You Got to Be Kidding Me!

A Kelo Update – More Strange Bedfellows

Posted in Politics, Urban Planning by Stacy McMahon on March 6, 2005

There isn’t a lot of news out of the SCOTUS arguments yet. Several op-ed columnists and editorial pages have weighed in, all predictably on the side of the little guy. More interesting is the list of amicus briefs filed in the case, which has some distinguished names on it. Jane Jacobs has this to say:

See, e.g., JACOBS, DEATH AND LIFE OF GREAT AMERICAN CITIES […] (describing massive harms inflicted on poor neighborhoods by the use eminent domain in urban renewal programs). Indeed, amica believes that the clear-cutting of neighborhoods like Fort Trumbull is antithetical to the development of healthy, vibrant mixed-use communities she espouses.

NAR and the NAHB have weighed in on Kelo’s side too:

[…] NAHB recognizes that housing will almost never afford a community with the economic development benefits that a commercial application will. If economic development as a sole justification for public use is decided using a rational basis test with deference to local legislative bodies, then the door is left open for local governments to abuse their eminent domain powers and take developable land from NAHB members as they could from any other property owner. Therefore, NAHB must adhere in this case to its long-standing objective to protect private property rights from abuses by local government.

Of course the housing in the proposed project is just a sideshow to the economic development piece, which is the Pfizer research headquarters. It’s hard to argue that that won’t bring a lot of new money, and new blood, to the city.

John Norquist of the Congress for New Urbanism argues that not only can redevelopment easily occur without condemning property, but that taking away the tool of eminent domain will help weed out marginal projects:

Moreoever, where government wishes to stimulate economic development, there is a vast array of development incentives available to accomplish that without resort to the lend-lease of its eminent domain power for land assembly. Such speculative over-use of eminent domain may actually have a chilling effect on the rigorous economic screening of projects naturally occurring in the private marketplace, and may result in an increased number of unsustainable development projects.

I don’t know Norquist’s politics, but I wouldn’t be surprised if this near-full throated cheer for private markets is a little jarring to parts of his social circle. Anyhow, it’s not every day that you see Jacobs, the NAACP, AARP, or the Farm Bureau Foundation in the same trenches with Cato, the Reason Foundation, Goldwater Institute or the Property Rights Foundation (among others). Apart from NAHB, it’s not too hard to see why most of those would oppose the Fort Trumbull project. It’s neither old-style festung downtown nor real new urbanism. Nobody’s likely to be emotionally invested in it, though they’d be smart to be financially invested; from the description it’s exactly the kind of 3/4-assed ‘new urban’ infill that’s blazing hot in Washington, Atlanta, and other major east coast suburban environs.

Which may explain the most interesting name on the short list of briefs opposing the plaintiff: APA:

Eminent domain is concededly an unsettling power, and is subject to misuse or overuse if not properly constrained.

But they call the petitioners’ interpretation of ‘public use’ a “novel and restrictive approach” inconsistent with longstanding legal interpretation. I don’t know enough to say whether that’s a tenable position; my impression is that there is legal precedent for condemning non-blighted property in order to redevelop it, but that it isn’t very deep or longstanding in the scheme of things.

Strange bedfellows indeed…

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