Last week we kicked things off with Kelo v. City of New London, the Supreme Court’s answer to redevelopment in modern urban America. Thanks to this decision, many Americans now believe that the key mantra of land use law is as follows: “they can take your house for any reason and give it to developers.” This simplistic approach creates an initial hurdle that land use professionals and boards alike must overcome in earning the trust of citizens who must enter and use the process. If those not familiar with the procedure believe the system is rigged against them (even though it is almost the direct opposite), it may be impossible to ever earn their trust.
The country’s legislators have fueled this belief in a broken land use system. New laws and ballot initiatives have clogged legislative agendas in the last year, each designed to nullify the Kelo decision. According to the property rights website PropertyFairness.org, twenty-four states have adopted some type of anti-eminent domain measure, prohibiting takings that are designed to stimulate economic development. For instance, Illinois’s S.B. 3086 prohibits any act of eminent domain from benefiting a private entity. However, the new law does allow the use of eminent domain for a private development if the area is declared “blighted” and the developer enters into a redevelopment agreement with the applicable locality. Likewise, Pennsylvania’s H.B. 2054/S. 881 prevents the use of eminent domain for public enterprise, but exempts the state’s current urban redevelopment framework. As for the rest of the states, they have just about all attempted to push through similar measures, some still with the potential for passage.
The ballot initiatives put before voters in twelve states this fall seek “reforms” to the eminent domain question. Already, Louisiana citizens adopted a constitutional amendment in September that is similar to the Illinois and Pennsylvania examples, with the major exemption there being port properties. However, several initiatives in the West, particularly California’s, go even further. The model for the proposal comes from Oregon's Measure 37, which requires compensation to property owners impacted by regulations under the state’s strict land use framework. Affirmed by the Oregon Supreme Court earlier this year, the measure has opened up the floodgates to claims of “regulatory takings.” California seized on this initiative, drafting Proposition 90, which would actually require “just compensation” not only for real estate, but any personal property impacted by most state regulations.
Behind all of these legislative actions is the enduring rage of Kelo. Its profound impact can be felt in every state in the Union, as each tries to interpret, and manipulate its meaning. But underneath this vocal campaign is a potentially more harmful impact on the existing American land use system. Sure, there have been abuses on the part of localities in exercising eminent domain, but the call for “reform” also threatens the inherently democratic nature of the system itself, and the control over one’s destiny that is the hallmark of the land use decision making process. Eminent domain can play a critical role in redeveloping underutilized urban areas. But more importantly, the bright focus on eminent domain, with it being such a small part of the overall land use mechanism, puts undue emphasis upon it. With this issue as the “face” of land use, it paints a picture that may lead to further erosion of local autonomy, a process already progressing across the nation.
Proponents of these eminent domain initiatives tend to expound on the need for autonomy of the property owner. Ironically, these plans bring further governmental oversight to the process, and take the decision making out of the hands of local actors. In fact, these initiatives hand the decision making largely to the courts, the same branch of government that handed down Kelo in the first place. The question I pose then is this, in the context of the larger land use process: who is best to look after our land use needs? Is it the local boards and legislative bodies? Is it property owners, as regulated by the courts? Or is it a more regional type approach, as is the trend towards which most of America is heading? Perhaps some combination of these choices is the best approach?
Next time, we’ll move beyond Kelo to discuss the question of regionalization, and how it impacts another “hot button” issue when it comes to land use: urban sprawl.
The country’s legislators have fueled this belief in a broken land use system. New laws and ballot initiatives have clogged legislative agendas in the last year, each designed to nullify the Kelo decision. According to the property rights website PropertyFairness.org, twenty-four states have adopted some type of anti-eminent domain measure, prohibiting takings that are designed to stimulate economic development. For instance, Illinois’s S.B. 3086 prohibits any act of eminent domain from benefiting a private entity. However, the new law does allow the use of eminent domain for a private development if the area is declared “blighted” and the developer enters into a redevelopment agreement with the applicable locality. Likewise, Pennsylvania’s H.B. 2054/S. 881 prevents the use of eminent domain for public enterprise, but exempts the state’s current urban redevelopment framework. As for the rest of the states, they have just about all attempted to push through similar measures, some still with the potential for passage.
The ballot initiatives put before voters in twelve states this fall seek “reforms” to the eminent domain question. Already, Louisiana citizens adopted a constitutional amendment in September that is similar to the Illinois and Pennsylvania examples, with the major exemption there being port properties. However, several initiatives in the West, particularly California’s, go even further. The model for the proposal comes from Oregon's Measure 37, which requires compensation to property owners impacted by regulations under the state’s strict land use framework. Affirmed by the Oregon Supreme Court earlier this year, the measure has opened up the floodgates to claims of “regulatory takings.” California seized on this initiative, drafting Proposition 90, which would actually require “just compensation” not only for real estate, but any personal property impacted by most state regulations.
Behind all of these legislative actions is the enduring rage of Kelo. Its profound impact can be felt in every state in the Union, as each tries to interpret, and manipulate its meaning. But underneath this vocal campaign is a potentially more harmful impact on the existing American land use system. Sure, there have been abuses on the part of localities in exercising eminent domain, but the call for “reform” also threatens the inherently democratic nature of the system itself, and the control over one’s destiny that is the hallmark of the land use decision making process. Eminent domain can play a critical role in redeveloping underutilized urban areas. But more importantly, the bright focus on eminent domain, with it being such a small part of the overall land use mechanism, puts undue emphasis upon it. With this issue as the “face” of land use, it paints a picture that may lead to further erosion of local autonomy, a process already progressing across the nation.
Proponents of these eminent domain initiatives tend to expound on the need for autonomy of the property owner. Ironically, these plans bring further governmental oversight to the process, and take the decision making out of the hands of local actors. In fact, these initiatives hand the decision making largely to the courts, the same branch of government that handed down Kelo in the first place. The question I pose then is this, in the context of the larger land use process: who is best to look after our land use needs? Is it the local boards and legislative bodies? Is it property owners, as regulated by the courts? Or is it a more regional type approach, as is the trend towards which most of America is heading? Perhaps some combination of these choices is the best approach?
Next time, we’ll move beyond Kelo to discuss the question of regionalization, and how it impacts another “hot button” issue when it comes to land use: urban sprawl.
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