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 slums—the 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
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
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.