Let There Be 'Blight' - Welcome to the post-Kelo world
Opinion / Editorial by William R. Maurer
WPC Adjunct Scholar
Executive Director of Institute for Justice, Washington chapter
Posted on the website for Washington Policy Center
January 11, 2007
SEATTLE--The city of Burien, Wash., recently decided that a piece of property owned by the seven Strobel sisters that had long housed a popular diner-style restaurant was not upscale enough for the city's ambitious "Town Square" development, which will feature condos, shops, restaurants and offices. Rather than condemn the property for a private developer and risk a lawsuit, Burien came up with a plan--it would put a road through the property, and the city manager told his staff to "make damn sure" it did. When a subsequent survey revealed that the road would not affect the building itself, but only sideswipe a small corner of the property, the staff developed yet another site plan that put the road directly through the building. A trial court concluded that the city's actions might be "oppressive" and "an abuse of power"--but allowed the condemnation anyway. The Washington Court of Appeals affirmed, and the Washington Supreme Court refused to hear the case.
Welcome to the post-Kelo world. The U.S. Supreme Court's 2005 decision made clear that the federal courts would not stop local governments across the country from condemning private property for economic development. While the court noted that states were free to provide greater protections for homes and small businesses if they chose, Washington state stands as evidence that a strong state constitution means little if the courts do not enforce it and local governments disregard it.
When Kelo came out, local governments and their lobbyists eagerly explained that ours was not a "Kelo state," and that the legislative efforts to restrict eminent-domain abuse in other states were unnecessary here. The Washington Constitution explicitly provides that "private property shall not be taken for private use" (except in very limited circumstances). "It can't happen here" became the oft-repeated message used to placate home and small business owners seeking legislative protections for their property.
When it comes to governmental abuse, "it can't happen here" really means "it is happening right now." Local governments are busily using mechanisms in state law to threaten neighborhoods and abuse property owners, and the state Supreme Court has repeatedly let them get away with it.
Shortly after Kelo, the Washington Supreme Court allowed the Seattle Monorail to permanently condemn a piece of property it needed only temporarily for a construction staging area. Once the monorail had completed that legitimate public use, it intended to sell the property at a premium to raise revenue. In this way, Washington courts now allow local governments to condemn more land than is necessary, for longer than is necessary, in the hopes that the government can play real-estate speculator with whatever is left.
The court also ruled that the meetings at which a local government determines which property to condemn could take place essentially in secret, with the only notice for property owners being a posting on an obscure government Web site. The court ignored the fact that computer usage among minorities, the elderly and the poor is significantly lower than in other segments of the population, and that it is these communities that traditionally have been the target of aeminent-domain abuse.
Washington courts now defer to even the most extreme examples of governmental exploitation, exemplified by Burien's treatment of the Strobel sisters. So long as the government can manufacture a fig leaf of public use or possible public use for constitutional cover, local governments can take private property to transfer to other private entities or deliberately target properties not upscale enough for the bureaucrats' "vision."
The tools available for trampling constitutional rights are already there. Since the Kelo decision, municipalities have rediscovered Washington's Community Renewal Act, the local incarnation of statutes used to destroy working-class (and often minority) neighborhoods across the country in the 1950s and '60s. The government, under the act, can condemn an entire neighborhood and transfer the property to a private developer so long as the government finds that at least some property in the neighborhood is "blighted."
Unfortunately, this statute is so broadly worded that practically every neighborhood in Washington meets the definition of "blight"--things like "obsolete platting" and "diversity of ownership" constitute "blight." The statute provides all the devices a mildly clever planner needs to pull off a Kelo-style taking.
Working-class neighborhoods are already feeling the pressure. Auburn recently declared much of its beautiful downtown "blighted," and adopted a Community Renewal Plan. One city manager explained that blight "means anything that impairs or arrests sound growth"--a hugely elastic definition. Similarly, Seattle is considering using the Community Renewal Act in the city's Rainier Valley , one of the most diverse neighborhoods in the nation.
Regardless of strong constitutional protections for private property, governments and courts now view eminent domain as an area where few if any restrictions exist. And not just in Washington. In probably the most appalling example, the U.S. Court of Appeals for the Second Circuit let stand a condemnation in which a developer in the Port Chester, N.Y., demanded that Bart Didden give him either $800,000 or a 50% share in Mr. Didden's property, which was slated to be a CVS pharmacy--or the developer would have the village condemn it. Mr. Didden refused; the next day, the village condemned his property to hand it over to the developer to construct a Walgreens. Tomorrow, the U.S. Supreme Court will consider whether to take the case.
Meanwhile, state and federal courts are turning redevelopment areas into Constitution-free zones, where the government can do what it wants with few or no restrictions. It doesn't have to be this way. Courts could force the government to comply with the state and federal constitutions. Local governments could limit their takings only to legitimate public uses. But until all three branches of government begin taking their constitutional obligations seriously, property owners across the country face the continued threat of eminent-domain abuse, regardless of what the state or federal constitution says.
Ask the Strobel sisters, who are now fighting for just compensation for a property that was never for sale in the first place.
Mr. Maurer is executive director of the Institute for Justice, Washington chapter, and the author of "A False Sense of Security: The Potential for Eminent-Domain Abuse in Washington," recently published by the Washington Policy Center. The Institute litigated the Kelo case and represents Bart Didden in his appeal to the U.S. Supreme Court.
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