Is post-Kelo eminent domain reform bad for the poor?

Northwestern University Law Review

Volumn 101, Issue 4, 2007, Pages 1931-1943

  Somin, Ilya ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 37749022808     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (82)

1. David Dana, The Law and Expressive Meaning of Condemning the Poor after Kelo, 101 NW. U. L. REV. 365 (2007), 101 NW. U. L. REV. COLLOQUY 5 (2006), http://www.law.northwestem.edu/lawreview/colloquy/2006/2/ (subsequent citations refer to 101 NW. U. L. REV. 365 (2007)).
2. Id. at 365.
3. 545 U.S. 469 (2005).
4. See UTAH CODE ANN. § 17C-1-202 (amended May 1, 2006) (outlining powers of redevelopment agencies and omitting the power to use eminent domain for blight alleviation or development);
5. see also Henry Lamb, Utah Bans Eminent Domain Use by Redevelopment Agencies, ENV'T NEWS, June 1, 2005, available at http://www.heartland.org/article.cfm?artID=17162 (describing the politics behind the Utah law).
6. I discuss this in much greater detail in a recent paper. See Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo (George Mason Law & Econ. Research Paper No. 07-14, 2007), available at http://ssrn.com/abstract=976298.
7. For a more detailed analysis of these reform laws and the reasons why they are unlikely to have any meaningful effect, see id. at 15-21.
8. See H.B. 318, 24th Leg., Reg. Sess. (Alaska 2006) (enacted July 5, 2006) (exempting preexisting public uses declared in state law from a ban on economic development takings);
9. ALASKA STAT. § 18.55.950 (2006) ('"[B]lighted area' means an area, other than a slum area, that by reason of the predominance of defective or inadequate street layout, faulty lot layout in relation to size, adequacy, accessibility, or usefulness, unsanitary or unsafe conditions, deterioration of site or improvements, tax or special assessment delinquency exceeding the fair value of the land, improper subdivision or obsolete platting, or the existence of conditions that endanger life or property by fire and other causes, or any combination of these factors, substantially impairs or arrests the sound growth of the municipality, retards the provision of housing accommodations, or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare in its condition and use."). Professor Dana interprets this statute as failing to address blight condemnations "at all." Dana, supra note 1, at 375. However, the text of the law does in fact exempt blight condemnations from its scope by exempting all preexisting public uses declared in state law, of which blight is one.
10. See H.B. 1411, 65th Gen. Assem., Reg. Sess. (Colo. 2006) (enacted June 6, 2006) (allowing condemnation for "eradication of blight");
11. COLO. REV. STAT. § 31-25-103(2) (2006) (defining "blight" to include any condition that "substantially impairs or arrests the sound growth of the municipality, retards the provision of housing accommodations, or constitutes an economic or social liability, and is a menace to the public health, safety, morals, or welfare").
12. See S.B. 1944, § 523.271.2, 93rd Gen. Assem., Reg. Sess. (Mo. 2006) (enacted July 13, 2006) (exempting blight condemnations from the ban on "economic development" takings);
13. MO. REV. STAT. § 100.310(2) (2006) (defining "blight" as "an area which, by reason of the predominance of defective or inadequate street layout, insanitary or unsafe conditions, deterioration of site improvements, improper subdivision or obsolete platting, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, retards the provision of housing accommodations or constitutes an economic or social liability or a menace to the public health, safety, morals, or welfare in its present condition and use").
14. See L.B. 924, 99th Leg., 2nd Sess. (Neb. 2006) (enacted Apr. 13, 2006) (exempting "blight" condemnations from ban on economic development takings);
15. NEB. REV. STAT. § 18-2103 (2006) (defining blight to include any area in a condition that "substantially impairs or arrests the sound growth of the community, retards the provision of housing accommodations, or constitutes an economic or social liability" and has "deteriorating" structures).
16. See H.B. 1965, § 2.1, 2005 Gen. Assem., Reg. Sess. (N.C. 2006) (enacted Aug. 10, 2006) (exempting blight condemnations from restrictions on economic development takings and stating that '"[b]lighted area' shall mean an area in which there is a predominance of buildings or improvements (or which is predominantly residential in character), and which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, unsanitary or unsafe conditions, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, substantially impairs the sound growth of the community, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime, and is detrimental to the public health, safety, morals or welfare").
17. See S.B. 167, § 1, 126th Gen. Assem., Reg. Sess. (Ohio 2005) (exempting "blight" condemnations from temporary moratorium on economic development takings);
18. On. REV. CODE ANN. § 303.26(E) (West 2006) (defining blight to include "deterioration" of structures or where the site "substantially impairs or arrests the sound growth of a county, retards the provision of housing accommodations, or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare").
19. See S.B. 7, 79th Leg., 2nd Sess. (Tex. 2005) (enacted Sept. 1, 2005) (exempting "blight" condemnations from the ban on economic development takings);
20. TEX, LOC, GOV'T CODE ANN. § 374 (Vernon 2006) (defining a "blighted area" as one that "because of deteriorating buildings, structures, or other improvements; defective or inadequate streets, street layout, or accessibility; unsanitary conditions; or other hazardous conditions, adversely affects the public health, safety, morals, or welfare ... or results in an economic or social liability to the municipality").
21. See S.B. 246, 2005-06 Leg., Reg, Sess. (Vt. 2006) (exempting blight condemnations from ban on economic development takings, and defining blight to include any planning or layout condition that "substantially impairs or arrests the sound growth of a municipality, retards the provision of housing accommodations or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare").
22. See H.B. 4048, 77th Leg., Reg. Sess. (W. Va. 2006) (enacted Apr. 2006) (exempting blight condemnation from the ban and defining blight to include an area that, for any number of factors such as deterioration or inadequate street layout, "substantially impairs or arrests the sound growth of a municipality, retards the provision of housing accommodations or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare").
23. For a discussion of blight exemptions in these states, see Somin, supra note 5, at 18-22.
24. tá. at 21-22.
25. Id. at 26-28.
26. See In re W. 41st St. Realty v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (N.Y. App. Div. 2002).
27. See City of Las Vegas Downtown Redev. Agency v. Pappas, 76 P.3d 1, 12-15 (Nev. 2003).
28. See Somin, supra note 5, at 10-14.
29. See H.B. 1567, 2006 Leg., Reg. Sess. (Fla. 2006) (enacted May 11, 2006).
30. See Nev. Ballot Question 2 (enacted Nov. 7, 2006 as NEV. CONST, art. I, § 22 §§ 1) (forbidding the "direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another private party");
31. N.D. Measure 2 (enacted Nov. 7, 2006 as N.D. CONST, art. I, § 16) ("[P]ublic use or a public purpose does not include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health. Private property shall not be taken for the use of, or ownership by, any private individual or entity, unless that property is necessary for conducting a common carrier or utility business.").
32. H.B. 1080, 2006 Leg., Reg. Sess. (S.D. 2006) (signed into law Feb. 27, 2006). Professor Dana claims that South Dakota's law doesn't address blight condemnations "at all." Dana, supra note 1, at 375. However, private-to-private blight condemnations are surely covered by the law's general ban on private-to-private takings of any kind.
33. S.B. 323, §§ 1-2, 2006 Leg., Reg. Sess, (Kan. 2006) (signed into law May 18, 2006).
34. See Somin, supra note 5, at 28-33 (discussing these laws in detail).
35. Id. at 27-30.
36. Id. at 26-29.
37. See. e.g., Ilya Somin, Controlling the Grasping Hand: Economic Development Takings After Kelo, 15 SUP. CT. ECON. REV. 183 (2007);
38. Wendell E. Pritchett, The "Public Menace " of Blight: Urban Renewal and the Private Uses of Eminem Domain. 21
39. YALE L. & POL'Y REV. 1 (2003).
40. The eleven states arc Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, Montana, Ohio, Oklahoma, South Carolina, and Washington.
41. See City of Little Rock v. Raines, 411 S.W.2d 486, 494-95 (Ark, 1967) (private economic development project not a public use);
42. Baycol, Inc. v. Downtown Dev. Auth.. 315 So,2d 451, 457 (Fla. 1975) (holding that a '"public [economic] benefit' is not synonymous with 'public purpose' as a predicate which can justify eminent domain");
43. Sw. III. Dev. Auth. v. Nat'l City Envtl., L.L.C., 768 N.E.2d 1, 9-11 (Ill. 2002) (holding that a "contribu[tion] to positive economic growth In the region" is not a public use justifying condemnation), cert, denied, 537 U.S. 880 (2002);
44. City of Owensboro v. McCormick, 581 S.W.2d 3, 8 (Ky. 1979) ("No 'public use' is involved where the land of A is condemned merely to enable B to build a factory.") (citation omitted); Opinion of the Justices, 131 A.2d 904, 906 (Me. 1957) (holding that private "industrial development" to enhance economy is not a public use); County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004) (overruling Poletown and holding that economic development takings are unconstitutional);
45. City of Bozeman v. Vaniman, 898 P.2d 1208, 1214 (Mont. 1995) (holding that a condemnation that transfers property to a "private business" is unconstitutional unless the transfer to the business is " insignificant" and "incidental" to a public project);
46. City of Norwood v. Horney, 853 N.E.2d 1115, 1141-42 (Ohio 2006) (following Hathcock in holding that "economic benefit" alone does not justify condemnation);
47. Bd. of County Comm'rs of Muskogee County v. Lowery, 136 P.3d 639, 642 (Okla, 2006) (holding that "economic development" is not a "public purpose" under the Oklahoma Constitution);
48. Ga. Dep't of Transp. v. Jasper County, 586 S.E.2d 853, 856 (S.C. 2003) (holding that even a substantial "projected economic benefit" cannot justify condemnation); Karesh v. City of Charleston, 247 S.E.2d 342, 345 (S.C. 1978) (striking down a taking justified only by economic development because such condemnations do not ensure "that the public has an enforceable right to a definite and fixed use of the property" (quoting 29 C.J.S, Eminent Domain § 31));
49. In re City of Seattle, 638 P.2d 549, 556-57 (Wash. 1981) (disallowing plan to use eminent domain to build retail shopping as not for a public use);
50. Hogue v. Port of Seattle, 341 P.2d 171, 187 (Wash. 1959) (denying condemnation of residential property where government sought to "devote it to what it considers a higher and better economic use"). In some of these states, the wording of the state constitution restricts private-to-private condemnations much more explicitly than does the Federal Takings Clause.
51. See, e.g., Muskogee, 136 P.3d at 651-52 (discussing differences between the wording of the Oklahoma Constitution and that of the Fifth Amendment and using the distinction as justification for interpreting the state takings clause in a way contrary to the U.S. Supreme Court's interpretation of the Federal Takings Clause in Kelo). The Norwood case did, however, suggest that some blight condemnations would violate the state constitution.
52. See Ilya Somin, Blight Sweet Blight, LEGAL TIMES, Aug. 14, 2006, at 42 (discussing this aspect of Norwood).
53. See Ilya Somin, Overcoming Poletown;
54. County of Wayne v. Hathcock, Economic Development Takings, and the Future of Public Use, 2004 MICH. ST. L. REV. 1005, 1011-16.
55. The Poletown condemnations were upheld in Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981), overruled by Hathcock, 684 N.W.2d at 765.
56. Dana, supra note 1, at 380-81.
57. Id. at 381.
58. Id. at 380.
59. Center for Economic and Civic Opinion at University of Massachusetts/Lowell, The Saint Index Poll, Oct.-Nov. 2005 [hereinafter Saint Index] (unpublished survey, on file with author). Question wording: "The U.S. Supreme Court recently ruled that local governments can take homes, business and private property to make way for private economic development if officials believe it would benefit the public. How do you feel about this ruling?" Id.
60. One might expect this group to be the least opposed to economic development takings because it is highly unusual for property belonging to the wealthy to be condemned for transfer to other private parties.
61. Saint Index, supra note 35.
62. Dana, supra note 1, at 380-81.
63. Saint Index, supra note 35.
64. Id.
65. Saint Index, supra note 35. Question wording: "The U.S. Supreme Court recently ruled that local governments can take homes, business and private property to make way for private economic development if officials believe it would benefit the public. How do you feel about this ruling?" Id.
66. The wording of this survey is a bit unfortunate because it speaks of banning condemnations for "private development," whereas the standard rationale for Kelo-style condemnations is that they benefit the general public, not just "private" interests. However, such differences in wording seem to have only a minor impact on survey respondents' expressed attitudes to economic development takings. For more detailed discussion, see Somin, supra note 5, at 6-7 & n.34.
67. Saint Index, supra note 35.
68. Id.
69. Saint Index, supra note 35. Question wording: "Some states are considering enacting laws that will stop state and local governments from taking private property for private development projects. Would you... [Strongly Support, Support, Oppose, Strongly Oppose, or don't know] such laws?" Id. Only two respondents were recorded in this category.
70. Dana, supra note 1, at 380.
71. Id. at 370;
72. see also Pritchett,
73. supra note 29, at 14-43 (describing the history of this rationale).
74. Dana, supra note 1, at 381-82.
75. See Somin, supra note 5, at 37-43 (discussing political ignorance about eminent domain policy and its role in the KeIo backlash in great detail).
76. Id. at 38-39.
77. For example, a 2003 survey showed that 70% of respondents were unaware of the passage of President Bush's massive prescription drug bill, the largest new government program in almost forty years. See Ilya Somin, Political Ignorance is No Bliss, Cato Institute Policy Analysis No. 525, Sept. 22, 2004, at 6 tbl.1. This paper also gives many similar examples of widespread ignorance about major policy issues.
78. Janice Nadler et al., Government Takings of Private Property: Kelo and the Perfect Storm, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 23 tbl.4 (Nathan Persily et al. eds., forthcoming 2007), available at http://ssrn.com/abstract-962170.
79. See Somin, supra note 29, at 267-70.
80. Since World War II, some 3.6 million mostly poor Americans have been displaced by "urban renewal" condemnations alone. Id. at 269.
81. Id. at 204-10.
82. Id. at 270.