Posted by Eugene Volokh:
More on the Michigan eminent domain case:
Last week, I [1]blogged a link to George Mason lawprof Ilya Somin's
op-ed defending the recent Michigan Supreme Court ruling that certain
seizures of private property were unconstitutional, even if
compensation was paid, because they weren't for a constitutionally
authorized "public use." I also blogged a link to an op-ed on the
other side, by Wayne State lawprof John Mogk, and the text of Somin's
rebuttal.
John Mogk now passes along this response:
In reply to Ilya Somin's comments posted on August 9, 2004, I agree
that the facts surrounding Poletown, Hathcock and other cases in
which a taking is based upon economic grounds should drive the
legal and policy analysis. We do not agree on the facts.
For those interested in the Poletown debate I recommend that the
case be read from the original reports, rather than relying upon an
interpretation of it contained in the case law, articles or legal
texts. Poletown Neighborhood Council v. City of Detroit, 410 Mich.
616, 304 N.W. 2d 455 (1981).
None of the cases referred to in Somin's remarks convince me that
Detroit does not stand alone among the 25 largest cities in the
nation in being denied the power of eminent domain to take private
property for transfer to private developers to further economic
development, when the taking is authorized by the legislature,
"serves a legitimate public purpose and provides a predominant
public benefit." This is the requirement in Poletown.
The principal cases to which Somin refers are distinguishable on
the basis of involving a predominant private benefit or not being
authorized by the legislature. Hathcock prohibits Detroit and other
distressed municipalities from using condemnation to further
economic development, when the authorized taking provides a
predominant public benefit.
The question that the Poletown court addressed, according to the
opinion, was "Can a municipality use the power of eminent domain
granted to it by [the legislature] to condemn property for transfer
to a private corporation to build a plant to promote industry and
commerce, thereby adding jobs and taxes to the economic base of the
municipality and state?"
The Poletown court found on the facts of the case that "The power
of eminent domain is to be used in this instance primarily to
accomplish the essential public purposes of alleviating
unemployment and revitalizing the economic base of the community.
The benefit to a private interest is merely incidental."
Poletown did not permit all economic development takings. It was
not a case involving the use of condemnation to "increase the
profitability of a private business." There was no evidence
whatsoever introduced in the case that GM would be more profitable
if it build an assembly plant in Poletown than outside of Detroit.
Nor was it a case involving a project contributing to regional
economic growth. The problem was local in nature and addressed a
massive exodus of manufacturing jobs from the City, resulting in a
dramatic slide in its tax base and employment levels.
The Poletown project was initiated by the elected officials of
Detroit to keep 6000 jobs in the City that were to be lost by the
closing of a 50 year old, obsolete GM manufacturing facility
several miles away. This it did. Automobile manufacturing plants
built around World War I were multi-story and no longer efficient
to operate. They had neighborhoods tucked up next to them and were
frequently reached on foot or by local transit systems. After World
War II new plants were designed as one-story structures, requiring
greatly expanded boundaries to accommodate assembly lines and
employee parking.
Several years before the Poletown project, a similar aging,
obsolete plant (Dodge Main) had been closed by the Chrysler
Corporation immediately adjacent to the Poletown neighborhood. The
vacated plant site was on a major rail head, power grid and
Interstate Freeway (I-94). There were no jobs remaining on the
site. No other available site in the City offered the same
favorable conditions for a state-of-the art manufacturing plant.
The site needed to be significantly expanded to accommodate a
one-story manufacturing plant. Mayor Coleman Young prevailed upon
GM to be permitted to assemble the Poletown site for a new plant.
GM needed the Mayor's cooperation to improve conditions around its
world headquarters, which it was renovating at a cost of $250
million, and the restoration of a major 30 block neighborhood to
the north of the headquarters in partnership with the residents
living there (New Center Commons). The three projects were ongoing
at the same time. GM agreed to cooperate with the Mayor, if its
time-lines could be met.
The project transferred 6000 jobs to the site. Detroit has a
personal income tax of 3% and a tax on personal and real property.
The combined sum of these taxes should have yielded several hundred
million dollars to the City since completion of the project and
continue to generate substantial revenue in the years ahead.
Condemnation is not needed to further economic development where
the market is strong and growth occurring, such as in L.A., San
Francisco and San Diego, referred to by Somin. Strong market demand
will eventually result in land development which the local
government can control through the use of its regulatory powers
(zoning, et al) in the public interest. If one beneficial project
is not build, another will be.
In distressed areas the market is virtually non-existent or in a
state of collapse. If developers are to be attracted, they must be
assured of land control within a reasonable time-frame. "Time is
money." Condemnation is needed under these conditions, when the
public purpose is legitimate and public interest predominant.
Project feasibility is often tenuous, at best, and delays in land
assembly cannot be tolerated by the private investor.
Condemnation alone is not the answer for a City in decline. It is
only one tool contributing to redevelopment, but one of the most
important. Reversing a city's downward course takes years,
particularly one that had the Nation's largest civil disturbance of
the 1960s, dismantling of neighborhood schools through busing in
the 1970s and widespread HUD housing abandonment in the late 1970s
and 80s. Census data suggests that Cleveland, Philadelphia and St.
Louis are not far behind Detroit in experiencing urban collapse.
The foundation projects to which Detroit looks to rebuild itself in
the 21st century have been primarily facilitate through the use of
condemnation for economic development purposes, in accordance with
Poletown. They were believed not to be possible without it.
In Hathcock, the Michigan Supreme Court could have clarified and
tightened the public purpose and predominant public benefit
standards of Poletown and protected Hathcock and other landowners
from condemnation. Their land lies in one of Wayne County's growth
areas. The Court appears to have been on a mission to throw
Poletown out. Not to keep and clarify it, will have profound
detrimental effects on areas within Michigan where disinvestment
and decline is occurring.
References
1. http://volokh.com/archives/archive_2004_08_07.shtml#1092075732
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