Wednesday, July 20, 2005

"Local and state authorities have stretched 'public use' to be synonymous with what their Ouija boards tell them."

Taking a sucker punch is supposed to teach you a lesson


Op-Ed By Alan Krigman
The Weekly Press & The University City Review
Copyright 2005

Members of the American middle class got sucker punched in June. Most didn't know it was coming. Many don't know what hit them. Some still haven't figured out why it happened. And more than a few won't learn anything from the experience.

I allude to Kelo v. New London, a 5-4 decision by the United States Supreme Court. The five nominal liberals (Stevens, Souter, Kennedy, Ginsberg, and Breyer) overruled the three ostensible conservatives (Scalia, Thomas, and Rehnquist) and the retiring "swing" Justice (O'Connor). The decision was that government entities could seize private property from one owner if they decided another owner would have a better use for it. This, as a reading of what the framers clearly intended to be the highly restrictive "eminent domain" clause of the 5th Amendment, which states, "... nor shall private property be taken for public use, without just compensation."

The ruling hinged on the meaning of "public use." This originally involved site-specific necessities like bridges but segued early-on into communal facilities including police stations, schools, and libraries. Over the years it was extended to such things as rights of way for railroads or power lines, which were privately owned but regulated as "common carriers" available to all, and which required contiguous holdings. Later, it was applied to urban renewal projects involving the demolition of structures determined to be "blighted" because they constituted a hazard to public safety and health, which hardly anybody disputes governments should protect.

More recently, local and state authorities have stretched "public use" to be synonymous with what their Ouija boards tell them comprises the "public benefit" or "greater good" that will result from economic redevelopment plans projected to yield greater tax revenues. The Court affirmed this interpretation. This broadened theory of "public use" is generally traced to the 1981 "Poletown" decision of the Michigan Supreme Court. That case allowed the forced sale and leveling of everything in a viable, ethnic, blue-collar neighborhood so General Motors could build a Cadillac plant there. Those who followed this precedent ignored the little fact that the plant neither created the jobs nor gave Detroit the tax revenues promised. And, last year, the same Court reversed itself in Wayne v. Hathcock, ruling that the Poletown decision had been wrong. Far too late for the displaced persons of Poletown.

So, why was Kelo v. New London a sucker punch? Until middle class people learned about this case, they typically assumed property taken for economic development was substandard and undoubtedly not worth saving. The attitude was often that the affected parties could always live or work elsewhere and would be better off if they did. Forget John Howard Payne's underlying sentiment in writing, "Mid pleasures and palaces though I may roam / Be it ever so humble, there's no place like home."

Now, the middle classes suddenly realize it could happen to their castles as well. A neighborhood needn't be in a state of decay for a use to be proposed that someone claiming to be a visionary says would induce greater tax revenues. Maybe the governor's newest closest personal friend, Donald Trump, would convince City Council that instead of owner-occupied rowhouses on the 4200 block of Regent Square (in Spruce Hill overlooking Clark Park), a high-rise condo would bring in the bucks to keep the Walnut West Library open full-time. Or accountants might haul in reams of spread sheets demonstratng how many jobs would be created (moving people from welfare to work, removing them from the dole while generating wage tax revenues), how much property assessments would rise (increasing real estate tax income), and how sales would grow (there's that 6% for the state and 1% for the city in sales taxes) if the Parking Authority had the power to condemn and demolish "Rindelaub's Row" then sell or lease the land to WalMart or Costco for a new in-town big box store with a garage below and office suites above.

As long as we're only playing arguendo, envision a scenario under these circumstances in which the denizens of Regent or Rittenhouse Square, fighting to save their homes and businesses rather than taking "fair market value" (which is how "just compensation" is usually set these days), fall back on the historic heritage purportedly inherent in the bricks, mortar, and balusters. Of course, doing so would be a tad duplicitous. This, because the costs of ownership associated with historically designated buildings that are old but not architecturally or culturally distinguished are among the factors the same solid citizens employ to gentrify neighborhoods without tearing them down. And the social engineering effect is akin to that of eminent domain for economic development. It drives folks - folks on a lower rung of the socioeconomic ladder, to be sure - out of their homes and businesses.

Or, maybe they think it's all right, as Winston Smith said in the novel, 1984, to "do it to Julia."

© 2005 The Weekly Press & The University City Review: