Thursday, November 09, 2006

After Michigan vote, AY project wouldn't fly there

What if the Atlantic Yards project were proposed for Michigan? It would be much, much tougher to approve a project that, like AY, is predicated on the elimination of blight. On Tuesday, Michigan voters by a 4-1 margin endorsed a constitutional amendment tightening the use of eminent domain.

According to the summary by the Michigan League of Women Voters, the amendment will:
--Prohibit government from taking private property for transfer to another private individual or business for purposes of economic development or increasing tax revenue.
--Provide that if an individual's principal residence is taken by government for public use, the individual must be paid at least 125% of property's fair market value.
--Require government that takes a private property to demonstrate that the taking is for a public use; if taken to eliminate blight, require a higher standard of proof to demonstrate that the taking of that property is for a public use.

The nonpartisan Citizens Research Council (CRC) offered a mixed assessment in its preview, concluding:
This proposed amendment would end the uses of eminent domain that are seen as abusive by the advocates of property rights, but at the expense of making eminent domain harder to use for even legitimate uses. It would make eminent domain more expensive for the condemning governmental units, which ultimately translates to higher costs for taxpayers, or to foregone projects.

The amendment enshrines a decision by the Michigan Supreme Court that the transfer of condemned property to a private entity may be appropriate, as the CRC notes, if:
1. “public necessity of the extreme sort” requires collective action;
2. the property remains subject to public oversight after the transfer to the private entity; or
3. the property is selected because of “facts of independent public significance,” rather than the interests of the private entity receiving the property.


Clearly, #2 would not apply to Atlantic Yards, while the other two provisions would certainly be arguable. In other words, part of this measure--which critics say go too far--likely would stop projects like AY. (And AY, independently of the Michigan moves, may violate the Supreme Court's Kelo decision because, according to a lawsuit, there was no public planning process.)

Blight redefined

In Michigan, there's a higher burden of proof to show that the property proposed for condemnation is blighted, and a requirement that blight be considered on a parcel-by-parcel basis, rather than in a neighborhood. That would eliminate the acquisition of nonblighted parcels necessary for a project. Note that there are several buildings in the Atlantic Yards footprint that the state acknowledges aren't blighted.

The CRC states:
Like “art,” “blight” is a somewhat ambiguous, relative term. What may be considered blighted in a well-to-do community may be considered perfectly acceptable in less wealthy communities. This proposal would require that the governmental unit proposing condemnation provide clear and convincing evidence that the property is blighted and the application of eminent domain will serve a public use of eradicating blight.

The implications of blight eradication on a parcel-by parcel basis, as is proposed in the amendment, are very different. It has been legislatively recognized that “blight is observable at different stages of severity, and that moderate blight unremedied creates a strong probability that severe blight will follow.”… Michigan law authorizes governments to engage in area-wide blight eradication so that moderate blight can be stopped from becoming severe blight. Requiring governments to use condemnation on only the most severely blighted properties, for which they can prove by clear and convincing evidence that blight exists, may overly restrict government officials in their efforts to make their communities attractive places to live and work. This amendment would weaken government’s ability to address moderate blight before it becomes severe.


On NPR last month, Jerry Rosenfeld, president of the JR Group in Detroit, defended eminent domain in assembling parcels, but ultimately acknowledged that the definition of blight is problematic:
But we have huge areas of property that are vacant. Let's take an area that's defined as a blighted area. And there is someone who in the middle of the blighted area that is non-conforming and we have the opportunity of a development in that property to revitalize that particular area through blight and through condemnation.
Now we happen to have done this - as people are familiar with brand new stadiums, the Lions and the Tigers - just north of here was an area called Brush Park, and this was as scary, blighted, drug-infested area as you could find in the city of Detroit. Today, because they had the ability to condemn the property, to take the people out of there - and which they did, and some of the people stayed and they had the opportunity to stay in by the homes that are in there - and they went forward and they have a great development over there.


Bob Woodson, the founder and president of the National Center for Neighborhood Enterprise in Washington, DC, responded:
You see, Jerry assumes that everybody has the same definition of blight. A place where there are rats and roaches and trash and drugs and - but that is not the case. For instance, there are neighborhoods on colonial homes in Lakewood, Ohio, they were defined as blighted because the yards were too small and they lacked two-car attached garages. The city's redevelopment plans call for upscale condominiums and retail, and therefore they condemned these properties.

So when you use the word blight, it's an emotional term and the assumption is that it is defined singly.


Rosenfeld responded:
And, Bob, you're right. That is - it is an issue. I think there should be a much better definition of the term in blight and how it is used.

The search for a better definition is ongoing nationally--and slowly.

Editorials

The state's major newspapers were split. The liberal Detroit Free Press editorialized against the measure, calling it “well intentioned but a flawed and, really, unnecessary effort,” warning that the state already had more restrictive eminent domain laws than the U.S. Supreme Court’s 2005 Kelo decision, and that the failure to define "fair market value" could lead to endless litigation.

The more conservative Detroit News endorsed the proposal, acknowledging that it would “make it more expensive for government to take private property even for legitimate public uses,” but said “its use should be expensive and relatively rare.”

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