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The seminal Berman v. Parker case: "precedent without context," and leading dangerously to cases like Kelo and Goldstein

The U.S. Supreme Court's unanimous 1954 decision in the case known as Berman v. Parker is a foundation of eminent domain jurisprudence, guiding courts to defer to decisions made by legislative authorities and to allow a generous definition of blight.

Of course, there's an enormous contrast between the blight found in 1954 in Washington, DC slums--nearly half the residences relied on outhouses--and the "relatively mild conditions of urban blight" in Prospect Heights, as described last November by the New York Court of Appeals in the Atlantic Yards eminent domain case, Goldstein v. Urban Development Corporation (aka Empire State Development Corporation, or ESDC).

That's because successive court decisions expanded and elaborated on the base of Berman.

But what if the unanimously-decided Berman was wrongheaded? If so, and the setting was ignored, that further undermines controversial decisions like the Supreme Court's 2005 Kelo vs. New London case and the New York Court of Appeals' 2009 decision in Goldstein vs. ESDC.

Berman and urban renewal

As Amy Lavine, a staff attorney at the Government Law Center in Albany explains in an article for The Urban Lawyer, "Urban Renewal and the Story of Berman v. Parker" (embedded below, as well as excerpted) a closer analysis, plus hindsight, suggest that the court got it wrong, missing the point and ushering some very mixed results.

And, as noted in a footnote at the end of the article, one of the most egregious examples of the spawn of Berman--"precedent without context"--is the Atlantic Yards eminent domain litigation, which just happens to be the subject of another article in that same Urban Lawyer issue, which Lavine wrote with me.

I'll have more on that article, titled "Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Reality in Brooklyn’s Atlantic Yards Project," tomorrow.

The two articles should have some influence--how much remains to be seen--over future discussion of these foundational cases.

(The quarterly journal is published by the American Bar Association Section of State and Local Government Law, and edited by professors and students at the University of Missouri-Kansas City School of Law.)

Lavine's also significantly responsible for criticisms of the Atlantic Yards arena bond process raised late last year by state Senator Bill Perkins. Hindsight suggests that the charge that the arena does not deserve a tax exemption was off the mark, but that questions about the Empire State Development Corporation's use of the Brooklyn Arena Local Development Corporation to issue debt--and thus avoid oversight--linger unresolved.

Some choice excerpts from Berman

Before I get to the Lavine article (an illustration from which is at right), the Berman opinion, written by Justice William O. Douglas, is worth a look. Note this foundational sentence:
The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one.
And note the reference to "disease," as if a slum could expand and ravage all in its path, a far cry from the Atlantic Yards footprint, shaped a bit like a wrench (below, next section), excluding most of Dean Street between Sixth and Carlton Avenues:
In the present case, Congress and its authorized agencies attack the problem of the blighted parts of the community on an area rather than on a structure-by-structure basis. That, too, is opposed by appellants. They maintain that since their building does not imperil health or safety nor contribute to the making of a slum or a blighted area, it cannot be swept into a redevelopment plan by the mere dictum of the Planning Commission or the Commissioners. The particular uses to be made of the land in the project were determined with regard to the needs of the particular community. The experts concluded that if the community were to be healthy, if it were not to revert again to a blighted or slum area, as though possessed of a congenital disease, the area must be planned as a whole. It was not enough, they believed, to remove existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums - the over-crowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the lack of light and air, the presence of outmoded street patterns. It was believed that the piecemeal approach, the removal of individual structures that were offensive, would be only a palliative. The entire area needed redesigning so that a balanced, integrated plan could be developed for the region, including not only new homes but also schools, churches, parks, streets, and shopping centers. In this way it was hoped that the cycle of decay of the area could be controlled and the birth of future slums prevented.
Berman in the AY context

The ESDC, in a 12/15/06 federal court motion to dismiss the Atlantic Yards eminent domain case, drew on Berman:
The legislature “and its authorized agencies” had decided that the taking was needed to improve a blighted area, and that determination was “well-nigh conclusive.”

...In a passage that has particular resonance here, the Court explained that "[i]t is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been
decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch."
Of course, there's a huge difference in the definition of a "particularly project area," given that the redevelopment zone in Washington was hundreds of acres, while the Atlantic Yards site is a very curiously designed 22 acres, not so much a unit as the project boundary that Forest City Ratner chose.

That didn't get anywhere with District Court Judge Nicholas Garaufis, who wrote in June 2007 that even if the plaintiffs’ own properties are not blighted, non-blighted properties may be subject to eminent domain, according to Berman, “if the redevelopment is intended to cure and prevent reversion to blight in some larger area that includes the property.”

However, he didn't grapple with the fact of the curiously-drawn map. Nor did he grapple with such pesky things as an area-wide market study, because it was never done.

I reported in November 2007 that Matthew Brinckerhoff, attorney for the Atlantic Yards eminent domain plaintiffs, tried to contrast this case with Kelo, which went through a trial, and Berman, where "there were undisputed facts."

Actually, as Lavine explains, there were very much disputed facts, some ignored by the Supreme Court.

But Brinckerhoff, in his August 2007 brief in the federal eminent domain case, did point to some significant differences between Berman and AY: for example, the identity of the private developer was unknown and the beneficiaries of eminent domain didn't conceive the project.

Arguing before a federal appellate court in October 2007, Brinckerhoff suggested that Berman case had “radically different” circumstances, given that a legislative finding that the area was in need of renewal was followed by a request for proposals.

The Court of Appeals in its November 2009 dismissal of the Atlantic Yards litigation, drew a line from Berman:
[I]n Yonkers Community Dev. Agency v Morris [1975], in reviewing the evolution of the crucial terms' signification and permissible range of application, we noted:
"Historically, urban renewal began as an effort to remove 'substandard and insanitary' conditions which threatened the health and welfare of the public, in other words ‘slums’ (see NY Const, art XVIII, §1), whose eradication was in itself found to constitute a public purpose for which the condemnation powers of government might constitutionally be employed. Gradually, as the complexities of urban conditions became better understood, it has become clear that the areas eligible for such renewal are not limited to “slums” as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose."
Consider the Court of Appeals's June 2010 decision in the Columbia University litigation:
Not only has this Court, but the Supreme Court has consistently held that blight is an elastic concept that does not call for an inflexible, one-size-fits-all definition (see Berman v Parker)
From the article

Lavine writes that much context has been lost:
Although Berman v. Parker would have lasting and far-reaching effects, the Supreme Court’s treatment of the issues was limited.

...Yet while Berman v. Parker is frequently cited by the courts, it is rarely analyzed in detail and it is almost never set in its proper historical context. In 2005, when the Supreme Court upheld the use of eminent domain for economic development in Kelo v. City of New London, the Court cited Berman for numerous propositions. Its short description of the case, however, did not give any intimation of the racial and socioeconomic discrimination that would infuse urban renewal programs around the country in the years to follow. It did not discuss how historic neighborhoods were bulldozed for interstate highways that divide our cities and fuel the growth of sprawling, unsustainable land development patterns. It did not explain how communities were broken up and scattered, or how many low income families were relocated into public housing projects characterized by concentrated poverty and racial segregation. Justice O’Connor, in her dissent, did address these topics, and her opinion contributed to the wave of anti-Kelo sentiment that led to widespread eminent domain reform among the states.
The problem of extreme deference

Lavine suggests that the Supreme Court was supine:
Berman v. Parker, in short, has become precedent without context, a mantra invoked to avoid searching judicial review. More attention, however, should be given to the case. The lack of policy guidance from the federal government during the urban renewal era—both from the Court and from Congress—was not recognized as a problem until much damage had already been done. The governmental goals of blight removal and redevelopment were not inherently bad—indeed, many slums, including those involved in Berman v. Parker, were rid of true public nuisances as a result of urban renewal projects. But the Supreme Court’s extreme deference allowed urban renewal projects to go forward across the country with an astonishing lack of attention to the welfare of the people that the programs were supposed to benefit.
The language of blight

As noted above, "blight" was seen as a disease. Lavine teases out some of the lingo:
Unlike earlier attempts to address the alley dwelling problem through piecemeal condemnations and street conversions, planners in the late 1920s and early 1930s sought legislation that would authorize the full scale clearance of troubled alley areas. The term “blight” entered the urban planning lexicon at about this time, offering a “scientific” analogy between patterns of city decay and botanical epidemiology. Just as the destruction of all possible host plants within a given geographical area was considered to be an appropriate governmental response to outbreaks of plant disease, planners and sociologists claimed that slum clearance was necessary to prevent the spread of urban blight.

Otherwise, as Washington-based architect Louis Justement explained in 1933, "‘existing blighted areas will continue to degenerate into slums and new areas will be developed in the suburbs, constantly draining the population of the older city.’” Advocates of slum clearance also pointed out that the costs of providing municipal and social services to slum areas often outmeasured the revenues brought in from property taxes.
Who's in charge?

The urban renewal process emphasized private enterprise:
When slum clearance legislation was passed in Washington in 1946, the real estate and business lobbies got most of what they wanted, and the task of rebuilding slum areas was essentially reserved for private enterprises... After the city approved the redevelopment plan, the newly created Redevelopment Land Agency (RLA) was then given the authority to implement it. Essentially, this entailed assembling parcels of blighted properties, clearing them, and then transferring them at subsidized prices to private redevelopment companies. When Congress allocated funding for local redevelopment programs in the 1949 Housing Act, Washington was poised to begin a process of urban renewal that would continue for decades to come.

By emphasizing the role of private enterprise and linking slum clearance to comprehensive planning, the District of Columbia Redevelopment Act presaged the transformation of United States housing policies. When Congress passed the National Housing Act of 1949, it modified the programs set up under the 1937 Housing Act by conditioning funding for slum clearance projects on affording “maximum opportunity” to private developers and by allowing slum areas to be redeveloped with other than low income housing. It also required redevelopment plans to “conform[] to a general plan for the development of the locality as a whole.”
The comprehensive plan

Lavine writes that the 1950 plan was the first attempt to develop a plan for the city in 160 years:
The NCPC identified the city’s “problem areas” based on factors such as the percentage of homes in need of major repairs or lacking indoor bathrooms, and consensus was reached that the first of the city’s renewal areas would be the Southwest quadrant of the city. This area, located just south of the National Mall, was home to some of the city’s most notorious alley dwellings. Much of the housing stock there was considered substandard—cheaper to demolish than to repair and modernize. Out of the entire 550 acre area, 43% of the residences had only outhouses, 44% did not have showers or baths, 70% had no central heating, and 21% did not have electricity. But while its physical attributes may have been lacking, Southwest was home to about 23,000 residents, and it provided a lively cultural hub for many of the city’s black residents and immigrant Jews.
Urban renewal

Lavine writes that the plan proposed demolition of nearly all the area’s buildings but called for only a fraction of the new units to be affordable:
The redevelopment area was split up into smaller segments, and the first segment to be redeveloped was selected in order to coordinate the urban renewal program with the construction of a new highway. The 76 acre “Area B,” as it was called, contained some of the city’s worst slums, was overcrowded, and had low assessment values. The city’s director of public health, moreover, had compared the census tract in which Area B was located to the rest of the city and found that death rates from tuberculosis were 136% higher and mortality from syphilis was a staggering 489% above the city average.

The 1,345 existing dwellings in Area B were home to more than 5,000 people, about 97.5% of whom were black. The redevelopment plan, however, made provision for no more than 3,600 people to be housed in the area when redeveloped. This was partly due to “the application of a sound density standard,” but also because the amount of land to be devoted to residential purposes was to be decreased and because no buildings over three stories were to be included in Area B. To mitigate displacement, the plan did require a third of the new units to be affordable, ostensibly ensuring that “a substantial number of the present low-income families in the area should be able to return after redevelopment.” It would have been “economically feasible” to include more low income housing, or even to build at a higher density, but the planning commission was wary of “hav[ing] too high a proportion of one economic group concentrated in one area.”
The commercial district

Commercial owners, not residential owners, brought the legal challenge. Lavine writes:
Regarding the commercial aspect of the project, the redevelopment plan noted that the existing commercial corridor on 4th Street was marked by “a high proportion of old, severely deteriorated buildings.” And because of a diversity of ownership and low owner occupancy rates, the planning commission concluded that the best way to “bring about the eventual re-creation of . . . a sound business district” would be to acquire most of the land and build “a new, modern shopping center.”

Two of the legal challenges brought against the redevelopment plan were eventually joined and tried in Berman v. Parker. The two cases were brought by Max Morris, the owner of a department store, and Goldie Schneider, who owned a hardware store down the street. Both stores were located on 4th Street, which was then a lively commercial area with various shops and stores, and neither of the buildings was considered to be substandard or deteriorating. Fourth Street at the time was a hub of black and Jewish life, and one of the few areas in the city, then segregated, that displayed a measure of racial harmony. It was the site of the city’s first integrated parade, and the mostly Jewish stores on 4th Street relied on business from black residents.
You can see from the illustration why the property owners might have argued that their properties were not blighted. They also argued that the Redevelopment Act was unconstitutionally vague because it failed to define either “slum” or “blighted area,” thus giving the city enormous discretion.

However, they were fighting uphill, as several state courts had allowed transfer urban renewal land to private companies:
The New York Court of Appeals had been one of the first courts to approve this type of project in 1943. The case, Murray v. La Guardia, involved a project to clear eighteen blighted city blocks in order to build thirty-five new high rise apartment buildings.
That was Stuyvesant Town.

Courts give plaintiffs hope

A few state courts, interestingly enough, gave the Berman plaintiffs hope:
These courts found that slum clearance, by itself, was insufficient to give a project a public use; the end use of the property, not just the elimination of blight, had to advance a public purpose.
As did the district court decision in Berman v. Parker.

And while the federal appellate court did hold the redevelopment law was constitutional, Lavine notes it offered "several important caveats," suggesting that "more had to be shown than the existence of a slum."

And the court even made a distinction between slums that “breed disease and crime” and blighted areas were “backward, stagnant, not properly laid out." Such fine distinctions, of course, have been lost.

The Supreme Court's opinion

Lavine takes aim at the opinion:
Compared with the district court’s opinion, which was lengthy and nuanced, Justice Douglas’ opinion for the Court skimmed over the case’s constitutional questions with artful rhetoric and elegant language. This was not altogether unexpected, as the Court at that time still adhered to a New Deal philosophy that counseled against scrutinizing Congress’ economic and social legislation. But the Justices’ hesitance to question the legislative determinations included in the redevelopment law also allowed them to avoid giving serious and considered answers to the constitutional questions raised by [District] Judge Prettyman. The Court began its opinion by noting that Congress’ intention, as set forth in the District of Columbia Redevelopment Act, was to eliminate substandard housing conditions in the District. Famously, the Court concluded that:
Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.
The City Beautiful

And Lavine suggests that the court's language was "strongly reminiscent of the City Beautiful movement, quoting the opinion:
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 the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.
Consider the absurdity of such language were it transposed to the Atlantic Yards context: "If those who govern New York decide that part of Prospect Heights should be beautiful as well as sanitary..."

The question of standards

Courts aren't supposed to do their own fact-finding, but they're not supposed to disregard inconvenient facts, either.

Lavine points out that, in the district court opinion, Judge Prettyman had pointed out that the redevelopment plan seemed to randomly include some properties on 4th Street and not others:
[T]he Court held that the Act contained adequate standards, although it did not explain why it disagreed with the district court, which had held that the law’s failure to include a definition of “blight” rendered it unconstitutionally vague.

...The Supreme Court’s response, contained in a footnote, was that the law provided sufficient standards in its definition of “substandard housing conditions,” even if did not define either “slum” or “blighted area.” The general standards listed in the definition for substandard housing conditions—“lack of sanitary facilities, ventilation, or light, . . . dilapidation, overcrowding, faulty interior arrangement, or any combination of these factors”—were adequate, and it was no matter that the law did not suggest to what degree those characteristics had to be present. Nor was it important that the law did not explain the circumstances in which nonblighted property could be taken for redevelopment; as the Court emphasized, “the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.”
Writes Lavine:
In short, the Supreme Court’s opinion in Berman v. Parker repudiated the precautionary foundations of the district court’s decision. The redevelopment law would not be upheld on slender grounds, but was to be treated with deference and interpreted broadly. This was not simply the result of Justice Douglas’ lofty writing style; the Justices were remarkably unanimous in believing that the district court’s decision had “unduly restricted the Act.”
And that leads directly to cases like Atlantic Yards, which seems to randomly include some properties on Dean Street east of Sixth Avenue. (Why? They were once needed for construction staging.)

The lack of foresight

Lavine writes:
The litigation had not considered, however, the possibility that the project would be a failure. Whether the RLA had developed effective strategies to help displaced residents find new housing was never brought up. Nor was there any discussion about the likelihood that the renewal project would have a disproportionate impact on black residents, even though Brown v. Board of Education had been decided only a few months earlier. And no consideration was given to the possibility that then prevalent conceptions of “well-balanced” communities might themselves become obsolete within a few years. All of these issues would come to haunt attempts at urban renewal over the next two decades, and Southwest Washington proved to be a typical example.
Whilethe Southwest urban renewal project worked in many ways, by attracting higher income residents back to central Washington, it has many flaws as a piece of urbanism, including the replacement of businesses with the Waterside Mall, ultimately demolished.

Lavine observes:
The newest Southwest redevelopment plans call for 4th Street to be reopened, a situation that might be described as ironic if commentators ever connected it to the facts underlying Berman v. Parker.
And she sees promises broken:
In Southwest Washington, affordability requirements were removed from the redevelopment plans even though they were one of the most important justifications for the redevelopment. The advice of public housing officials was ignored. Vast swaths of cleared land ended up lying vacant while housing options for low and moderate income residents dwindled. A black neighborhood was appropriated for wealthier white residents. A tour of Southwest today does not convey these injustices, but the fact that it has matured into a functioning residential area does not diminish the harm that was caused in the process.
And what if Atlantic Yards winds up a failure, at the very least from the perspective of removing blight in a decade, a very tall order?

The legacy

Everything has changed since the 1950s, or has it?

Lavine writes:
Although urban renewal projects like the one involved in Berman v. Parker are thus a thing of the past, eminent domain continues to be used today for similar redevelopment projects. These projects are labeled as “economic development” initiatives rather than as “urban renewal” plans. They tend to be smaller, involve the displacement of fewer people, and “[i]nstead of promising to rebuild cities, they focus on more practical aspects such as job creation.” Today, state and local governments are also more aware of the discriminatory impacts of redevelopment than they were in the 1950s and 60s, and they have taken steps to improve the fairness of the redevelopment process by making it more transparent and by improving relocation assistance programs.

Economic development takings, like urban renewal takings before them, have until very recently been almost universally sanctioned by the courts. The Supreme Court itself found no basis upon which to invalidate the taking of nonblighted land for economic development purposes in the 2005 case Kelo v. City of New London. Like many of the state courts that had found economic development to be a public purpose prior to Kelo, the Supreme Court relied heavily on Berman v. Parker. But while Berman v. Parker has been cited as justifying economic development takings, the courts have typically failed to consider either the context in which Berman was decided or the long term consequences of the federal urban renewal program. This is not necessarily a bad thing; eminent domain is merely a tool, and the fact that it was used unwisely in the redevelopment projects of the 1950s and 1960s does not mean that it will always be abused in the contemporary economic development setting.

Still, many people see the failures of urban renewal as a persuasive reason to counsel prudence and caution in granting the government such broad powers of eminent domain, and Berman ’s legacy supports this viewpoint. Justice Sandra Day O’Connor has been among the jurists to make this argument. In her dissent to the Supreme Court’s decision in Kelo, she refused to concede that economic redevelopment is any different than urban renewal, and she warned of its possible effects
Given the lack of policy guidance, "[a] similar legacy has, and will likely continue, to follow Kelo, writes Lavine, pointing in a footnote to Atlantic Yards.

The need for thoughtfulness

Lavine's not a anti-eminent domain libertarian but more of a realist:
Economic development need not be a failure, and there is no need to ban the use of eminent domain to achieve economic development goals. Although abuses exist and oversight is often poor, economic development can work and be an effective tool to promote the public welfare. Policy makers should look to the reasons why some plans fail and others succeed, and why some state policies result in more eminent domain abuse than others. This knowledge should be incorporated into substantive regulations, and the legacy of urban renewal provides us with many examples to learn from.
One example cited of a successful redevelopment plan is Melrose Commons in the South Bronx, where the city revised the plan with public input. I hope to write about Melrose Commons one of these days.

Urban Renewal and the Story of Berman v. Parker, by Amy Lavine


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