Out of Control Policy Blog

Politicos, Bureaucrats and Planners Voice Support for Legal Property Theft

Lest you think that it is universally self-evident that eminent domain is a fundamental violation of property rights and human decency, the usual suspects are lining up in support of New London's position in the upcoming Kelo vs. New London Supreme Court case (for more on this case, see here, here, here and here):

    "A broad range of states, cities and economic development groups has asked the U.S. Supreme Court to uphold the New London Development Corp.'s use of eminent domain at Fort Trumbull as a proper use of the government's power to seize private land.

    Among the groups coming to the defense of the city and the NLDC, in friend-of-the-court briefs filed last week, were the National League of Cities and International Municipal Lawyers' Association; attorneys general from 13 states and the District of Columbia; and the Connecticut Conference of Municipalities."

Grab your Pepto folks, because this will make your stomach turn:

    "'The assembly of urban lands for economic growth is a 'public use,' as it eliminates the accretion of small parcels that has acted to hinder old cities like New London from competing in the market for economic development projects,' attorneys for CCM and 32 allied organizations wrote. '...As such, it plainly falls within the police powers of the State of Connecticut, which has determined that its municipalities need the power to assemble lands to create developable urban parcels that the market itself has been unable to supply.'

    The briefs argue that eminent domain is an invaluable tool for cities and states trying to further redevelopment plans, or, as in New London's case, to boost a sagging tax base.

In other words, "please allow us to continue stomping on one of our country's founding principles, not to mention human dignity, because we are absolutely devoid of any other creative ideas on how to compete in a free-market economy. If we're unable to steal Citizen X's house, then we won't be able to build a parking garage for our great new [insert big-ticket dream project here...stadium, convention center and hotel complex, big box retail giant, etc...]."

And coming from a planning background, I am truly saddened and ashamed by the APA's stance on this (perhaps I'll put the checkbook away and continue to wait to renew my membership):

    "Also filing a brief were the American Planning Association, the group's Connecticut chapter and the National Congress for Community Economic Development, who argued that the property owners would hurt efforts to develop urban plans by restricting eminent domain seizures to blighted properties.

    'The planning association and the congress ... are not particularly eager to engage in eminent domain, nor do they think it should be the first option of local governments,' said Tom Merrill, a professor of law at Columbia University who wrote the brief for the groups. 'But they think it's an important power to have in the mix of things. Severely limiting it ... could distort the process of sound planning.'"

So let me get this argument straight...on the one hand, eminent domain is a pretty extreme tool, and we'd really rather avoid using it. But on the other hand, the very process of "sound planning" itself (whatever that is) would somehow be jeopardized by limiting the use of this extreme tool to extreme cases?

I thought the purpose of urban planning was to analyze cities holisitically and develop plans and strategies to address urban needs while being sensitive to (1) the varied needs of different members of the community, and (2) the principles that undergird our free-market economy. I guess that I missed the memo from APA HQ that planners need to elevate to higher priority the picking of winners and losers in a community's efforts to compete with others for jobs, residents, revenue, etc.

I understand that reasonable minds can, in good faith, disagree on whether the needs of the many outweigh the needs of the few. Placing concrete boundaries around the hazy notion of "public use" is certainly a tricky undertaking. But there at least need to be some defined ground rules in the game, a firm line at which fundamental moral principles of fairness, respect, and justice kick in.

Nobel laureate Friedrich Hayek put it vastly more eloquently (man, I wish I'd written this):

    "The understanding that 'good fences make good neighbours,' that is, that men can use their own knowledge in the pursuit of their own ends without colliding with each other only if clear boundaries can be drawn between their respective domains of free action, is the basis on which all known civilization has grown. Property . . . is the only solution men have yet discovered to the problem of reconciling individual freedom with an absence of conflict . . . . There can be no law in the sense of universal rules of conduct which does not determine boundaries of the domains of freedom by laying down rules that enable each to ascertain where he is free to act."

To be fair, the APA doesn't represent the diversity of thought within the planning community, particularly many advocacy planners, who I'd bet are a little frightened by the idea of taking homes from poor families that can't defend themselves and giving the land to a business interest promising big tax revenue.

Expect a swift response to these briefs from the other side. No one is sitting idly on the sidelines in this game.

And look here for Reason's original amicus brief and here for Pacific Legal Foundation's brief. And as always, visit Reason's Eminent Domain Resource Center for more on this issue.

(Hat tip: Eminent Domain Watch)

Leonard Gilroy is Director of Government Reform


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