Masters of Eminent Domain

It's not often that residents of the devotedly liberal precinct of Prospect Heights, Brooklyn, agree with Antonin Scalia and Tom DeLay. But the Supreme Court's decision last month in Kelo v. City of New London struck a nerve in this neighborhood and in others across the country where governments are coming in, forcing property owners to sell, and handing over that real estate to private companies.

Neighbors here are outraged that the Sesame Street tranquility of this historic neighborhood will be disturbed by a new basketball arena and a cluster of mutant Frank Gehry high-rise apartment and office buildings -- built, in part, on land New York state is wresting from private owners. Community groups filed a brief supporting the New London homeowners fighting the seizure of their houses in hopes of stopping the arena project and others like it. They're out to defend humble neighborhoods against deep-pocketed developers and governments eager to share in the plunder.

Yet in seeking to limit public power over urban planning, well-meaning community activists are lending strength to a conservative movement that has been working to strip government of its capacity to regulate the use of land -- most aggressively, its environmental protections. Citizens who want to stop the worst abuses of eminent domain would do well to look at what they can do besides simply banning it.

The dissenters in Kelo, who objected to New London's seizure of private homes to make way for a hotel and office complex, were the right wing of the Supreme Court -- Justices Scalia, Clarence Thomas, and Sandra Day O'Connor, plus Chief Justice William Rehnquist. Conservatives in Washington and the states have since been rushing to undermine the majority's ruling. The House has passed a measure that would block the Housing and Urban Development, Treasury, or Transportation departments from getting funding for any project where eminent domain is used for private business, and there are 104 co-sponsors for another bill that would prohibit any public funding at all. Last week, California Democrat Maxine Waters joined Ohio Republican Bob Ney to introduce a bill that would block Community Development Block Grant funds for any locality that does not outright prohibit eminent domain for private development. Texas is considering a constitutional ban, and other states and cities are now moving to impose their own restrictions.

Property-rights conservatives have been losing in the Supreme Court, not just on Kelo but also with a unanimous ruling earlier this year holding that government can regulate property without proving that this "substantially advances" state interests. (At issue were Hawaii's limits on how much rent oil companies can charge at their company-owned service stations.) So they've been taking their crusade to the public. Eminent domain is the partial-birth abortion of property rights -- a practice so evidently heinous that people who might otherwise not be sympathetic to the cause are drawn in.

AARP and the NAACP filed a joint brief in support of Kelo, alongside those of the Cato Institute and Reason Foundation. They fear their constituents will only be crushed by big-money development projects, and that's a reasonable concern. In a wave dating back to the Reagan era, local governments have made countless lousy-to-corrupt tax and real-estate deals with major businesses, with little evidence of public benefits. Some of the eminent-domain seizures currently under way are astoundingly abusive of poor people. State redevelopment plans for Camden, New Jersey, for example, call for 10 percent of that severely depressed city's residents to be displaced to make way for $5.5 billion in new construction. Rapidly rising property values make land grabs hugely tempting in regions where property values are rapidly appreciating.

But most of the organizations on the front lines of the eminent-domain fight -- including the Pacific Legal Foundation and Mountain States Legal Foundation -- are pushing a broader and radical property-rights agenda. They've been working aggressively in the states to block environmental regulations, including protections for wetlands and wildlife. "Property-rights groups are trying to use sympathy for the defendants in the Kelo case to breathe new life into attacks on environmental laws," says Doug Kendall, executive director of the Community Rights Counsel. His group, funded by liberal philanthropies including the Open Society Institute and Surdna Foundation, has been advising state and local governments on their defenses of these cases.

Now local governments are also under attack for their efforts around economic development -- projects that, when they're done right, bring in urgently needed jobs and tax revenue. Of course, they're often done very, very wrong. That's why there's a lot to be learned from the success of community-activist groups in New York and L.A. to make sure that projects using eminent domain provide some real public benefit. They're showing that local residents don't have to be victims of big development projects, even those involving eminent domain. With good political organizing, they can become beneficiaries.

In south Los Angeles, where the city redevelopment authority planned to displace 75 households to make way for Super K-mart, a fast-food outlet, and a FedEx depot, the Los Angeles Alliance for a New Economy (LAANE) stepped in to hammer out a community-benefits agreement outlining terms on which development could proceed. After K-mart went bankrupt, the project went back to the drawing board and emerged with guarantees for 250 living-wage jobs, local hiring, new affordable housing, and a community center. The tenants and homeowners will still have to move, but LAANE and the development authority ensured that they will receive long-term housing subsidies that in many cases will leave them more stably housed than before. LAANE and other L.A. groups have also successfully advocated for better relocation arrangements and higher-wage jobs on two other eminent-domain projects, including the Staples Center arena. Developers and the city would rather cut such deals than face lengthy litigation.

In Brooklyn, the Association of Community Organizations for Reform Now (ACORN) incurred the wrath of Prospect Heights homeowners by coming out publicly in favor of the basketball-arena project. ACORN and allied labor unions made their support contingent on large commitments of new affordable housing, child care, and senior centers, plus requirements to hire and train local and minority construction workers for union career tracks. Displaced tenants will be relocated and then placed in the new luxury housing at their old rents. The deal could have been better, one can only imagine, if construction and service workers' unions with an interest in the project's approval had not been in the picture.

Community-benefit agreements like these are becoming more common, as a dozen-plus labor- and foundation-backed political organizing groups, from San Jose to Milwaukee to New Haven, press for jobs with better wages and a role for community residents in the planning process for big developments. But most localities still lack a way to hold government accountable for economic-development decisions. "The idea that in every case across the country, that there's an organized group to help them, that's just not the case," cautions Roxana Tynan, director of accountable development for LAANE.

But for better or worse, this kind of advocacy work is now necessary in every city where eminent domain may be used. "The Kelo decision makes every instance of the use of eminent domain a site for oppositional politics," notes Robert Lake, a professor at Rutgers University's Center for Urban Policy Research who is studying community participation in Camden's redevelopment. "This could be a good thing or a bad thing, depending on your faith in the process by which those oppositional claims are decided."

Concerned residents now have to do something other than obstruct a project. They must build alliances and political power, and take serious risks. They have to build institutions and raise money to run them. Rather than putting their energies into banning eminent domain, they ought to look at the gains of groups like LAANE and ACORN and realize that there's as much to win as to lose in the eminent-domain game.

Alyssa Katz is the editor-at-large of City Limits, New York's urban-affairs news magazine, and a Charles H. Revson Fellow at Columbia University.

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