Eminent Domain: Where Do We Go From Here?
The phrase ‘Eminent Domain’ has become as evil a phrase in the city as ‘Urban Renewal’, maybe more. I’ve yet to take a strong position on this debate so it is time I correct that. Click here to read a prior post on eminent domain from October 2005.
I’m going to start by putting on my best political top hat, ride the fence, and state the obvious:
Eminent Domain is a very useful tool that does have its place. Eminent Domain has been increasingly abused, to a point beyond excessive. Both sides of the debate on Eminent Domain need to step back and look for common ground. Nobody wins as long as this debate continues.
The above are pretty much “safe” positions for one to take. In other words, no real substance. But I’m a substance kinda guy so here it goes.
No eminent domain for a Wal-Mart!!! Nor for any other “big box” store, chain or local. Don’t even think about taking someone’s personal home.
On the other side of the coin if we, as a city, through a quality urban planning process decide we need a new park, school or library then yes, I can see the use of eminent domain — even possibly taking someone’s personal residence. But I’d want to see hard evidence of two things, 1) the need does exist and 2) all other possible sites do not work.
Everything else is a very subjective quality issue for me. Take, for example, the recent issue in Richmond Heights of the area known as Hadley Township. I’ll be the first to admit that I probably wouldn’t be as upset about the use of eminent domain had the city selected the truly urban proposal from Conrad Properties. Some may claim I’m inconsistent or a hypocrite but let me elaborate.
Many things can be accomplished through good zoning. Dense & walkable neighborhoods can be created where suburban sprawl once existed. Increased density around a transit stop is, in my view, in the public good and therefore at least worthy of consideration for the use of eminent domain. Zoning in smart cities offers developers incentives as trade off for things in the public interest. Other times the incentives become mandates. So, if a developer is seeking eminent domain for an area I think they’ve got to earn it. This means to me minimum densities, little to no surface parking, 2-story minimum building heights (more depending upon circumstances), relationship with the sidewalk, bike parking, mixed uses and so on.
None of the requirements should be punitive to the developer but instead offer rewards for creating good urban design. This might mean the developer gets to build a floor or two higher than normally allowed or gets reduced parking requirements. By designing the zoning in such a way as to require good urban in-fill as a condition for the use of eminent domain then I can possibly be convinced a private development is in the best interests of the public.
A typical sprawl center, like Loughborough Commons now under construction, is not nor will it ever be in the public good to the point it justified the use (or threat of use) to take those people’s homes. It was wrong. More than enough land existed to create the horrible shopping center.
I think to some developers the project just is not complete unless they take away someone else’s property. If they’ve got 1 acre they want 2, if they have 6 they want 8. You don’t have to have an entire city block to build new construction! If you have a lot with 100 feet of frontage by 125 foot deep design a building to fit that parcel, don’t complain the guy next door won’t sell his vacant 50 foot wide lot. I think much of our areas are stagnant because developers waste precious time trying to find ways to assemble increasingly larger and larger parcels for overly complicated projects. In the meantime years go by and nothing is built. If you’ve got more than 25 feet of width you can construct a new building. Deal with it. Build on it or sell it to someone that will.
However, maybe I can be in a position at some point to take the as-yet-built McDonald’s on Grand and raze it for something urban? That might be the trick, if you build low-density suburban crap in the city you leave yourself wide open for eminent domain for a project achieving certain set criteria.
Eminent domain for road building should be a thing of the past, at least in established areas. We’ve got all the roads we need. Well, with a slight exception — I want back many of the streets and alleys that have been vacated over the years. Eminent domain to reclaim previously public streets and alleys should stick around. I should also separate out roads from highways. Building a new road to connect the street grid together is probably a good thing. Taking property for more highways, no so good.
And yes, on my site I am judge and jury. I’m making highly subjective value judgments. I know that, not necessary to point it out. Our zoning codes are entirely subjective value judgments — ours just happen to be based on what bureaucrats & officials thought in the late 1940s. Newly revised zoning codes would not say, “call Steve Patterson to find out the answer.” No, new zoning codes can incorporate judgments related to supporting our old urbanism as well as thinking from new urbanism. Let’s at least get to the point where we are debating the finer points of a new zoning code. Then, and probably only then, can we make any rational decisions around the use of eminent domain.
– Steve
I basically agree – eminent domain should be a tool of last resort. It should be used only for a higher public good and the folks getting bought (kicked?) out should be compensated more than fairly, not “beat down” by the government and the judicial system.
That said, I see a much bigger problem with the reliance on local sales taxes as being the driving force behind too many of the more-controversial cases around here. Too many local governments are trying to attract non-residents to spend money in “their” city so that other taxes will (appear to) stay low for the “lucky” residents of said city. Face it folks, there’s a finite pool of tax money out there – if you have “winners”, you’re going to have “losers”. Take away (or cap or force the sharing of) the local sales tax and you’ll take away much of the incentive to convert residential land to commercial uses!
Right now, Rock Hill is betting big time on the success of one retail development – that’s insane! Their residents shop in Brentwood, Maplewood and Richmond Heights. It’s just a stupid shell game, where developers move from subsidy to subsidy, convincing small-town politicians that new developments will be the panacea to solving local tax shortfalls. The only winners are the developers – they get paid and move on. The localities see a short-term bump in sales taxes collected, but the bulk of that actually goes to paying down the TIF/bonds/creative financing that got the development built in the first place. Ten-fifteen-twenty years later, the place has lost its luster, sales are falling off just as the bonds are paid off / the TIF expires, and the cycle starts over again! Until this cycle gets broken, either through consolidation of the many small local govdernments or forced, equitable revenue sharing becoames a reality, eminent domain will remain a crude tool that will continue to be used by politicians more focused on increasing revenues than the public good!
Neither of the above comments address the most basic problem with the application of the eminent domain tool: the definition of blight.
Second issue, if once a property is deemed blighted, then what might be the allowable reuses?
Case in point.
Property “A” is occuiped by a homeowner (or occupied by a tenant, either way), and is a severely ramshackled house.
After multiple code violation notices and missed court dates, it is obvious the current owner either has no intention or the resources to bring the property back up to code.
Would it be a reasonable use of eminent domain for the city to:
A) Blight the property by ordinance
B) Acquire the property through eminent domain and a redevelopment authority
C) offer the property for sale to a private developer to rehab and resell on the private market?
Some hard core E.D. opponents would say “no”.
Drive around the city. Some of the buildings with “Stop Eminent Domain Abuse” signs plastered to them are the worst maintained structures on the block.
[REPLY I see your point and understand the issue but I’m not certain eminent domain is the right tool for the job. The idea of creating a development plan so that a property taking can be justified seems a bit authoritarian. Still, if it has been through enough other processes maybe it is a good last resort method? – SLP]
ED is definitely abused here. Saying that blighted homes/violators are the core of the “Stop the Abuse” crowd is a cheap and inaccurate comment.
The solution rests with effective code enforcement. Local municipalities are poorly managed in this regard preferring to bury their heads in the sand. Other explanations include favoritism, lazyness, or even worse, corruption that explains this growing problem.
The definition of blight though is so broad that even government can create blight quickly and easily in order to use ED. This creates a conflict of interest for many elected officials which they do not like to discuss.
John-
You’re sadly mistaken.
Some people need a reality check.
Steve-
It will be fun to debate this issue in the anonymous.
It would be better to have a public forum on the issue where practitioners in the field can share expereinces from actual cases.
Maybe this is an opportunity for “Urban Review” to provide leadership on an issue important to city residents.
Dear If,
Do you really believe that the properties in Clayton on Forsyth are blighted? Reality check, get out and you too will see numerous and on-going cases of abuse
Perhaps in your ‘hood there are too many examples of blight that were created by irresponsible owners. I suggest you contact your local elected officials to hold them accountable. Or would it be easier to stand on a soapbox and claim you know more…
Yes there may be areas that are truly blighted. The answer is not ED but a clearer and concise set of laws which allow for precise and definable problems.
An earlier post addressed the point regarding the defintion of blight.
Obviously the Clayton example stretches the defintion of blight to the unreasonable extreme. It also shows how creative some governments and lawyers can be when they want to make something go their way.
Holding public officials accountable for the maintenance of private property is also unreasonable. Beyond citing owners for code violations, what are they supposed to do? If anything, the City of St. Louis does more than most places by providing some assistance to distressed homeowners (usually not landlords, though).
There is a big difference between the West County Mall and downtown Clayton ED cases, and the ones us in-the-trenches city redevelopers deal with on an ongoing basis.
Unfortunately, many people only casually familiar with the issue tend to lump all ED cases together.
There are huge differences.
Someone earlier wrote about favoritism in the application of eminent domain activities.
Readers probably thought the writer was referring to favored developers.
But did you know that in almost all cases, aldermen will never blight an owner-occupied property regardless of how poorly maintained it is?
Can’t condemn out that voter, don’t you know.
Protecting a P-O-S owner-occupied home in the middle of a quality new redevelopment project (for the sake of one vote) adds that certain touch of class, not to mention how it helps the marketing efforts on the new homes!
Yeah, it’s a complicated issue. And it all ain’t about fancy Clayton office developments and suburban shopping mall facelifts.
Oops… the problem has been identified. It is the public’s attitude that it is unreasonable to hold elected officials accountable for the oath of office.
Clayton is not a stretch if you study the spectrum of ED abuse. It may be the most extreme here in STL for locals who only know local issues. But clearly you must acknowledge then the power and subsequent abuse.
Code violations should be directly addressed by the legal issues pertaining to such. Typically, the charter of a municipality allows for such but too often local officials find these to be too bothersome to be addressed in the manner our laws were written for. It is more fun to be wined and dined by developers and use blight as an excuse for urban strategies.
A well kept and improved property located to a blighted one may be included (and usually is) in an ED procedure (another example of the abuse).
Laws that lead to throwing the baby out with the bath water are not in the public’s best interest (unless you’re the developer, work for one, or a beneficiary of such).
Blighting is like the burned-out tailight excuse a cop uses to pull you over. If the government really wants your property, they have the tools and they’ll figure out to use them.
It gets back to good government and quality elected officials. ED is just a tool, albeit a very pwerful tool. Get local government weaned off the sales tax teat and you’ll go a long in reducing the abuses associated with ED . . .
John-
What do you do when you reach the end of the code enforcement road, and there is still no remedy to the problem?
The city has property owners in housing court for years. Many of these abusive property owners know the system, and the properties remain a blight on the neighborhood for years.
The city’s new “mail-in-your-fine” approach to code enforcement acknowledges the problem that city officials from the on-the-street code inspector, to judges in the housing courts are bogged down to the point where these persistent violators are crashing the system. And understand, we’re talking about the worst of the worst.
Jim-You seem to think ED is mainly used to generate increased taxes for muunicipalities.
In the city of St. Louis, in particular for residential projects including eminent domain, the development plans usually provide for tax abatement.
If there’s anywhere in the St. Louis area where ED is used appropriately, it’s in the City of St. Louis.
The French tradition which guides lawmakers in New Orleans is an example of how not to do things. They rigorously defend private property rights, pretty much not taking any abandoned properties into public ownership.
As a result, even pre-Katrina, there were thousands and thousands of abandoned properties in the city.
Wait a minute, that sort of sounds like St. Louis. Hmmm. Yeah, we better crack down on the use of ED in city.
Makes sense to me.
Okay, so back to the question. John, what do you do with the recalcitrant property owner who does not respond to repeated code enforcement actions? Have the neighbors/neighborhood suffer?
Not.
After years of repeated notifications of code violations, it’s a rational conclusion that one abdicates one’s right to property ownership. Makes sense to me.
Dear Big,
We have a Constitution and a set of laws to deal with the problems you raised. Typically, fines/taxes are levied on real estate/property and if remain unpaid, eventually leads to a court supervised liquidation. This is not a timely process but it is more preferable than lumping a whole neighborhood and blighting it when the majority is code compliant.
Suggesting that ED is the only way to deal with such issues is myopic and inevitably leads to much abuse. ED was originally conceived as a means to convert ownership from private for public purposes. Unfortunately that definition now includes tax revenues.
Your examples are perfect descriptions of what happens when elected leaders fail to to be held accountable. ED is a last ditch strategy to basically cover up failures that have been brewing for many years.
The bogged down courts are also that way due to many other factors other than irresponsible owners, but that is a wholely different argument. What in the world does “know the system” mean?
Mix in developers, campaign financing, favoritism, etc. and the primary purpose of government turns from protecting property to blighting it for favored developers. The Constitution has been turned in its head. This leads to the worst time of suffering. The backlash is just beginning…
In St. Louis, most blighting ordinances involve single sites, not whole neighborhoods, and often, if a larger size, specify which, if any properties are subject to eminent domain.
As stated previously, those sites typically exclude owner-occupied properties.
The city forecloses for tax delinquency.
Has there ever been a case of the city taking property for unpaid code violations?
Wait a minute…here we go again…
The violators know the system.
They know it’s cheaper to pay the fine than repair the property.
So they just keep paying the fines.
When Alderman Gregali tried to increase those fines, the voters (read old people safe in their homes), turned down the new schedule of fines.
Yep, the bad actors know how to work the system.
Neighborhoods, not elected officials, need the power of eminent domain.
My concerns with the abuse of ED are primarily suburban – St Louis city is big enough that it, in msot cases, doesn’t need to steal business from “across the street”.
Steve:
Reading your self-proclaimed “fence sitting,” I am reminded of that question President Richard Nixon asked reporter Dan Rather at a White House briefing, “Are you running for something?”
I live in Rock Hill and near the proposed site for Market on McKnight. As far as I’m convinced, the development is the proverbial pooch that was screwed since its inception. As Jim said, there already are large retail developments in Brentwood, Richmond Heights, and Maplewood; there may not be enough retail dollars to support another development in Rock Hill. Furthermore, given that the stores scheduled for this development are second-tier stores (Stein Mart, Books-A-Million, McAlister’s Deli, Michael’s) or another branch of a franchise that has other stores operating nearby (Starbucks and Cold Stone Creamery come to mind), I doubt that this is going to be the money-maker that Rock Hill envisions it to be.
As a side note, if this project does not get developed, Rock Hill doesn’t have many options, right? They could declare bankruptcy, or sell off more of their services to other towns (which would make all the people who have been pulled over for going 32 in a 30 zone happy), or they’ll probably try again to put something where 25 homes and small businesses used to reside.
“St Louis city is big enough that it, in msot cases, doesn’t need to steal business from “across the street”.”
Hmmm… one exception though was the generally agreed retail disaster St. Louis Marketplace, the city’s first TIF (and for better or worse, the only one backed by general revenue), which included relocating the old Maplewood K-Mart (the one with scary rooftop parking once located where the new Shop N Save is today) into the StL City limits.
On that note – the customer service at the Marketplace K-Mart just gets worse and worse every time I shop there! Just this week, the checkout credit/debit card machine was not working, so the checkers tried to tell me it was because I didn’t have enough money in my account!
I had to use their cheesy, really slow ATM to get cash (paying a $2 service charge in the process!).
Next time, I think we’ll just shop somewhere else.
Meanwhile, the crappy Little Caesar’s Pizza outlet inside the K-Mart doesn’t take cards at all. Cash only.
At this point, I wish Weissmann’s Designs for Dance could just take over the entire center, and I’ll do my shopping at Target on Hampton!