Wade Yeoman

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Wade Yeoman ...

    Wade Yeoman

    Phil. 401

    Eminent Domain: The Scourge of Urban Renewal

    The Fifth Amendment to the United States Constitution states that “[no person]

    shall be deprived of life, liberty, or property without due process of law; nor shall private

    1property be taken for public use, without just compensation.” The taking of a citizen‟s

    private property by the government is more commonly known today as eminent domain.

    Few would argue that the founding fathers viewed the process of eminent domain as

    something that, at its very best, is a necessary evil. The seizure of a person‟s private

    property was meant to be a last resort that would facilitate the construction of a road or

    public works building. Eminent domain has evolved, however, into one of the main tools

    used by state and city governments during urban renewal and redevelopment projects.

    The major shift in the way eminent domain was utilized was sparked by the 1954

    United States Supreme Court decision, Berman v. Parker. The District of Columbia had

    passed in 1945, a redevelopment act, in which the city committed itself to the elimination

    of slum and blighted areas in the community. The act also gave the city the authority to

    sell any condemned land to private interests for commercial and private use, as long as

    economic growth was encouraged. The lawsuit was between a grocery storeowner,

    asserting that their business was not blighted or contributing to slum, and the city of

    Washington D.C. The Supreme Court overturned an appellate court decision, which

    favored the grocer, defending its ruling with the following opinion from Justice Douglas:

    The experts concluded that if the community were to be healthy, if it were not to

    revert again to a blighted or slum area, as though possessed of a congenital disease, the

    area must be planned as a whole. It was not enough, they believed, to remove existing

    buildings that were unsanitary or unsightly. It was important to redesign the whole area

    so as to eliminate the conditions that cause slumsthe over-crowding of dwellings, the

1 Constitution of the United States, Amendment 5


    lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the This decision had many underlying effects, but it clearly made three very

    lack of light and air, the presence of outmoded street patterns. It was believed that the

    piecemeal approach, the removal of individual structures that were offensive, would be important assertions in favor of the government. The first assertion was that, as long as only a palliative.

    blight existed, the city had the right to condemn properties for a redevelopment project.

    The second and more staggering precedent set by this Supreme Court decision was that

    blight did not have to encompass the entire area considered for the project. Certain

    citizens, with economically vibrant establishments, would have to sacrifice their private

    property for the benefit of the entire area. Last, the city had the right to take any property

    3it had condemned and sell it to private interests for economic development.

     Berman v. Parker was the landmark case that changed eminent domain from a necessary evil into an integral strategic tool for urban renewal. Urban renewal and

    redevelopment projects were in the headlines during the decades following the decision,

    mostly due to the absolute failures that occurred. Statistics on the implementation of

    eminent domain during this time period are nearly impossible to find, however, because

    most states do not keep record of their occurrence. It took almost thirty years for eminent

    domain and urban renewal to grasp a significant amount of attention again, when the

    Michigan Supreme Court heard the case of Poletown v. City of Detroit. During the early

    1980‟s the city of Detroit was looking for a way to create some economic growth.

    General Motors approached the city council with a proposal to expand its factory in

    Detroit, but it had one problem. General Motors did not own the land it needed in order

    to expand. A small immigrant community, Poletown, stood in the location where

     2 Steven M. Greenhunt, Abuse of Power, How the Government Misuses Eminent Domain (Santa Ana:

    Seven Locks Press, 2004), 101. 3 Ibid, 98-102.

General Motors wanted to build. The city took the initiative and condemned the

    community through eminent domain after the majority of inhabitants refused to sell. The

    town took the city to court over the matter, and the Michigan Supreme Court found in

    4favor of the city of Detroit.

     The significance of Poletown v. Detroit is twofold. This case differs from that of

    Berman v. Parker in that the condemnation of 1,300 homes, 140 businesses, and six churches, affecting 4,200 residents, occurred after a corporation approached the local

    government and requested the specific property. The courts allowed the condemnation

    on the grounds that more jobs would be created, which would lead to economic growth.

    There was no finding that blight or slum conditions existed. The creation of more jobs

    5was the only justification needed.

    Cities tend to follow the lead of other cities when implementing new legislation

    and spurring economic growth. This decision occurred at the end of a tough economic

    recession across the nation, which left many cities fiscally downtrodden. Most places

    were looking for quick fixes, and the example of Detroit left a lasting impression. Cities

    across the nation saw that they could negotiate with corporations, using land that was the

    property of its citizenry. Once an agreement was reached between the local government

    and the corporation, the city could seize any land they wanted, leaving no recourse for the

    original owner, the individual citizen. The proof of cities copying this practice lies in the

    numbers. From 1998 to 2002 alone, over 10,000 condemnations of property were

    6reported in the newspapers. Twenty years after the Michigan case, the use of eminent

     4 Samuel R. Staley and John P. Blair, “Eminent Domain, Private Property, and Redevelopment,” Reason

    Foundation (February, 2005): 7. 5 Greenhunt, 117. 6 Staley, 4.

domain is still rampant. What dangers does this pose towards the sanctity of private


Abuse of Eminent Domain

     The cases in Washington D.C. and Detroit changed the face of eminent domain

    and urban renewal drastically and gave government officials a large amount of power.

    While they did not force anyone into corruption or deception, they did create the potential.

    Even if the rules are skewed in favor of one party, no advantage is gained until that party

    uses or abuses the power given them.

    A demonstration of this abuse of power took place in Garden Grove, California.

    The mayor of Garden Grove, Bruce Broadwater (nicknamed the “Bulldozer”) was tired

    of tourists neglecting his city and traveling up the road to Anaheim, where the major

    7theme parks are located. He wanted to build a theme park in his town, so he chose a middle-class neighborhood that bordered the preexisting redevelopment area for the

    location. The city was under legal obligation to inform the inhabitants of the

    neighborhood that they had been zoned into the redevelopment area. The inhabitants

    received a letter from the City Planning Commission on January 28, 2002, which said the


     In connection with the proposed amendment to the Redevelopment Plan for the

    Garden Grove Community Development Project being prepared by the Garden Grove

    Agency for Community Development (“The Agency”), the Planning Commission and the

    Agency approved preliminary boundaries for the area proposed to be added to the Project

    (the „added Territory‟). Thereafter, in January 2002, the preliminary boundaries of the

    Added Territory were modified by the Planning Commission and Agency, which

    modified Added Territory boundaries are shown on the accompanying map.8

7 Greenhunt, 29 8 Ibid., 31.

The letter sent to the inhabitants of the neighborhood in Garden Grove was almost

    impossible to understand. There was not one statement saying that the neighborhood was

    zoned into the redevelopment district. A map was enclosed that showed the

    neighborhood inside the redevelopment zone, leaving the receiver to figure it out for

    himself. What the letter also fails to mention is that the members of the town have a state

    right to elect a committee to represent the neighborhood and a public meeting about the

    9redevelopment project of which they had become a part.

     In May 2002, the city was required to send another letter to inform the inhabitants

    of the neighborhood that redevelopment area was about to go in front of the City Council

    for final approval. The letter that the citizens received stated the following:

     The Amendment is intended to be a tool to enable the Agency to continue its

    efforts to promote and implement community development projects and programs which

    lessen or eliminate existing blight and prevent the spread of new blight within the

    Existing Project and to initiate similar community development activities within the

    10Added Territory.

On its face, the letter indicated that the city council was creating a win-win situation. The

    government is eliminating blight; they want to encourage community development. Tax

    dollars were being put to good use. What it did not state clearly was that the homes of

    recipients of the letter were considered blight, and that the city council was about to

    approve their destruction to clear the way for a new theme park.

     Despite their lack of transparency, both of these letters were perfectly legal. The

    city was required by state law to send letters, in a timely fashion, informing the citizens

    of what was happening. The city met these simple requirements. Fortunately for the

    inhabitants of the targeted neighborhood, a few savvy people among them hired lawyers

     9 Ibid. 10 Ibid., 32.

    11to fight the condemnation. After a multi-year legal standoff, the community prevailed.

    The city council of Garden Grove, however unethical their deception was, did not break any rules. They simply played the game to their advantage. One must ask, how much time and money (the city did not have to pay the community's legal fees, just court costs) could have been saved if the city had been forced to play the game straight?

     Garden Grove, California, is an example of how cities tell the truth in the most obscure way possible. Lakewood, Ohio, an older neighborhood just outside of Cleveland that lies on a bluff overlooking the Rocky River, is an example of the local government making up information when deemed beneficial. The people of Lakewood loved their serene setting and the fact that the area had a small-town feel. However, the city officials liked the setting just as much as the inhabitants of the neighborhood. The city put a portfolio together on the riverside area hoping to attract a contractor or developer who would be interested. A company out of Cleveland, CenterPoint Properties, proposed a plan that would bring in a projected extra 30 million dollars in annual tax revenue. The city jumped at this proposal, telling the Cleveland based company that it would

    12implement eminent domain on any homeowner that refused to sell.

     After deciding to condemn the neighborhood, the City Council had to come up with a reason for implementing eminent domain. The city decided to declare the area that would not sell, West End, blighted. The West End was composed mostly of homes built

    13at the turn of the century and apartments built during the 1950‟s and 1960‟s. A

    consulting firm the city hired determined there were blight and deteriorating conditions:

     11 Ibid. 12 Staley, 20. 13 Ibid.

     “[The West End] has sufficient deficiencies, which together are detrimental to

    the public health, safety and welfare and which impedes the sound growth, planning and

    economic development of the City of Lakewood. Substantial portions of the community 14development area met the definitions of blight as defined in the city‟s ordinances.

     Chapter 153 of the city‟s codified ordinances defines something as blighted or

    deteriorated when an area is, “conducive to the ill health, transmission of disease, infant

    mortality, juvenile delinquency, and crime, and are detrimental to the public health,

    15safety, morals, and general welfare.” When the city received this finding from the consultant, D.B. Hart, they had the ability to proceed with the condemnation process.

     The wording of the Lakewood city ordinance‟s definition for blight was clearly both vague and arbitrary. What exactly contributes to ill health or juvenile delinquency?

    Who defines morals and what may be detrimental to them? There were absolutely no

    concrete measurements for blight or deterioration. In the absence of a clear standard,

    anything could be identified as detrimental to public health or safety.

     The consultant hired by Lakewood did develop new standards for blight and

    deterioration when evaluating the West End. An “inordinate amount of traffic accidents”

    16was an example of blight and deterioration that afflicted the area. Rather than putting

    up street signs, or focusing on certain intersections that were especially dangerous, the

    city decided it would be more efficient to seize people‟s private property and rebuild the entire neighborhood. Another example of blight that was cited in the report, was the fact

    that some of the garages in the neighborhood were not attached to the homes they

    17belonged to. It was not made clear how this would lead to infant mortality and juvenile

    delinquency, or moral decay.

     14 Ibid., 21. 15 Ibid. 16 Ibid. 17 Greenhunt, 13.

     The people of Lakewood were clearly unhappy with the actions of their local

    government, for when election time came around a new mayor was voted in and the

    18redevelopment project was canceled. The people of Lakewood were aided in their

    battle, however, by the non-profit legal organization, the Institute for Justice, which

    operates out of Washington D.C. Without help from the outside, the inhabitants of the

    West End would have been left to the whim of the government and its consultant.

Historic Bowling Green Revitalization Project

     These two cases are important because although both city governments acted in a very unethical manner, neither acted illegally. What must be determined is whether the

    same kind of egregious actions could take place in the Historic Bowling Green

    Revitalization Project. No accusation of corruption or deception is meant to be directed

    towards the city council or the planning commission, but has the system for

    redevelopment been established in a manner that could allow property rights to be

    severely damaged.

     Before any conclusion can be drawn on the safety of property rights in downtown

    Bowling Green, the goal of the redevelopment project must first be known. Will Linder

    and Associates, the consulting firm handling the project, writes:

     The purpose of the program is to assist in removal of blighted conditions in the

    area, assist in rehabilitation of dwellings capable of being upgraded to State Housing and

    Building codes and historic standards for rehabilitation, create/expand Park and Green

    spaces in the target area, promote new development in areas which are presently

    identified as slum and/or blighted areas to increase the potential for tourism and

    commercial uses which support the downtown area and to initiate renovation of public

    uses and/or utilities in the redevelopment areas.19

18 Ibid. 19 Community Development Plan for Historic Bowling Green Revitalization Project, prepared for the city of

    Bowling Green by Will Linder and Associates, November 2002, p. 5.

The statement concerning the “removal of blight.” sends out a warning signal, in light of

    the vague and arbitrary nature of some states‟ definitions of blight. A “blighted area” in the state of Kentucky is defined in Chapter 99 of the Kentucky Revised Statutes, which

    deals with urban renewal:

     “Blighted Area” means an area (other than slum area as defined in this section)

    where by reason of the predominance of defective or inadequate street layout, faulty lot

    layout in relation to size, adequacy, accessibility, or usefulness, submergency of lots by

    water or other unsanitary or unsafe conditions, deterioration of site improvements,

    diversity of ownership, tax delinquency, defective or unusual conditions of title, improper

    subdivision, or obsolete platting, or any combination of such reasons, development of

    such blighted area (which may include some incidental buildings or improvements) into

    predominantly housing uses is being prevented.20

     Every phrase in the Kentucky definition of blight is vague and arbitrary. Every

    section of that definition provides a cause for debate. What is considered predominance?

    What is considered a faulty lot layout? What is wrong with diversity of ownership?

    David Rusk teaches that mixed income housing is the key to vibrant and successful

    21neighborhoods. The state of Kentucky on the other hand, views those areas as blighted.

    The town of Lakewood, Ohio was able to create a situation in which any area could be

    considered blighted. Unfortunately, the state of Kentucky has made its definition of

    blight just as arbitrary, giving the Planning Commission of Bowling Green the same

    power as Lakewood to declare virtually any area blighted and leaving owners in the

    redevelopment district at the mercy of the Planning Commission.

     The Planning Commission discusses two techniques, acquisition and clearance, as

    well as rehabilitation, for accomplishing its goal of removing blight in the plan released

    by the city consultant. The section on acquisition and clearances states the following:

    22Section 2. Acquisition and Clearance

     20 Kentucky Revised Statutes, Chapter 99, Section 340. 21 David Rusk, Inside Game Outside Game (The Century Foundation, 1999) 95. 22 Community, 12.

    Acquisition, to the greatest extent feasible, will be limited to properties economically

    incapable of being rehabilitated. All purchases/relocation benefits will follow the

    Uniform Relocation Act. Additional properties may be acquired and cleared as follows:

    1. To remove buildings that are structurally substandard/or functionally obsolete.

    2. To remove buildings, other than buildings that are structurally substandard, in order to

    effectively remove blighting influences that are exerted on the area. Such blighted

    influences include, but are not limited to, the following:

    a. Incompatible uses or land-use relationships.

    b. Overcrowding of building on the land

    c. Excessive dwelling unit density

    d. Obsolete buildings not suitable for improvement or conversion

    3. To acquire properties which are needed for assemblage of a site necessary to meet the

    objectives of the Urban Renewal Plan.

    4. Voluntary acquisition may occur when an owner submits a proposal to the City for the

    purchase of his property. This may occur as a result of the owner‟s desiring not to

    rehabilitate his building or because of a desire to advance the goals and objectives of the

    proposed Development Plan. All voluntary acquisition must be approved by the City of

    Bowling Green and a purchase price must be justified based upon a local appraisal. It

    should be explicitly interpreted that voluntary acquisition does not allow the owner to The additional reasons for removing properties are quite alarming. Removing

    waive the relocation benefits of tenant as a condition of the sale.

     structurally substandard buildings is one thing, but removing buildings because they are

    “incompatible or obsolete,” is another story. Who is to decide what is obsolete or

    unsuitable for improvement? What does incompatible use mean?

    The Community Development Plan defines “nonconforming use of structures as

    an “activity or building, sign, structure, or a portion thereof which lawfully existed before

    the adoption or amendment of the Zoning ordinance, but which does not conform to the

    23zone which it is located.” Therefore, if a building exists, then the City Planning

    Commission arrives and zones the area the building is in for a different use, the building

    is considered nonconforming. Ninety-seven such structures exist in the redevelopment


     23 Ibid., 3.

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