Is Kelo Good For Urban Planning?

The recent ruling by the Supreme Court to uphold the use of eminent domain was seen as an endorsement of professional planning. But this is not true, writes Sam Staley in this week's Op-Ed. The Court's decision upheld the process -- but not good planning.

Photo: Sam Staley, Ph.D.

When the Supreme Court announces a decision as important as Kelo v. City of New London, we often tend to exaggerate its significance. Urban planners can also fall prey to this natural human error.

In Kelo, a 5-4 majority upheld the City of New London's efforts to redevelop the Fort Trumbull Neighborhood. Several homeowners and long-time businesses were resisting the city's efforts, arguing that their land was not necessary to achieve the city's goals, and that it was not fair to force them from their homes and transfer their land to private developers. The Court disagreed, saying that their property rights were not as important as the city's economic development objectives.

One critical part of the decision leapt out to urban planners, and, at first glance, a ringing endorsement of their livelihood.

"Given the comprehensive character of the plan," wrote Justice John Paul Stevens for the majority, "the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman [v. Parker], to resolve the challenges of individual owners, not on the piecemeal basis, but rather in light of the entire plan. Because the plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment."

The American Planning Association seized the moment, issuing a press release lauding the decision and likely echoing the sentiments of many in the professional planning community.

"The court upholds the use of eminent domain as a vital community tool, as advocated by APA and others concerned with the case," the planners' professional organization declared. "The decision validates the essential role of planning in ensuring fairness in the eminent domain process."

This is not quite true.

The Court clearly upheld the use of eminent domain for economic development purposes, but to interpret this as support for planning would be a mistake. In fact, all the references to planning were procedural. No attempt was made to examine the substance of the process or the plan. Whether planning created good or bad outcomes was immaterial.

Indeed, the Court viewed the planning process as little more than open deliberation on economic development policy. On the ground, particularly in cities facing economic decline, local planning often becomes the procedural framework in which purely political decisions are made. They often bear little resemblance to planning as most professionals practice it or students learn about it in their planning courses.

In New London, the "planning process" was really focused on creating jobs and investment. The city attorneys were quite open about both their intent and purpose: to increase the tax base, create jobs and generate tax revenues. The objective of the city was not good planning.

A legal planning process does not by itself make for good planning. It does, particularly now, provide a framework in which a broader range of political objectives can be achieved. In Kelo, the Court made the leap that an open decision making process produced fair outcomes and protected the interests of property owners.

Justice Anthony Kennedy's concurring opinion is more salient in this context. "This taking," he wrote, "occurred in the context of a comprehensive development plan meant to address a serious city-wide depression. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city's purposes."

This logic turns the entire concept of civil liberties underlying the U.S. Constitution on its head. The Fifth Amendment, like the other provisions in the Bill of Rights, was intended to provide broad protection of civil liberties. The rights to free speech, a free press, trial by jury, and due process were not intended to be privileges granted by political majorities. The Founding Fathers believed such broad protection protect the rights of minorities against the oppression of the majority and were fundamental to an effective democracy.

To illustrate Kelo's potential damage, recall that its precedent, Berman v. Parker, substantially relaxed constraints on takings of private property in 1954, unleashing a wave of urban renewal that cleared large swaths of America's cities in the late 20th century. The results, even many planners now believe, were devastating for communities. Many areas cleared for urban renewal were never redeveloped, but affordable housing and many potentially vibrant neighborhoods were bulldozed. Not surprisingly, critics now refer to urban renewal as "slum removal" and cynics refer to this period as "negro removal". The Court's reasoning in Kelo grants cities and public officials even broader powers to clear neighborhoods and force families from homes and businesses than those current existing from Berman.

Some have correctly noted that Kelo may not change policy. The Supreme Court merely gave a rubber stamp on efforts underway for two decades in the wake of Poletown v. City of Detroit, which devastated that ethnic community in favor of a GM plant. Poletown was reversed in August 2004 by the Michigan Supreme Court, but its effect, unlike the original case, is unlikely to be felt far beyond Michigan given the decision in Kelo.

The stakes are higher now than ever before for planners to ensure an open public process and protect the interests of homeowners, businesses and neighborhoods. Property owners can no longer rely on the federal courts when their property is seized, even when the primary beneficiary will be other private parties. The need for public vigilance in the planning process has been raised to new levels. Without judicial or statutory protections for property rights, planners may be the only ones in the redevelopment process either willing or able to protect the civil liberties of homeowners, businesses, and neighborhoods.


Samuel R. Staley, Ph.D., is Director of Urban and Land Use Policy for the Reason Foundation in Los Angeles and former member of his local planning board. His most recent book, co-edited with Randall G. Holcombe, is Smarter Growth: Market-Based Strategies for Land-Use Planning in the 21st Century (Greenwood Press, 2001). He received his Ph.D. in public administration from The Ohio State University with concentrations in urban planning and public finance, and he holds graduate and undergraduate degrees in economics from Wright State University and Colby College.

Comments

Comments

Eminent domain

Samuel Staley in his article on eminate domain states"The need for public vigilance in the planning process has been raised to new levels".
So how is that done? I believe city government must be required to prepare a well researched impact study. Break down the costs, realistic impact & projected benefits. Hell, set some minimum standards that need to be met right up front. Save public expense reviewing plans that don't meet that standard.
My observations have been driven by the failed "The West End Project" in Lakewood Ohio. I felt public officials behind the project lacked the experience or guidelines to evaluate a project of its type. I believe it was sold on emotion." The city is going downhill. This project will save it". I believe projects should be sold on facts not emotional pleas of created jobs, prestige, unfounded revenues to save a city.
A project needs to stand on it's own merit. It also needs to respect the rights & dignity of the citizens. No-one should live with the fear that they may lose their home & property to some private higher & better use formula.
Members of the Supreme Court said it will be up to the individual states to provide guidelines for taking property. Lets get our State Legislators to provide some security.

Patrick Ballasch Realtor & concerned citizen

Eminent Domain: More Pain Than Gain?

When I was a young planner, my stepfather told me about an episode of the Amos and Andy radio show. It seems Amos who was a redevelopment planner was excited about the new urban renewal program and he asked Andy what he thought of it. Andy replied, “It depends on whether you’re the planner or the planee.” I suspect that somewhat similar conclusions are being reached all across America by the recent Supreme Court decision on eminent domain in Kelo v. City of New London. The reaction probably depends on whether you are the one acquiring the property through eminent domain or the one whose property is being obtained without your agreement.

While I concur with the opinion of Paul Farmer, the executive director of the American Planning Association, in his recent column in Planning, that “state legislatures are likely to become the new battleground for eminent domain”. I am concerned about how planners will respond to this challenge. In delivering customer service, one of the most important factors that determine satisfaction for government services, which is not commonly shared with the delivery of products and services in the private sector, is the customer’s perception of fair and equitable treatment. I would argue that a commitment to equity and fairness has been an enduring core value and characteristic of public sector planners. The Kelo decision upholds the right of government to violate these core values.

In graduate school in the 1970’s, I learned that urban renewal had a dark side. In too many communities urban renewal became a “black removal” program and it was not just limited to African-Americans. In San Antonio, Hispanic people were forced out of their marginal business and housing for the laudable goals of improving the San Antonio River and to spur economic development. Neighborhoods were removed in Pole Town so that General Motors could build a Cadillac plant. Looking back on the history of urban renewal, eminent domain has always been used to promote economic development. What apparently makes the Kelo case noteworthy and of current interest to so many Americans is that eminent domain is now being visibly used against middle class or even upper class residents and it sends a compelling message that no one’s property is safe from government bureaucrats and politicians.

In my opinion, and in the opinion of a great number of Americans, eminent domain should not commonly and easily be used to acquire property for an economic development project from an unwilling seller. Especially under the too easily trumped up justifications which are unethically being used to support convenient determinations of blighted property. The primary approach should be for developers, whether from the public or private sector, to negotiate and purchase the property at the cost which is determined by negotiations in the market place. Planners have much to gain by not producing bogus determinations of blight and by respecting and upholding the principles of equity and fairness in property transactions that will produce private gains to investors.

In Kelo, a majority vote on the Supreme Court concluded that the use of eminent domain for public benefit should be defined and authorized by states and localities. At a minimum, planners should provide leadership for legislative criteria that clearly defines and limits the inequitable and unfair use of eminent domain. And planners should be advocates for the establishment of a legislative process that empowers the voters at the state and local levels of government to make these decisions for themselves. Andy understood the concept of perspective. His homespun humor reflected real wisdom and planners too can benefit from seeing eminent domain from the perspective of the property owners who now fear their own governments.

Bruce McClendon, FAICP has over 30 years of experience in planning, was two-time president of the American Planning Association, and author and or editor of five books including Customer Service in Local Government.

where is jane jacobs?

to call the process by which the "plan" was ulitmately approved by the City of New London a public process is a slap in the face to those of us who practice planning. it was railroaded thru by those who would best profit from the approval. the tyranny of the "urban" majority won the day, after all. i too am heartily disappointed in endorsement of the outcome by the APA, my professional organization, which more and more seems to be distancing itself from the true nature of planning, in favor of bywords and byplay with the development community. in addition, i am disappointed that we seem to have forgotten the lessons of jane jacobs "cities and the wealth of nations."
http://www.susannaheanes.blogspot.com

Kelo is Bad Planning

I agree that the decision had nothing to do with good land use planning, but unfortunately as you noted, my professional organization, the American Planning Association (APA), jumped on the bandwagon.

APA filed an amicus brief supporting the City of New London. APA’s brief argues “that the state courts long ago abandoned as unworkable and unduly restrictive the notion that eminent domain should be limited to projects used by the public. In this view, economic development is an entirely appropriate – and legal – aim of the use of eminent domain.” While this statement is true, it also seems to be in conflict with our organization’s principles as noted below (taken from APA’s most current Development Plan):

…the objective of the Association is to encourage planning that will contribute to public well-being by developing communities and environments that meet more effectively the needs of people and of society.

APA's Slogan: Making Great Communities Happen.
Their vision is of a nation of vital communities, equally available to all people, where:
• sustainability guides decisions at all levels;
• quality, affordable housing is available to all people;
• public officials and citizens understand, support, and demand excellence in planning;
• citizens actively participate in making the choices that determine the future; and
• social, economic, and racial integration throughout the community is achieved.
With these principles in mind, I cannot understand why APA filed an amicus brief supporting the City of New London. Does APA now believe that “making a great community happen” means tearing down a non-blighted, working class mixed-use neighborhood and replacing it with a developer sponsored private project with high-end offices, executive condominiums, and a research complex? Does taking this property without allowing the citizens affected by the proposal to “actively participate in making the choices that determine the future” meet their mission statement? Using eminent domain as a planning tool just for economic development without involving the citizens does not support APA’s purpose as stated in their Development Plan.

APA’s executive director, Paul Farmer, AICP, stated that “the courts have long recognized eminent domain as a legitimate function of local government – communities are not frozen in time. They are always changing – whether thriving or stagnating. Owning a piece of property does not guarantee that it will be immune to change.” True. But, shouldn’t we as planners work on this change in a positive way through proper planning instead of letting planning occur by big corporations dangling dollar signs in front of city officials?

APA suggests in the article that limiting the use of eminent domain for economic development to cases where the property is blighted would generate undesirable consequences, such as impacting only poor and minority communities, which tend to be more easily classified as blighted. However, isn’t using potential economic development as the only reason to tear down a working class, mixed- use neighborhood just adding to the problem?

APA also puts forth an unrealistic suggestion that the existing system should be reformed so that more than fair market value be paid. This would take into account subjective considerations such as attachment to your home and a neighborhood. But, how do you assign a dollar value to subjective factors? Who determines if my view is worth more than my neighbors view?

The U.S. Constitution states very clearly that private property shall "not be taken for public use without just compensation." In the New London case, the government wants to take properties and homes for more tax revenue. But does tax revenue equal public use? I am disappointed that APA as an organization thinks so.

Kelo Has Struck Planning Inert

I know about eminent domain first hand. I worked in one of the largest urban renewal efforts in Boston from 1962 to 64. You may accurately criticize the results and, but all of the exercise of eminent domain had to be justified by a plan. And that plan had to be approved by the city council, local citizens who could reject it without some voice, and the federal government.

No such "planning" Nation-wide requirements or a planning process underpins the exercise of eminent domain that Kelo expanded. Left up to local jurisdictions, they can easily forgo the planning requirement, even though they may conduct a sort of community review. And that is not a nation-wide requirement for the exercise of eminent domain.

I agree with Mr. Staley. But my view after a 43 year career in planning tells me that planning has been further devastated. And, worse, without thinking, the APA does the politically correct thing, to stay in Bush's good offices, and approves of the Kelo decision. If you cannot count on planners to carefully examine the impact, then we are truly in trouble and the professional status of planning has less and less validity.

Kelo v. City of New London

In his analysis of the recent Kelo v. New London Supreme Court decision one commentator expressed concern about the Supreme Court “. . . searching through obscure European legal decisions in hopes of finding a new constitutional right to recognize . . .”

The idea of a “new constitutional right” seems interesting. How long is it now that we've been building new “public” roads and posting signs on the entrance ramps reading “Pedestrians, bicycles and non-motorized vehicles prohibited.” The prohibition is obviously necessary from a public safety standpoint but the same words seem quite descriptive of the kind of new urban and suburban development we’ve been getting ever since we started building freeways.

Post World War II flight from the cities to the new suburbs is a primary cause of the urban blight that triggered early renewal programs. It’s easy to understand why at that time we did not seek out a “new constitutional right” which might have made it unecessary to escalate urban renewal through the various forms that have culminated in controversial projects of the sort just acted on by the Supreme Court. Civil rights arguments against sprawl development in its early stages would have had a hollow ring when compared to the vicious racial discrimination prevailing then.

But we’ve known all along that driving a motor vehicle on a public road is a privilege, not a right. Are local and county governments violating the rights of citizens who cannot, should not, or choose not to drive, when they approve new urban and suburban development that is accessible and functional only for those who drive cars?

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