Coyote Blog

From Scouting New York

Set into the sidewalk is a small triangle (see my sneaker for size comparison), with the mysterious message: "Property of the Hess Estate Which Has Never Been Dedicated For Public Purposes."

In 1910, the area around Christopher Street and Seventh Avenue was being widened by the city. Over 300 buildings were condemned and razed under Eminent Domain laws, including a 5-story apartment building called The Voorhis belonging to David Hess.

Hess fought the city fiercely to save his building but lost, and by 1914, this small triangle was all that was left of his property. Thinking he'd been suitably beaten down, the city asked Hess to voluntarily donate the minuscule triangle for use as part of the public sidewalk "“ but Hess refused, and had this mosaic installed on July 27, 1922. Though it inevitably became part of the sidewalk anyway, anyone who walked over the triangle couldn't help but be reminded of Hess' battle.

I would like to buy it from the Hess family and erect a triangular pedestal with a suitable statue on top, perhaps Atlas with the globe bouncing away, giving a one finger salute to the city.

This video, from Reason, is the kind of work I wish I had the time and resources to produce.  This particular episode is on using eminent domain for economic redevelopment.  Very well done.

Update: Watching the city council meeting around 8 minutes into the video is depressing.  Folks are trying to defend their property, but the only argument they can use is to try to convince the council there is more public good in their use than the proposed new use (luxury condos).  I am depressed that this is the argument they have to use.  I would love to see someone be able to just say "its mine, it does nobody else any good, but who cares?  You can't take it and give it to someone else, period."

Our brave city of Scottsdale has come up with this pioneering idea:

Scottsdale's Historic Preservation Commission wants city staff to look
into designating '50s-era garden apartments as an entire historic
district

For those who have not struggled with this, being named a historic building or site can be the kiss of death - basically it means that the government has restricted your ability to do anything with your property.  You certainly can't tear the sucker down and put something more modern on your own land and you have to go through mind-numbing approvals and use special super-high-cost contractors even to do the smallest amount of work on the structure.  In some of the public parks we run, I know of several historic buildings that are falling apart because they have been named historic buildings and the bureaucratic headaches to even stabilize the roof and stop leaks is insurmountable.  (A few years ago I nearly got arrested for putting some tar paper on the roof of a historic cabin to try to stop the rain from getting in and ruining the building.  I was told that they would rather the building crumble to dust than let any non-authentic work be done on it).

Can you imagine having your dated 50's-era ugly home or condo designated so that you can't tear it down?  Does this mean that you can't even update it, to get rid of the avocado appliances? Apparently so:

Valarie Hartzell of Park Paradise, 6936 E. Fourth St., said condo
owners there also are making improvements, but city-approved
contractors balk at installing authentic, and perhaps hard-to-get,
fixtures

The woman driving this effort reveals the thinking so typical of these efforts:

Preservation Commissioner Nancy Dallett said the rare configuration of
the apartments in a single neighborhood may qualify them for a
geographic designation.

"The strength of our district is in the clustering of the apartments,"
Dallett said at Thursday's commission meeting. "I wouldn't want to let
go of any of these within the boundaries."

Don't you love that last line?  Look Nancy, if you want something specific done with this property, buy it yourself.  But don't try to manage property you don't own at costs you don't bear for an outcome you desire.

In a nutshell, such efforts result in the effective taking of the private property to meet some public good, without any compensation.  This is eminent domain without any payment at all, thereby taking Kelo even one step further.

By the way, this means you have about 20 years before your 1970's style house is declared a landmark, and you will be stuck forever with the orange deep shag carpet and mirrored walls, so move quickly on that renovation.

I wrote before that I thought the definition of interstate commerce in Raich was crazy, but maybe there is an upside.  Under this ridiculously broad definition of interstate commerce (where growing marijuana in your backyard for persona consumption was called interstate commerce), couldn't a real estate development with tenants who are multi-state corporations also qualify?

To this end, Eugene Volokh writes that Congress is already considering legislation to control eminent domain for private development in the aftermath of Kelo:

Sen. Cornyn (R-TX) Proposes Limits on Eminent Domain:

Sen. Cornyn is introducing a federal bill (S. 1313, "The Protection of Homes, Small Businesses, and Private Property Act of 2005") that would bar "economic development" takings:

(a) . . .  The power of eminent domain shall be available only for public use.

(b) . . .  In this Act, the term "public use" shall not be construed to include economic development.

(c) . . . This act shall apply to (1) all exercises of eminent
domain power by the Federal Government; and (2) all exercises of
eminent domain power by State and local government through the use of
Federal funds.

Part C is in there to help it pass constitutional muster, but maybe Raich makes this unnecessary.

PS- I am mostly kidding here - I in no way want to condone Raich.

I criticized the use of eminent domain to advance private commercial interests here.  The Commons Blog has more:

On February 22, the Supreme Court will hear oral arguments in the case of Kelo v. New London, a case challenging the use of eminent domain for economic development. Those interested in Kelo may also be interested in today's conference on "Eminent Domain, Urban Renewal & The Constitution." The conference considers both the constitutional and policy aspects of eminent domain, particularly the use of eminent domain for economic development.