Horizon City” ©2002, UrbisMedia
This land is your land, This land is my land
From California, to the New York island;
From the red wood forest, to the Gulf Stream waters
This land was made for you and me.
(©1956 Woody Guthrie)
How could the “liberal” (almost) side of the U.S. Supreme Court come out against the “little guys,” the homeowners of the City of Kelo, Connecticut [http://straylight.law.cornell.edu/supct/html/04-108.ZS.html], who whose flag-flying homes appeared on a 60 Minutes segment like a besieged little village holding out against the rapacious forces of capitalism?
How could the conservative (certainly) side of the court, dissent against the businessmen trying to revitalize commercial prosperity in a town suffering the ravages of economic decline?
If the there seems to be a bit of role reversal here—the liberals supporting the big guys (here being the City government and business), and the conservatives supporting the little guys, it’s because land economics and law in America don’t quite fit the usual political profiles. It often seems, when viewed historically, as if the law, when it comes to the way in which it relates to land and land use, is like a square dance always calling “change partners.”
A little background helps here. Strangely, zoning, the practice whereby government restricts what can be built on a parcel of land to uses determined to reduce problems like nuisances and conflicts, among other purposes, was first installed in cities not by socialists and liberals, but by private enterprise. It New York City, in the early years of the 20 th century, businessmen were concerned that residential development was taking up the best commercial land. So they pushed for zoning that would “regulate” land use and “protect” business interests. But zoning has long since been seen as a “liberal” idea, and in fact, zoning is under siege today in many places, always by the conservative vanguard for “de-regulation.”
Secondly, Zoning, and it’s regulatory companion, Planning, were first pushed in American not by those regulation-crazy Democrats, but by those laissez-faire Republicans. It was Republican Herbert Hoover who, when he was the Secretary of the U.S. Chamber of Commerce in the 1920s, who created the Standard Planning and Zoning Enabling acts for adoption into state constitutions. [1] Businessmen aren’t stupid, they know that good land use can be good for business. They have a problem when regulations put the public interest ahead of their interests.
And that’s where things start to get dicey. After The Great Depression and WWII the centers of American cities were not in such great shape. They were older, more run down, had minorities moving into them and middle class moving out of them (helped by the new Interstate Highway system). Downtown businessmen were soon losing out to the new suburban shopping centers. Liberals saw a need to build low cost and opublic housing, conservatives saw a need to revitalize center city commerce. Hence, the Taft, Wagner, Ellender Bill, (notice that its bi-partisan) to create Urban Renewal. [2]
But this wasn’t just new development this was re -development; that is, government had to get the land together in sufficient packages to make urban re-development plans work. The cities, or their redevelopment authorities (usually with a lot of businessmen sitting on them) mostly acquired land by negotiated (fair market) purchase, but had the power of eminent domain in their pocket if needed. Eminent Domain is the state’s power to “take” your land, paying you “fair market” compensation, for a “public purpose.”
And that’s where things can get really dicey , because the city, using the state’s powers, can take your bland to build a public housing project, but they might also want to take it to assemble a land package which would then be re-sold, or leased to a private enterprise, like a shopping mall. Now it can be argued that this is a public purpose if the purpose is to revitalize the urban economy, i.e., new jobs are created by the construction, new workers in the businesses, new sales receipts, and new property taxes.
And that’s the rub. How you feel about the public interest and your private interests can depend on whether, as they say, it’s your ox that is “being gored.” So now we should be able to see a little more clearly how this seemingly makes conservatives out of liberals and vice versa, when it comes to land regulation and land redevelopment. (I used to ask my grad students if they would shoot a guy who had a deadly, communicable disease but refused being quarantined. [3] )
But the “fear factor” can make a difference. Should we tremble? Not really. No businessman is going to come and get government to condemn your family home to build a McDonald’s or a Wal-Mart if your property isn’t a good location for his business. Businessmen don’t do things for principle, but for profit. And if you property is worth something for business, they will probably make you a good deal, and you just might want to take them up on it (or hold out until you can really put the squeeze on them). Anyway, it is often the case that some residential properties are in areas in transition, on the cusp, so to speak, between residential and commercial. So it’s usually a good idea to take their money and run for a quieter and cleaner location.
But that’s not what made the plaintiffs in Kelo vs City of London sue to stay put in their homes—it’s that they want to stay put in their homes, and they claim that their property is an unjust taking because it is not for a public purpose . The liberals on the court must feel that the city has to be able to take actions that will revitalize the local economy, which means getting together land for private enterprise. The conservatives on the court are seeing this as big, bad government picking on the little guy.
I’m retired from teaching, but I would like to go back one time and ask my grad student: In order to save the city from ruin would you shoot Justice Souter . . . or Justice Scalia?
Lock and load.
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©2005, James A. Clapp (UrbisMedia Ltd. Pub. 7.1.2005)
[1] Planning and Zoning are functions of local governments, which are creations of the State, not the Federal government; hence, the Federal government can encourage the States to engage in such practices, but not force them. All the state do.
[2] This became law in the Housing Act of 1949 and the Housing Act of 1954 (as amended). Note that the Federal government cannot itself engage in urban renewal, although conservatives sometimes portrayed it that way to scare people and create opposition to its usage (successfully in places like Indianapolis and San Diego, for example). But the Feds made it enticing by picking up part of the bill for acquiring (usually by negotiated purchase) the land for redevelopment projects.
[3] The usually recommended that they would get somebody else to kill him. Remember, my students were going to become bureaucrats.