Posted by Eugene Volokh:
More on Michigan eminent domain case:
My friend Ilya Somin, a George Mason lawprof who filed an amicus brief
in the case, has this [1]op-ed praising the Michigan Supreme Court's
decision. He also points me to [2]contrary view by Wayne State lawprof
John Mogk, and passes along this response to Mogk:
While it is possible to have reasonable disagreement over Poletown,
Professor Mogk's op ed is not entirely accurate in its facts. For
example, it is not true that all the other 25 largest cities in the
nation have the power to condemn private property for transfer to
other private parties solely for economic development. The
Illinois, Florida, and California supreme courts have all held that
economic development by means of increasing the profitability of a
private business is NOT by itself a sufficient justification for
condemnations that transfer property to private hands. So L.A., San
Francisco, San Diego, Chicago, and Miami, among other major cities,
have somehow managed to prosper without this power. See
Southwestern Ill. Dev. Auth. v. National City Env., 768 N.E.2d 1, 9
(Illinois), cert. denied, 537 U.S. 880 (2002) (explaining that a
"contribu[tion] to economic growth in the region" cannot be a
legitimate ground for condemnation because "incidentally, every
lawful business does this"); Sweetwater Valley Civic Ass'n v. City
of National City, 555 P.2d 1099, 1103 (California 1976) (holding
that condemnation can "never can be used just because the [city]
considers that it can make better use or planning of an area than
its present use or plan" and that "it is not sufficient to merely
show that the area is not being put to its optimum use, or that the
land is more valuable for other uses"); Baycol, Inc. v. Downtown
Dev. Auth., 315 So.2d 451, 457 (Florida 1975) (holding that a
"'public [economic] benefit' is not synonymous with 'public
purpose' as a predicate which can justify eminent domain").
And, of course, if Poletown-style takings are really the key to
urban prosperity, as Professor Mogk suggests, why did Detroit (as
he also points out) continue to be the nation's poorest large city
in the 23 years Poletown was in force?
References
1. http://www.detnews.com/2004/editorial/0408/08/a13-235255.htm
2. http://www.detnews.com/2004/editorial/0408/08/a13-235258.htm
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