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Eminent Domain: A Double-Edged Sword for Historic Preservation 

12-09-2015 17:35

The use of eminent domain based on claims of greater public good, to acquire and tear down buildings—historic or otherwise—is stirring up debate all the way to the U.S. Supreme Court. Because this issue has many perspectives, preservationists are sometimes caught in the middle and should be aware of how eminent domain can affect their community’s ability to preserve historic areas.

The 5th Amendment to the U.S. Constitution (made applicable to the states through the 14th Amendment) recognizes that local, state, and federal governments have the power to condemn private property for “public use” through eminent domain. It requires the government to pay “just compensation” to property owners, and to follow due process standards when exercising its eminent domain authority.

Early on, eminent domain was most often associated with securing right-of-way for highways and railroads. But in the 1950s, governments used their condemnation powers to accomplish other government programs such as urban renewal. This effort led to the landmark U.S. Supreme Court case Berman v. Parker, in which the Court recognized the authority of local governments to condemn “blighted” areas in order to improve them: “The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.”

In more recent years, eminent domain has been used for economic development or job creation projects with significant benefits to private entities. For example, condemnation powers were used in the late 1970s to acquire and demolish thousands of homes and dozens of churches and businesses in the Poletown neighborhood of Detroit for construction of a General Motors plant. Although local governments, historically, have been reluctant to use eminent domain, and often have done so only as a last resort, things are changing. More and more communities are using eminent domain to take property designated as “blighted” and transferring it to private business interests for redevelopment. This practice has led to public outcry, often resulting in contentious local battles that see property owners fighting back with litigation.

Indeed, the abuse has become so prevalent that in July 2004 the Michigan Supreme Court reversed its 1981 ruling upholding the use of eminent domain in Detroit’s Poletown, and struck down Wayne County’s reliance on its condemnation authority to make way for a high-tech corporate office park. The abuse of condemnation powers is giving eminent domain a sullied reputation.

Preservation Tool or Threat?

It is important for preservationists to understand that eminent domain can be an extremely effective tool for community revitalization and historic preservation. For example, some local governments are using eminent domain to acquire privately owned historic properties that are vacant and abandoned, and subject to demolition by neglect, and then putting those properties in the hands of other owners who will commit to investing in their preservation, rehabilitation, and reuse. The resulting public benefit is clear, as is the need for a combination of public and private investment.

However, eminent domain also has a long track record of being used in ways that are destructive to historic buildings. Increasingly, we are seeing examples calling for large-scale demolition and proposed new developments Pittsthat are out of character and scale with their surroundings. Remember Baltimore’s “revitalization” plan for the West Side of downtown that involved the condemnation and demolition of approximately 150 structures? Or Pittsburgh’s Fifth and Forbes proposal to build a $522 million retail and entertainment complex that required razing 62 buildings and displacing more than 120 businesses? In both cities, at risk was the loss of architecturally and historically significant buildings and locally owned and operated businesses. The plans prompted the National Trust to include the West Side of downtown Baltimore on its 1999 list of America’s 11 Most Endangered Historic Places, and Pittsburgh’s Fifth and Forbes on its 2000 list. Opponents suggested less-intrusive alternatives and likened the plans to failed 1960s-era urban renewal schemes.

Baltimore has now scrapped its plans and, after nearly three years of heated debate, Pittsburgh’s Mayor Murphy finally pulled the plug on the redevelopment. National Trust President Richard Moe stated at the time, “This decision sends a message nationally that proposals to demolish historic downtowns in order to save them do not work.” Ultimately the planned use of eminent domain in Pittsburgh, benefiting an out-of-state private developer, proved to be a major impediment because there was little public support for this approach.

Other examples can be found throughout the country. In Ardmore, an affluent Main Line community outside Philadelphia, downtown property owners are readying themselves for a legal fight to block a redevelopment plan that calls for the acquisition through eminent domain and demolition of seven to eight buildings. While other elements of the plan are positive, the proposed demolition of contributing buildings within a locally designated historic district is disturbing. As a necessary step in the eminent domain process, the buildings were recently deemed “blighted” despite being maintained and occupied by a diverse mixture of established, locally owned businesses.

The local government favors a plan that includes new construction and a parking garage, which officials claim will provide more direct and faster revitalization of the business district. An Urban Land Institute (ULI) study of Ardmore concluded that demolition will diminish the character of historic Ardmore and adversely affect revitalization efforts. The National Trust backs the ULI findings and recently testified against the plan, advocating instead for a Main Street approach that avoids demolition and focuses on the retention and continued use of existing buildings. Where feasible, the Trust believes communities like Ardmore do best when they build upon their unique assets, rather than destroying and replacing them.

New Limits Are Possible

Pittsburgh, Baltimore, Ardmore, and other examples out of Ohio and Michigan are emblematic of the trend on a large scale. Now a case from New London, Conn., may place limitations on eminent domain authority nationwide and result in a stricter standard for ensuring that redevelopment advances a legitimate public use and benefit.

On February 22, 2005, the U.S. Supreme Court heard arguments in the case of Kelo v. City of New London, Conn. The city wants to use eminent domain to condemn an entire neighborhood, known as Fort Trumbull, and transfer it to a private developer. Adjacent to a major Pfizer corporate facility, the redevelopment proposes replacing older homes and businesses with a waterfront hotel, condominiums, a conference center, and offices. Opponents claim private economic development is not a public use. In 2000 the Connecticut Trust for Historic Preservation placed the neighborhood on its statewide list of endangered places. Although much of the neighborhood has now been leveled, the legal case continues.

The U.S. Supreme Court is expected to rule in the case before the end of June. As one of the most significant eminent domain cases in years, this ruling could have major implications for historic preservation and community revitalization interests.

The aggressive use and abuse of eminent domain powers by local governments has given a very effective planning tool a bad image. However, it is important to understand the extreme arguments being advanced by the Institute for Justice on behalf of the property owners. While the Institute for Justice has been helpful to historic preservation groups in places like Pittsburgh, by fighting eminent domain abuses, its position would largely prohibit involvement by private developers, even where eminent domain is being used specifically for historic preservation.

Perhaps the concerns are best stated by Jane Jacobs, planning guru and author of the landmark book The Death and Life of Great American Cities. Jacob’s brief filed with the Supreme Court claims some redevelopment projects go too far and replace “real neighborhoods with counterfeits.” She further explains, “The costs of development takings are disproportionately inflicted on poor and minority communities, because these groups are disadvantaged in the political process, especially relative to the powerful corporate and private interests that benefit from economic development condemnations.”

Publication Date: Spring 2005

#Legal #ForumJournal

Subtitle:A Double-Edged Sword for Historic Preservation
Author(s):Adrian Scott Fine

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