David Beito on Eminent Domain Abuse in Alabama:

Historian David Beito, chair of the Alabama State Advisory Committee of the U.S. Commission on Civil Rights, has a good op ed on eminent domain abuse in Alabama. Last year, Beito and I coauthored an op ed on the negative impact of takings on minorities and the poor.

The interesting thing about the cases discussed in Beito’s current op ed is that Alabama actually enacted one of the nations’ strongest post-Kelo eminent domain reform laws; after passing largely toothless reform legislation in 2005, the state legislature went back and enacted a much stronger reform in 2006. The 2006 law forbids condemnations for “economic development” and also limits “blight” condemnations, such that only genuinely dangerous or seriously dilapidated properties can be condemned under that rubric. I discuss the Alabama reform law in this article, along with those passed by other states (the majority of which are ineffective).

Some of the abusive condemnations Beito describes were initiated under “redevelopment” projects that were already in place at the time the 2006 post-Kelo law was enacted. The law is not retroactive, and so it allowed those projects to go forward and continue to condemn property under the old, very broad, definition of “blight.” This case, however, appears to be more recent:

What is happening in the cradle of the modern civil rights movement? Jimmy McCall would like to know. ‘It was more my dream house,’ he laments, ‘and the city tore it down … It reminds me of how they used to mistreat black people in the Old South.’ In 1955, Rosa Parks took on the whole system of Jim Crow by refusing to give up her seat on a segregated Montgomery bus. Today, McCall is waging a lonely battle against the same city government for another civil right: the freedom to build a home on his own land.

Though McCall’s ambitions are modest, he is exceptionally determined. For years, he has scraped together a living by salvaging rare materials from historic homes and then selling them to private builders. Sometimes months went by before he had a client. Finally, he had put aside enough to purchase two acres in Montgomery and started to build. . .

McCall only earns enough money to build in incremental stages, but eventually his dream home took shape. According to a news story by Benjamin Solomon, the structure had ‘the high slanted ceilings, the exposed beams of dark, antique wood. It looks like a charming, spacious home in the making.’

But from the outset, the city showed unremitting hostility. He has almost lost count of the roadblocks it threw up including a citation for keeping the necessary building materials on his own land during the construction process.

More seriously, he was charged under the state blight law, which allows a municipality to designate a building as a ‘public nuisance’ and then demolish it. Critics have accurately called this ’eminent domain through the back door’ and warn that opportunities for abuse are almost limitless. In contrast to the standard eminent domain process, for example, property owners do not have any right to compensation, even in theory.. . .

Unlike countless others in similar straits, McCall fought back and hired an experienced local lawyer. In the middle of last year, he negotiated a court-enforced agreement, which gave him 18 months to complete the home. Only a month after the agreement took effect, the city demolished the structure. Local bureaucrats, obviously in a hurry to tear it down, did not even give him notice. The bulldozers came in the same day as the court order that authorized them.

McCall appealed to the same judge who had allowed the demolition. Saying that she had been misled, the judge ordered the city to pay compensation. Montgomery has appealed and at this writing McCall has not received a cent. McCall thinks that the city intends to drag it out until his money runs out. ‘I’ve got a lot of fight left in me, and all I want is justice,’ he states.

The 2006 reform law allows local governments to condemn property that creates a “public nuisance.” However, it is doubtful whether McCall’s house would qualify as such. Under the Alabama Code, a “nuisance” is defined as “anything that works hurt, inconvenience or damage to another.” It is possible to interpret this so broadly as to include the “inconvenience” McCall caused to the developers who apparently coveted his land. However, this would render almost any use of land a “nuisance” so long as someone else wants the property for a different purpose. In any event, Alabama law also states that “[a] public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals.” It is difficult to believe that McCall’s house somehow “damages all persons who come within the sphere of its operation.” At most, it is a private nuisance to “one or a few individuals” who might wish to use the property for other purposes – and even that claim would be a stretch. But Alabama law does not permit the government to condemn property merely because there is a private nuisance there.

It’s possible, of course, that there are some relevant other facts here that are as yet unknown to me. But the available evidence suggests that Montgomery’s effort to take McCall’s property violates state law. Unfortunately, the complex and difficult nature of the eminent domain process sometimes makes it hard for owners to resist even illegal takings.

Beito and McCall emphasize that, as in the past, takings disproportionately victimize lower-income African-Americans. Unlike in the 1950s and 60s, today such condemnations are rarely motivated by racism as such. Rather, low-income blacks are often targeted because of their political weakness. Local governments and politically connected developers know that they often lack the resources and influence to put up a fight. For this reason, as the NAACP explained in its amicus brief in Kelo, “[t]he burden of eminent domain has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and economically disadvantaged.”

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