pageok
pageok
pageok
Liberal Democratic Massachusetts State Representative Pushes Legislation Restricting Eminent Domain:

The Boston Globe has an interesting article about liberal Democratic State Representative Martha "Marty" Walz, who is sponsoring legislation to restrict eminent domain that recently passed the Massachusetts House of Representatives and is now stuck in the state Senate:

State Representative Marty Walz says she only has to gaze out at the towers of luxury housing that occupy the area where a vibrant working-class neighborhood once stood to be convinced of the danger of unchecked government power to seize private property.It was 50 years ago that the city forced thousands of residents out of their homes in the old West End neighborhood to make way for the Charles River Park apartments that were touted as the kind of economic shot in the arm Boston needed to bring fresh vitality - and wealth - to its downtown residential base.

Walz, whose Back Bay-based district includes the West End, worries that such a thing could happen again, and her effort to rein in eminent domain powers has caused a tempest among municipal officials and development types.....

[N]othing in recent years has stirred the passions of those concerned about creeping government authority in this area quite like the Kelo ruling issued three years ago by the US Supreme Court.

In the Kelo case, brought by a New London, Conn., homeowner facing the loss of her house, the court upheld the right of the coastal Connecticut city to take the property as part of plans for a massive mixed-use private development. In a 5-to-4 decision, with the court's more liberal members in the majority, the justices ruled that job creation and an expansion of the city's tax base constituted a "public purpose" in keeping with the Constitution's idea of public use....

The issue defies easy ideological pigeon-holing. Although the losing challenge to the Connecticut land-taking was supported by the court's four most conservative members and was filed by a national libertarian legal rights firm, the NAACP filed a brief on behalf of the aggrieved homeowners.

Like the civil rights group, Walz, a liberal Democrat, finds herself in the company of strange political bedfellows on the issue, but she evinces no qualms about that. "Aren't liberals supposed to protect the politically powerless against the politically powerful?" she says.

Massachusetts is one of only 7 states that has failed to pass any new law limiting eminent domain in the aftermath of the Supreme Court's 2005 decision in Kelo v. City of New London. As I discuss in this article, many political liberals have joined libertarians and conservatives in opposing "economic development" and "blight" takings because such condemnations often target the poor and politically weak for the benefit of the wealthy and politically powerful (see also here and here). Since World War II, several million people (mostly poor and ethnic minorities) have been forcibly displaced by such takings.

Kelo has focused public attention on this issue and state governments have had to react to appease public opinion. Unfortunately, as I explain in more detail in this article, the majority of the new laws passed by 43 states impose few or no meaningful restraints on takings, and seem to be meant to appease public opinion without actually addressing the underlying problem.

Representative Walz's bill (text available here), seems to effectively ban takings for "economic development." However, at least in the text I have been able to find, It does not address the problem of "blight" takings. In Massachusetts law, as in many other states, "blight" is defined so broadly that almost any property can be declared blighted and condemned.

Still, Representative Walz's bill may be better than the status quo and is a useful example of a cross-ideological coalition in defense of property rights. As I explained in the last part of this paper, such coalitions are essential if we want property rights to be better protected in the long run. As Walz puts it, we all need to do more to " protect the politically powerless against the politically powerful."

FWB (mail):
This country wouldn't be a bad place in which to live, if the courts hadn't screwed it up so badly. Crystal balls, tea leaves, and palm reading.

The Kelo decision is one of the most egregious, incorrect decisions ever handed down by the courts. Public use is public use. Not benefit. One man's blight is another man's dream island. Greed is the ultimate culprit. Greed drives cities, counties, states, the feds, and everyone else. Whether it is greed about one's property values or coveting what one's neghbor has. It is all greed. Just because the government can steal property by fiat does not make the law morally, ethically, of even technically correct.

May they all be judged for what they have done.
10.7.2008 8:09pm
kietharch (mail):
The West End project was one of several "Urban Renewal" projects critically presented in Jane Jacobs' book "Life and Death of Great American Cities". I lived in Boston for several years and at that time (mid sixties) nearly the entire West End area was a wasteland because there was little market demand for high rise apartments, (I think one or two had been built at that time) especially those surrounded by acres of broken concrete and weeds.

But the point I am gettng at is that there should be no big divide between liberals and conservatives on this issue. Jane Jacobs was pretty far to the left even though she recognized that free enterprise and markets were the core of vital urban life.
10.7.2008 9:11pm
Oren:
From a strictly utilitarian point of view, requiring 500% pre-blight market-value compensation should lead to strictly better outcomes than a blanket ban on "development" takings. In that sense, Kelo is incorrect only in that it allows development takings at the same prices as genuine public-use takings.
10.7.2008 9:38pm
SeaLawyer:
In the Twin Cities they planned the freeways in the early days to rip the heart out of the black communities. We are still paying for the crappy design of the freeway system. S
10.7.2008 10:58pm
stombs (mail):
Do people in Boston really refer to that area as the West End? I grew up there and can't recall ever hearing the term. The redevelopment was always referred to as "Scollay Square," possibly because its removal was the easiest to defend. (Of course, all the adult businesses just moved a few blocks down the street to the Combat Zone.)
10.8.2008 12:00am
Edward O'Connor (mail) (www):
While Massachusetts as a state hasn't managed to address Kelo in legislation, several towns and cities (e.g. Scituate) have passed anti-Kelo by-laws.
10.8.2008 12:53am
Ilya Somin:
But the point I am gettng at is that there should be no big divide between liberals and conservatives on this issue. Jane Jacobs was pretty far to the left even though she recognized that free enterprise and markets were the core of vital urban life.

Since I wrote an amicus brief on Jane Jacobs' behalf in the Kelo case (in support of the property owners), I couldn't agree more.
10.8.2008 2:02am
Ilya Somin:
From a strictly utilitarian point of view, requiring 500% pre-blight market-value compensation should lead to strictly better outcomes than a blanket ban on "development" takings.

I disagree. See my discussion of compensation in Part II of this article. Even with vastly increased compensation, inefficient takings might well still happen because it's the taxpayers who will pay for the compensation, not the new owners of the condemned property or the government officials who approve the taking.
10.8.2008 2:05am
Arkakdy:

Do people in Boston really refer to that area as the West End?


I lived in the Boston area for 40 years, and I did hear folks refer to that area as the "West End". Not a lot though, probably because it had long lost its identity as a neighborhood a la the North End.
10.8.2008 10:43am
M (mail):
It's not generally referred to as the West End anymore because, as Arkakdy points out, it isn't really a neighborhood anymore. The Scollay Square redevelopment was separate, I believe. It was replaced with what has to be the ugliest and most disconcerting piece of architecture I have ever encountered: Boston City Hall. It sits in the midst of a vast brick plaza that is only rarely used. I'd take seedy adult businesses any day over that building and the government that mismanages the city from within.
10.8.2008 11:11am
sub p (mail):
I think the author is correct that the issue defies easy ideological pigeon-holing. For example, Ralph Nader (not known for being a libertarian) wrote an article - 49 Vill. L. Rev. 207 (2004) - arguing that


courts should subject eminent domain takings to strict
scrutiny where three conditions are present: 1) the land is transferred to another private party rather than held by
the public; 2) the individual interest of those whose land is taken is particularly strong and monetary compensation
cannot significantly compensate for the loss; and 3) the party whose land is taken is relatively powerless politically. Under such circumstances, the state should have to demonstrate a compelling need for the transfer,
one which cannot be met by other less harmful alternatives. Wholly speculative or transient benefits should not suffice.


Nader also proposes a "less strict" strict scrutiny to be applied in all cases of private-to-private takings, even if #2 and #3 above are not met.
10.8.2008 1:23pm
PDXLawyer (mail):
Building office parks is surely one of the least defensible uses of eminent domain. Using it mostly because you want to tear down the old neighborhood rather than because of an urgent need of what you propose to build seems not to have worked out too well, either.

The hard case I keep coming back to is private infrastructure projects. Historically, the example of this was the railroad. Assembling a right of way in a densely settled area would be nearly impossible without imminent domain. I expect the 21st century issue to be power line rights of way.

As much as I dislike seeing imminent domain used to build an office park, I'd also hate to see a rule which unduly discouraged development of private infrastructure.
10.9.2008 3:47pm