Thoughts on Kelo v. New London
There is an inherent dichotomy (or paradox perhaps?) in how "the land" is regarded in this nation...it is both a commodity and a resource. This dichotomy is complicated by the concept of "property" in that every bit of "the land" must be "owned" by someone, whether it be a private individual or the state.
The issue of property weighed large in the Founding Fathers' minds. The Declaration of Indpendence states, in part: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" but this drew on John Locke's assertion that each man has "a power not only to preserve his property—that is, his life, liberty and estate, against the injuries and attempts of other men, but to judge of and punish the breaches of that law in others." We can infer that the "pursuit of Happiness" entails the "pursuit of property," in particular an "estate," physical landholdings.
The Fifth Amendment to the Constitution reads, in part: "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The Fourteenth Amendment further elaborated this concept by stating, in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Yesterday the Supreme Court ruled in the case of Kelo v. New London, which concerned the issue of property rights, namely the right of the state to "take" private property for a "public use" through "eminent domain." At issue here was whether New London's redevelopment plan for the Fort Trumbull neighborhood constituted a public use. In a 5-4 decision, the Supreme Court determined that the redevelopment could indeed be considered a public use and that the utilization of eminent domain was therefore justified.
The Founding Fathers' concerns about property were understandable, considering that the new United States of America was in large part a rejection of centuries of European fedualism. The concept of private property rights meshed nicely with the tenets of "Jeffersonian Democracy," which viewed the ideal United States as an "agrarian republic" of "yeoman farmers." Each man would be sovereign over his plot of land and would be able to provide for himself and his family, but would also be obligated to see his interests in and responsibilities for the stability and well-being of the larger nation. The great push westward, exemplified by Jefferson's engineering of the Louisiana Purchase, was a means by which more and more land could be acquired to house a growing nation of independent farmers. In this time and place, the "taking" of private property for "public use" could easily be limited to things such as roads, schools, and other things that were inarguably necessary for the common good of the nation as a whole.
A lot changed from the days of Jefferson up to 1920. The two most important developments were the "Industrial Revolution" and the related movement of the nation's populance to cities. 1920 is a pivotal year as the 1920 Census documented that more people lived in cities than in rural areas for the first time in United States history. The perception of property rights in relation to the powers of the government changed accordingly.
The first move towards a new era of property rights was the widespread adoption of zoning laws in cities during the 1920's. Zoning, in essence, is a set of regulations that are placed upon private property within a municipality's jurisdiction. The primary impetus for zoning was that the Industrial Revolution had made cities nearly unbearable places to live. The stated purpose of zoning was to "protect" residential districts from the intrusion of objectionable "nuisance" uses (mostly industrial in nature) in order to ensure a more orderly, healthful development of the community. The idea that cities had a right to impose such restrictions on property was a contentious one - the Supreme Court, though, declared it constitutional in the case of Village of Euclid v. Ambler Realty Co. in 1926. Despite the fact that zoning is now commonplace and was deemed "constitutional" nearly 80 years ago, the concept is still contentious today - I know this well because my job for nearly 4 years has been to enforce the zoning law in the unincorporated areas of Los Angeles County. People are still amazed and bewildered by the idea that the government can tell them what they can do with their private property without actually buying it outright - of course, I think the Founding Fathers would be too.
The "Great Depression" and the resultant "New Deal" launched by President Franklin D. Rooselvelt were transfiguring events in United States history. The program most pertinent to this discussion was the 1937 Housing Act, which placed the Federal Government in the housing business by enabling municipal jurisdictions to design, build, and manage "public housing" with Federal funds. In 1937, there was an obvious need for affordable, quality housing for the poor that the private sector was unable to provide. Tenements and shanty towns had long provided afforable housing, but they were viewed as undesirable, a "blight" on the cities.
The execution of the 1937 Housing Act did not entail the construction of "public housing" on vacant land, at least not in how it was executed by municipal jurisdictions; it entailed the elimination of "substandard" housing in order to construct "modern public housing," often through public acquisition of private property through eminent domain. Legitimacy had been given to the concept of "slum clearance, " i.e. the elimination of neighborhoods deemed "undesirable" by the state for a greater "public good." Of course, "slum" became a pejorative term and the motiviations of municipal jurisdictions who wished to eliminate "slums" were often duplicitous, disingenuous, and racist and/or classist in nature. Slums were defined as containing "blight" or being "blighted," a relative term if ever there was one. "Blight" meant (and still often means) the presence of poor people, people of color, or both.
The 1937 Housing Act, though well-intentioned, set a dangerous precedent. The 1949 Housing Act went much further, giving municipal jurisdictions authority to acquire land via eminent domain under the guise of "redevelopment," which did not necessarily entail the creation of affordable, quality housing. A lot had changed between 1937 and 1949, most importantly that we had fought and ostensibly "won" World War II. In many respects, I consider that war to be a far greater transfiguring experience for the United States than the Great Depression and New Deal. Europe and Asia were comparatively devastated; the United States became a "superpower" that was in a position to dominate world economics and politics (and, as we've only recently learned, a far better position than our primary "competitor" and "enemy" - the other "superpower" known as the Soviet Union). While we felt empowered to change and shape the world, we also felt empowered to shape and change our own "backyard," our nation's cities.
I tend to view the ensuing events through the prism of Los Angeles, which is representaive and instructive. Allow me to recommend "The Provisional City" which discuss this era in detail. In Los Angeles, as in many other cities, the 1949 Housing Act was viewed as a way to "redevelop" the city's "slums" into oases of modern public housing. But all that was to change. In the post-WWII environment of paranoia and "McCarthyism," the concept of "public housing" was seen as "un-American" and a harbringer of "creeping socialism." Furthermore, the economy had rebounded and well-organized private-sector builders such as Fritz Burns felt they could provide the city's necessary housing through mass-produced, mass-marketed subdivisions on the fringes of the city, such as Westchester, Panorama City, and Lakewood.
The two main L.A. neighborhoods scheduled for "slum clearance" and conversion to public housing were Bunker Hill and Chavez Ravine, both adjacent to "downtown." Bunker Hill had been the city's first "posh neighborhood," an area of grand Victorian homes that had become a "seedy" district of cheap hotels and "flophouses" well documented in Raymond Chandler novels of the era, whereas Chavez Ravine was an agricultural community largely inhabited by Mexican-Americans. The original intent was to eliminate both in order to create new, more "moral" communities of modern, public housing. The end result, however, was that Bunker Hill became the "new" central business district full of modern office towers - a wholesale defection from the historic Broadway and Spring Street corridors occured after the 1965 Watts Riots, and the old buildings were left abandoned and unoccupied until the adaptive reuse ordinance was passed in 1999. The story at Chavez Ravine was far more tragic - after clearing the area, the City of Los Angeles chose to sell the site to the Dodgers for $1 to build a grand baseball stadium. Many in the Latino community still resent this - I don't blame them at all.
Moving forward to 2005, the Supreme Court seems to be saying that not only were those earlier (questionable) "takings" of "blighted" property justified, but that the "taking" or property that is not necessarily "blighted" is also justified. Perhaps this is in recognition of the fact that "blight" is not a particularly useful term, but it also speaks to a municipality's right to decide its own economic destiny. Essentially the Court said that cities are in control of their own land use (in due deference to Euclid v. Ambler) and that the "economic development" of any portion of a city may be considerded a "public good" that will benefit all citizens of the city although some may be displaced (through increased taxes, and therefore, increased services). I am not sure if I agree.
I have become increasingly suspicious of the "planning and development" community's historic assertion that it knows what is best for its city's residents. Public housing was an utter failure - the best examples are Pruitt-Igoe in St. Louis and Cabrini-Green in Chicago. Redevelopment was also a failure - the fact that L.A. is so fascinated with "filling in" the parking lots between Bunker Hill and the Civic Center to (at last) create a "Grand Avenue" is abundant evidence that moving "downtown" a few blocks to the west (closer to the Harbor Freeway) may have caused more problems than it sought to "solve." Do we really represent the "public" interest, or the interest of property owners and developers who wish to make obscene amounts of money with government sanction?
If the government decides it can take your property "with just compensation" in order to utlize it to its "highest and best use" in an economic sense, would you be "OK" with that? I doubt it. We have to question whether "public use" is synonomous with "highest and best use" in that local governments seem to disregard the value of (now scarce) land as a resource when considering the productivity of land as a commodity. I often think that the Native Americans who inhabited this land long before the Founding Fathers arrived had a far better understanding of the value of "land" than we do. It is a resource more than a commodity. Profit must take a back seat to sustainability.
A 5-4 decision by the Supreme Court implies an ideological divide that could very well be overcome by the appointments President George W. Bush could make between now and January 2009. The issue for urban planners, regardless of whether they agree with the decision, is to question their mandate, policies, and procedures. Are we helping to create a better United States, one that will better ensure that our cities can sacrifice individual gains so we may enable a common good? I am not convinced the Supreme Court thinks so (despite their decision in Kelo v. New London) - nor do I think so - so let's think of ways that we can convince people that the concepts of zoning and redevelopment can respect property rights and be relevant in the 21st Century.
The issue of property weighed large in the Founding Fathers' minds. The Declaration of Indpendence states, in part: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" but this drew on John Locke's assertion that each man has "a power not only to preserve his property—that is, his life, liberty and estate, against the injuries and attempts of other men, but to judge of and punish the breaches of that law in others." We can infer that the "pursuit of Happiness" entails the "pursuit of property," in particular an "estate," physical landholdings.
The Fifth Amendment to the Constitution reads, in part: "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The Fourteenth Amendment further elaborated this concept by stating, in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Yesterday the Supreme Court ruled in the case of Kelo v. New London, which concerned the issue of property rights, namely the right of the state to "take" private property for a "public use" through "eminent domain." At issue here was whether New London's redevelopment plan for the Fort Trumbull neighborhood constituted a public use. In a 5-4 decision, the Supreme Court determined that the redevelopment could indeed be considered a public use and that the utilization of eminent domain was therefore justified.
The Founding Fathers' concerns about property were understandable, considering that the new United States of America was in large part a rejection of centuries of European fedualism. The concept of private property rights meshed nicely with the tenets of "Jeffersonian Democracy," which viewed the ideal United States as an "agrarian republic" of "yeoman farmers." Each man would be sovereign over his plot of land and would be able to provide for himself and his family, but would also be obligated to see his interests in and responsibilities for the stability and well-being of the larger nation. The great push westward, exemplified by Jefferson's engineering of the Louisiana Purchase, was a means by which more and more land could be acquired to house a growing nation of independent farmers. In this time and place, the "taking" of private property for "public use" could easily be limited to things such as roads, schools, and other things that were inarguably necessary for the common good of the nation as a whole.
A lot changed from the days of Jefferson up to 1920. The two most important developments were the "Industrial Revolution" and the related movement of the nation's populance to cities. 1920 is a pivotal year as the 1920 Census documented that more people lived in cities than in rural areas for the first time in United States history. The perception of property rights in relation to the powers of the government changed accordingly.
The first move towards a new era of property rights was the widespread adoption of zoning laws in cities during the 1920's. Zoning, in essence, is a set of regulations that are placed upon private property within a municipality's jurisdiction. The primary impetus for zoning was that the Industrial Revolution had made cities nearly unbearable places to live. The stated purpose of zoning was to "protect" residential districts from the intrusion of objectionable "nuisance" uses (mostly industrial in nature) in order to ensure a more orderly, healthful development of the community. The idea that cities had a right to impose such restrictions on property was a contentious one - the Supreme Court, though, declared it constitutional in the case of Village of Euclid v. Ambler Realty Co. in 1926. Despite the fact that zoning is now commonplace and was deemed "constitutional" nearly 80 years ago, the concept is still contentious today - I know this well because my job for nearly 4 years has been to enforce the zoning law in the unincorporated areas of Los Angeles County. People are still amazed and bewildered by the idea that the government can tell them what they can do with their private property without actually buying it outright - of course, I think the Founding Fathers would be too.
The "Great Depression" and the resultant "New Deal" launched by President Franklin D. Rooselvelt were transfiguring events in United States history. The program most pertinent to this discussion was the 1937 Housing Act, which placed the Federal Government in the housing business by enabling municipal jurisdictions to design, build, and manage "public housing" with Federal funds. In 1937, there was an obvious need for affordable, quality housing for the poor that the private sector was unable to provide. Tenements and shanty towns had long provided afforable housing, but they were viewed as undesirable, a "blight" on the cities.
The execution of the 1937 Housing Act did not entail the construction of "public housing" on vacant land, at least not in how it was executed by municipal jurisdictions; it entailed the elimination of "substandard" housing in order to construct "modern public housing," often through public acquisition of private property through eminent domain. Legitimacy had been given to the concept of "slum clearance, " i.e. the elimination of neighborhoods deemed "undesirable" by the state for a greater "public good." Of course, "slum" became a pejorative term and the motiviations of municipal jurisdictions who wished to eliminate "slums" were often duplicitous, disingenuous, and racist and/or classist in nature. Slums were defined as containing "blight" or being "blighted," a relative term if ever there was one. "Blight" meant (and still often means) the presence of poor people, people of color, or both.
The 1937 Housing Act, though well-intentioned, set a dangerous precedent. The 1949 Housing Act went much further, giving municipal jurisdictions authority to acquire land via eminent domain under the guise of "redevelopment," which did not necessarily entail the creation of affordable, quality housing. A lot had changed between 1937 and 1949, most importantly that we had fought and ostensibly "won" World War II. In many respects, I consider that war to be a far greater transfiguring experience for the United States than the Great Depression and New Deal. Europe and Asia were comparatively devastated; the United States became a "superpower" that was in a position to dominate world economics and politics (and, as we've only recently learned, a far better position than our primary "competitor" and "enemy" - the other "superpower" known as the Soviet Union). While we felt empowered to change and shape the world, we also felt empowered to shape and change our own "backyard," our nation's cities.
I tend to view the ensuing events through the prism of Los Angeles, which is representaive and instructive. Allow me to recommend "The Provisional City" which discuss this era in detail. In Los Angeles, as in many other cities, the 1949 Housing Act was viewed as a way to "redevelop" the city's "slums" into oases of modern public housing. But all that was to change. In the post-WWII environment of paranoia and "McCarthyism," the concept of "public housing" was seen as "un-American" and a harbringer of "creeping socialism." Furthermore, the economy had rebounded and well-organized private-sector builders such as Fritz Burns felt they could provide the city's necessary housing through mass-produced, mass-marketed subdivisions on the fringes of the city, such as Westchester, Panorama City, and Lakewood.
The two main L.A. neighborhoods scheduled for "slum clearance" and conversion to public housing were Bunker Hill and Chavez Ravine, both adjacent to "downtown." Bunker Hill had been the city's first "posh neighborhood," an area of grand Victorian homes that had become a "seedy" district of cheap hotels and "flophouses" well documented in Raymond Chandler novels of the era, whereas Chavez Ravine was an agricultural community largely inhabited by Mexican-Americans. The original intent was to eliminate both in order to create new, more "moral" communities of modern, public housing. The end result, however, was that Bunker Hill became the "new" central business district full of modern office towers - a wholesale defection from the historic Broadway and Spring Street corridors occured after the 1965 Watts Riots, and the old buildings were left abandoned and unoccupied until the adaptive reuse ordinance was passed in 1999. The story at Chavez Ravine was far more tragic - after clearing the area, the City of Los Angeles chose to sell the site to the Dodgers for $1 to build a grand baseball stadium. Many in the Latino community still resent this - I don't blame them at all.
Moving forward to 2005, the Supreme Court seems to be saying that not only were those earlier (questionable) "takings" of "blighted" property justified, but that the "taking" or property that is not necessarily "blighted" is also justified. Perhaps this is in recognition of the fact that "blight" is not a particularly useful term, but it also speaks to a municipality's right to decide its own economic destiny. Essentially the Court said that cities are in control of their own land use (in due deference to Euclid v. Ambler) and that the "economic development" of any portion of a city may be considerded a "public good" that will benefit all citizens of the city although some may be displaced (through increased taxes, and therefore, increased services). I am not sure if I agree.
I have become increasingly suspicious of the "planning and development" community's historic assertion that it knows what is best for its city's residents. Public housing was an utter failure - the best examples are Pruitt-Igoe in St. Louis and Cabrini-Green in Chicago. Redevelopment was also a failure - the fact that L.A. is so fascinated with "filling in" the parking lots between Bunker Hill and the Civic Center to (at last) create a "Grand Avenue" is abundant evidence that moving "downtown" a few blocks to the west (closer to the Harbor Freeway) may have caused more problems than it sought to "solve." Do we really represent the "public" interest, or the interest of property owners and developers who wish to make obscene amounts of money with government sanction?
If the government decides it can take your property "with just compensation" in order to utlize it to its "highest and best use" in an economic sense, would you be "OK" with that? I doubt it. We have to question whether "public use" is synonomous with "highest and best use" in that local governments seem to disregard the value of (now scarce) land as a resource when considering the productivity of land as a commodity. I often think that the Native Americans who inhabited this land long before the Founding Fathers arrived had a far better understanding of the value of "land" than we do. It is a resource more than a commodity. Profit must take a back seat to sustainability.
A 5-4 decision by the Supreme Court implies an ideological divide that could very well be overcome by the appointments President George W. Bush could make between now and January 2009. The issue for urban planners, regardless of whether they agree with the decision, is to question their mandate, policies, and procedures. Are we helping to create a better United States, one that will better ensure that our cities can sacrifice individual gains so we may enable a common good? I am not convinced the Supreme Court thinks so (despite their decision in Kelo v. New London) - nor do I think so - so let's think of ways that we can convince people that the concepts of zoning and redevelopment can respect property rights and be relevant in the 21st Century.
posted by Mitch Glaser @ 12:10 PM
1 comments
1 Comments:
hey mitch,
great blogicle. My Law student two cents. Though directly implicating the "takings clause," I think Kelo is best viewed as a liberal victory in the ideological battle over the scope of government authority.
I agree that the Court is somewhat uncomfortable granting municipalities broad constitutional authority under the 5th. But I think they did it partly to mitigate the effect of Bush's appointments. Inevitably, there will be an ideological shift in the Court that will emphasize property rights. The shift may be extreme (especially considering the fact that the Institute for Justice has mined the judiciary for zealous libertarians who are among Bush's top choices) and eminent domain may be dramatically circumscribed.
This may not be a bad thing, based on your of history of zoning. But, as I believe the Court concedes, this should be left to the political process. And "we" should do our best to fix eminent domain, so we end up with more Portland's and less New London's (or Houston's).
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