Posted by Ilya Somin:
David Beito on Eminent Domain Abuse in Alabama:
http://volokh.com/archives/archive_2009_04_26-2009_05_02.shtml#1240868417
Historian David Beito, chair of the Alabama State Advisory Committee
of the U.S. Commission on Civil Rights, has [1]a good op ed on eminent
domain abuse in Alabama. Last year, Beito and I coauthored [2]an op ed
on the negative impact of takings on minorities and the poor.
The interesting thing about the cases discussed in Beito's current op
ed is that Alabama actually enacted one of the nations' strongest
post-Kelo eminent domain reform laws; after passing largely toothless
reform legislation in 2005, the state legislature went back and
enacted a much stronger reform in 2006. The 2006 law forbids
condemnations for "economic development" and also limits "blight"
condemnations, such that only genuinely dangerous or seriously
dilapidated properties can be condemned under that rubric. I discuss
the Alabama reform law in [3]this article, along with those passed by
other states (the majority of which are ineffective).
Some of the abusive condemnations Beito describes were initiated under
"redevelopment" projects that were already in place at the time the
2006 post-Kelo law was enacted. The law is not retroactive, and so it
allowed those projects to go forward and continue to condemn property
under the old, very broad, definition of "blight." This case, however,
appears to be more recent:
What is happening in the cradle of the modern civil rights
movement? Jimmy McCall would like to know. 'It was more my dream
house,' he laments, 'and the city tore it down ... It reminds me of
how they used to mistreat black people in the Old South.' In 1955,
Rosa Parks took on the whole system of Jim Crow by refusing to give
up her seat on a segregated Montgomery bus. Today, McCall is waging
a lonely battle against the same city government for another civil
right: the freedom to build a home on his own land.
Though McCall's ambitions are modest, he is exceptionally
determined. For years, he has scraped together a living by
salvaging rare materials from historic homes and then selling them
to private builders. Sometimes months went by before he had a
client. Finally, he had put aside enough to purchase two acres in
Montgomery and started to build. . .
McCall only earns enough money to build in incremental stages, but
eventually his dream home took shape. According to a news story by
Benjamin Solomon, the structure had 'the high slanted ceilings, the
exposed beams of dark, antique wood. It looks like a charming,
spacious home in the making.'
But from the outset, the city showed unremitting hostility. He has
almost lost count of the roadblocks it threw up including a
citation for keeping the necessary building materials on his own
land during the construction process.
More seriously, he was charged under the state blight law, which
allows a municipality to designate a building as a 'public
nuisance' and then demolish it. Critics have accurately called this
'eminent domain through the back door' and warn that opportunities
for abuse are almost limitless. In contrast to the standard eminent
domain process, for example, property owners do not have any right
to compensation, even in theory.. . .
Unlike countless others in similar straits, McCall fought back and
hired an experienced local lawyer. In the middle of last year, he
negotiated a court-enforced agreement, which gave him 18 months to
complete the home. Only a month after the agreement took effect,
the city demolished the structure. Local bureaucrats, obviously in
a hurry to tear it down, did not even give him notice. The
bulldozers came in the same day as the court order that authorized
them.
McCall appealed to the same judge who had allowed the demolition.
Saying that she had been misled, the judge ordered the city to pay
compensation. Montgomery has appealed and at this writing McCall
has not received a cent. McCall thinks that the city intends to
drag it out until his money runs out. 'I've got a lot of fight left
in me, and all I want is justice,' he states.
The [4]2006 reform law allows local governments to condemn property
that creates a "public nuisance." However, it is doubtful whether
McCall's house cold qualify as such. Under the Alabama Code, a
"nuisance" is defined as[5] "anything that works hurt, inconvenience
or damage to another." It is possible to interpret this so broadly as
to include the "inconvenience" McCall caused to the developers who
coveted his land by refusing to let them have it. However, this would
render almost any use of land a "nuisance" so long as someone else
covets the land for a different purpose. In any event, Alabama law
also states that [6]"[a] public nuisance is one which damages all
persons who come within the sphere of its operation, though it may
vary in its effects on individuals. A private nuisance is one limited
in its injurious effects to one or a few individuals." It is difficult
to believe that McCall's house somehow "damages all persons who come
within the sphere of its operation." At most, it is a private nuisance
to "one or a few individuals" who might wish to use the property for
other purposes - and even that claim would be a stretch. But Alabama
law does not permit the government to condemn property merely because
there is a private nuisance there.
It's possible, of course, that there are some relevant other facts
here that are as yet unknown to me. But the available evidence
suggests that Montgomery's effort to take McCall's property violates
state law. Unfortunately, the complex and difficult nature of the
eminent domain process sometimes makes it hard for owners to resist
even illegal takings.
Beito and McCall emphasize that, as in the past, takings
disproportionately victimize lower-income African-Americans. Unlike in
the 1950s and 60s, today such condemnations are rarely motivated by
racism as such. Rather, low-income blacks are often targeted because
of their political weakness. Local governments and politically
connected developers know that they often lack the resources and
influence to put up a fight. For this reason, as the NAACP explained
in its[7] amicus brief in Kelo, "[t]he burden of eminent domain has
and will continue to fall disproportionately upon racial and ethnic
minorities, the elderly, and economically disadvantaged."
References
1. http://www.tuscaloosanews.com/article/20090426/NEWS/904259948
2. http://www.cato.org/pub_display.php?pub_id=9361
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976298
4.
http://alisdb.legislature.state.al.us/acas/searchableinstruments/2006rs/bills/hb654.htm
5. http://www.legislature.state.al.us/CodeofAlabama/1975/coatoc.htm
6. http://www.legislature.state.al.us/CodeofAlabama/1975/coatoc.htm
7. http://www.ij.org/images/pdf_folder/private_property/kelo/naacp02.pdf
_______________________________________________
Volokh mailing list
Volokh@lists.powerblogs.com
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
