Columnists :: City Streets
It’s time so seize the eminent domain debate in Massachusetts by Shirley Kressel
contributing writerFriday Mar 5, 2010 Massachusetts is one of a handful of states that has taken no action to restrain eminent domain-the government’s ability to seize property rights with due monetary compensation but without the owner’s consent-after the Supreme Court’s 2005 Kelo decision finding eminent domain for private use constitutional. It seems self-evident that forcibly taking property from one owner and giving it to another for financial gain is unfair-even un-American; yet, our legislature seems reluctant to take up the Court’s suggestion that states may enact their own restrictions. The reason is a lingering-but mistaken-belief that eminent domain is an indispensable tool for economic development and tax base enhancement.
But the opposite is true. The evidence has been clear since 1964, when Martin Anderson, then with MIT/Harvard’s Joint Center for Urban Studies, published a book titled The Federal Bulldozer, an analysis of the economic impacts of eminent domain as used in urban renewal. He provided clear documentation that in the years since private-benefit eminent domain became government policy in 1949, it had cost the taxpayers hugely more than it produced, and boded to remain a liability for the foreseeable future. Indeed, Boston is today still pock-marked with several hundred acres of land taken, cleared and held tax-exempt by the Boston Redevelopment Authority, land where people and businesses would have supported vibrant community life and paid taxes for these forty or fifty years. Eminent domain drove out residents, broke up communities, and decimated the small-business base.
In 2008, a Wall Street Journal editorial discussed a study by a private organization, Institute for Justice, which found no discernable hindrance to economic activity from the restriction of eminent domain, even in states implementing the strongest reforms after Kelo. The Journal agreed with the report, noting that although developers like to get land the government forces sellers to give up at cheap prices, and politicians like to play power games picking winners and losers, projects that can’t stand on their own shouldn’t be propped up by the taxpayers.
In 2009, William J. Stern, who ran the New York State Urban Development Corporation’s Times Square redevelopment project, wrote a report revealing that eminent domain "delayed development, added tremendous cost, and was unfair and inefficient"-and fraught with corruption.
It’s only logical that eminent domain-like other unfair public subsidies-would have negative effects. First, this kind of government intervention props up bad business plans and encourages overblown, risky projects that would be weeded out by the private markets, often leaving the city to clean up a big mess. Aside from the empty lots scarring the city, Filenes, Columbus Center and North Point are three recent grandiose local plans that were given all sorts of land, regulatory and tax favors, only to collapse of their own overreaching weight. Pfizer, the corporation for which the City of New London seized and destroyed Suzette Kelo’s home and neighborhood, recently decided "nevermind," and moved out of town altogether, showing again, as the Wall Street Journal reported, "the futility of eminent domain as corporate welfare." Read Nicole Gelinas’s City Journal story of the Atlantic Yards project in New York, where decay and disinvestment are the result of "a half-decade’s worth of government-created uncertainty, which stopped genuine private investment in its tracks." We started to see tenants leaving and building maintenance neglected in the Fenway ten years ago, when a large swath of the neighborhood was declared blighted (or "potentially" blighted!) because the Red Sox team owners wanted to relocate the ballpark and fill its current site with profitable towers. Eminent domain costs the taxpayers money up front in takings compensation, and then for unpredictable periods of time in the loss of taxpaying properties. It destroys organically evolved communities and tries to replace them wholesale with artificial aggregates of buildings and people that don’t fit into the context and lack the interstitial tissue to function cohesively. And it end-runs the competitive markets, putting decisions into the hands of politicians with short-term political and financial goals, and engenders corruption, cronyism, and influence-peddling. Eminent domain is bad government and bad business.
As the WSJ reminds us, private development went along very nicely for centuries before politicians decided to take property from one person for the benefit of another. As Stern learned from his Times Square experience, "There was no shortage of developers willing to acquire property the old-fashioned way-through the private market."
In today’s climate of economic distress, politicians are especially vulnerable to the fear-mongering lobbyists’s argument that we mustn’t lose any tool that could stimulate the economy. But the facts on eminent domain should liberate our elected officials to do the right thing-if that’s what they want to do. They should act now to eliminate private-benefit eminent domain, both by legislation and by constitutional amendment, to get government out of the business of business, let the competitive market determine development, and use scarce public money for real public needs.
The Judiciary Committee just heard several bills that would prohibit eminent domain for other than the traditional public uses-schools, parks, roads, etc. House Bill 1778 in particular serves the purpose well: it contains no "blight" loopholes, and would also prevent eminent domain taking of public land for private use.
Write to your legislators before March 17, the Committee decision date, and tell them to pass H. 1778. More important, tell them to pass a constitutional amendment prohibiting private-use eminent domain at the Constitutional Convention scheduled for July 29. Without this amendment, each politically wired developer will simply get a new law passed that allows for a taking s/he wants, "notwithstanding any other laws to the contrary."
The last word, again from the Wall Street Journal: "If there is a lesson from Connecticut’s misfortune, it is that economic development that relies on the strong arm of government will never be the kind to create sustainable growth."
Shirley Kressel is a landscape architect and urban designer, and one of the founders of the Alliance of Boston Neighborhoods. She can be reached at Shirley.Kressel@verizon.net.
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