&invol=394