Not Blighted, But One Day It Might Be

Today the Ohio Supreme Court is scheduled to hear a challenge to the use of eminent domain for private development in a well-kept neighborhood of Norwood that the city (following the cue of the developer who wants the land) describes as "deteriorating." One of the criteria for that designation is "diversity of ownership," meaning too many individually owned homes and businesses. The definition "could include virtually every neighborhood in Ohio and the nation," says Dana Berliner of the Institute for Justice, which is challenging the project on behalf of three property owners.

This is the most important state eminent domain case since the U.S Supreme Court last year upheld condemnations for private development in Kelo v. New London. The Ohio Supreme Court has declared that "the power of eminent domain may not be exercised merely or primarily to take private property for private purposes," and it has never ruled on the condemnation of "deteriorating," as opposed to "blighted," property. A victory for the owners would provide further evidence that state courts are prepared to interpret state constitutions so as to curtail eminent domain abuse, meaning that new legislation is not the only solution to the land grabs encouraged by Kelo.

Comments

Jennifer | January 11, 2006, 10:44am | #

One of the criteria for that designation [deteriorating] is "diversity of ownership," meaning too many individually owned homes and businesses.

Yes, nothing hurts a democracy more than a bunch of little landowners. Let's go back to the feudal period, when almost all land was owned by a few big landowners instead.

D.W. | January 11, 2006, 11:01am | #

While were on a property rights thread, I thought I would post this article a rather liberal friend sent to me. I'm a hunter so I'm all for conservation, but this is about as anti-private property rights as you can get (with the exception of the current SCOTUS).




The End of Hunting?
Why only progressive government can save a great American pastime.

Twba | January 11, 2006, 11:05am | #

I predict those houses are toast. Take a look at the terrible blight. What eyesores.

thoreau | January 11, 2006, 11:11am | #

Wait, I thought slums were afflicted by blight because nobody owned the place that they lived in, so they didn't care for their places as well as live-in owners would.

So, too many owners is blight. Too few owners is blight. What the hell isn't blight?

Mr. Nice Guy | January 11, 2006, 11:15am | #

Yeah, Twba.. some of those houses have clutter on their porches.

They should bulldoze the whole area like a Palestinian village.

Jennifer | January 11, 2006, 11:21am | #

This "too many owners" argument is the most frightening eminent domain excuse I've seen so far. How much land do you have to own before you're considered big enough to be unblighted?

Twba | January 11, 2006, 11:25am | #

There's more than clutter on some porches. Look at the peeling paint on the rakes of this house. See it?

jeffiek | January 11, 2006, 11:27am | #

What the hell isn't blight?

The town hall, police station, schools. Any government owned property.

downstater | January 11, 2006, 11:27am | #

in missouri these areas are called "conservation areas".

"such an area is not yet a blighted area but is detrimental to the public health, safety, morals, or welfare and may become a blighted area because of any one or more of the following blah blah"

but there is a restriction: half of the structures must be an incredibly ancient 30 years old!

downstater | January 11, 2006, 11:31am | #

The town hall, police station, schools. Any government owned property.

not necessarily jeffiek, it goes something like this:

"okay developer, you don't want to actually pay for the cost of doing business here, so we'll clear some land for you, etc. but it'd be nice if you could throw in a new city hall to go with it - our current one is so....blighted."

Twba | January 11, 2006, 11:37am | #

I'm sure the ice-cold beers are reasonably priced, but there's a broken window in the storage room upstairs.

SR | January 11, 2006, 11:39am | #

What are you, Twba, some kind of trouble maker?

Twba | January 11, 2006, 11:46am | #

Repoint the mortar on this blight, please. We must destroy Norwood to save it.

Rich Ard | January 11, 2006, 11:53am | #

Shit - if those places are deteriorating, then I better get ready for my condo to be taken - we've had a rattan chair out front for almost a year, and it's getting pretty ratty.

Twba | January 11, 2006, 11:54am | #

Who wants to move to Norwood? Let's all buy a house there and then vote these fuckers out. Who's with me?

R C Dean | January 11, 2006, 11:55am | #

joe? You there? Is this thing on?

joe | January 11, 2006, 11:56am | #

This is a misreading of the law. The "diversity of ownership" standard isn't supposed to be applied alone, as a measure of blight. The language, which most cities and states took from 1950s Urban Renewal laws, states that the area is suffering from physical deterioration, vacancy, and neglect AND that the problems are unlikely to be addressed because of a number of factors, including "diversity of ownership."

For example, if you have a mill building that is literally built to the lot lines, no loading area, no parking area, and it's vacant and deteriorated, in an industrial area, it is highly unlikely that anyone will be interested in redeveloping it without any yard area. If the abutting land is not owned along with the mill, and for some reason (abandonment of the land, a persnickity owner, or even just its use as the parking lot for some other rundown property) it is unlikely that the situation will be remedied by the private market.

So in other words, the diversity of ownership of the house lots is not supposed to be used as evidence that the area is blighted, but as evidence that an already blighted area needs some intervention to become unblighted. If the area isn't actually blighted or deteriorating, diversity of land ownership doesn't make it so.

Larry A | January 11, 2006, 11:56am | #

One of the criteria for that designation is "diversity of ownership," meaning too many individually owned homes and businesses.

Well, that should be obvious. With one or two owners you can just do a sweetheart deal and get on with business. But if there are a bunch of owners it's too much of a pain in the ass to negotiate with all of them. Bring in the ED.

Jennifer: Let's go back to the feudal period, when almost all land was owned by a few big landowners instead.

Being pedantic, I believe in the feudal system all the land is owned by the king, who parcels out fiefs to his followers, who parcel out fiefs to their followers, who?etc. Until you get down to the peasants at the bottom of the food chain. Of course no political/economic system is as simple as the ideal that spawns it.

Madog | January 11, 2006, 11:58am | #

Heh, 9/10 of New Haven looks like that...

What they're basically saying is that anything that's not a recent housing development where everything looks the same is bad.

Timothy | January 11, 2006, 11:58am | #

They just built my apartment complex in 2004...I guess I'd better find a new place to live, I think the roof has some leaves on it.

thoreau | January 11, 2006, 12:07pm | #

I know everybody is going to jump all over joe (and I admit that on many related issues I disagree with him), but as I read it, he's saying that:

Even if blight is established, that alone is not enough to justify intervention. It must be shown that market forces (allegedly) won't solve the problem. (Yes, I know, many here would say that the previous sentence could never, ever be true. Well, at least joe is saying that the validity of the previous sentence must be established according to some standard, however flawed that standard may be, rather than just asserted.)

And, in certain special cases, dealing mostly with industrial areas rather than residential areas, "diversity of ownership" might be used to establish that.

So, joe's saying that "diversity of ownership" only matters in certain, fairly rare instances, and that the notion, if applied as intended, would limit the use of ED rather than serve as a blank check for taking residential neighborhoods.

Disagree all you want with joe's views on the bigger issues. But I think he makes sense here: Even if you take ED on its own terms, this is still bad.

And sometimes it's worth arguing on somebody else's terms, or at least trying to see it on their terms, to see just how utterly unsupported an idea is. If even joe disagrees with this, that's worth noting.

Matthew | January 11, 2006, 12:15pm | #

The trouble is, even if diversity of ownership wasn't MEANT to be a deciding or sole factor, the fact that it's a factor at all is an invitation for abuse. Lawyers that want to make that clause more important than it should be will make every effort to do so. The commerce clause wasn't meant to authorize congress to oversee and regulate every aspect of every citizen's life, but that's essentially how it's currently used. Misreading the law is what lawyers do full time.

Seamus | January 11, 2006, 12:22pm | #

Being pedantic, I believe in the feudal system all the land is owned by the king, who parcels out fiefs to his followers, who parcel out fiefs to their followers, who?etc.

That was true in England, where it was claimed that all the land was forfeited to the Crown as a penalty for English resistance to William the Conqueror. That was not necessarily the case in other parts of Europe where feudalism prevailed.

Jennifer | January 11, 2006, 12:39pm | #

Considering the problems spawned by my use of the word "feudal," I'm might glad I didn't say 'serf.'

Jennifer | January 11, 2006, 12:40pm | #

"Might" was supposed to say "mighty."

To hell with it. Let's all go to the beach. Serf's up!

Ali Babble | January 11, 2006, 12:44pm | #

I predict those houses are toast. Take a look at the terrible blight. What eyesores

Y'all are missing the big picture. Who posted these images?

Why, Citizens Against Eminent Domain Abuse, or 'al CAEDA', that's who.

Keep your homeland secure.

joe | January 11, 2006, 12:49pm | #

I agree with Madog and Jennifer on the merits of this as a planning principle. The idea that "inefficiently cut-up" neighborhoods are bad, and superblocks with a few wide streets is good, is a cast off relic from a dead end urban planning paradigm - that of the "radiant city" and its degenerated offspring. It would be much better if the law was updated to reflect what we've learned from that terrible period.

thoreau, I just took the industrial property as the lowest hanging fruit example. It can also be applied to commercial and, theoretically, residential areas - though especially for the latter, I have trouble imagining a situation when it would be the best solution to blight.

Twba | January 11, 2006, 12:53pm | #

Joe,

In your opinion, how much blight is evident in the photos I linked?

Mr. Nice Guy | January 11, 2006, 1:02pm | #

Twba:

Be sure to add "small patches of crabgrass" to the endless list of crimes.

Aw hell, we should just blow this entire planet up to make way for the Intergalactic By-Pass.

Ig | January 11, 2006, 1:03pm | #

Perhaps the best wayu to defend against this sort of nonsense is for residents/homeowners in older neighborhoods to start lobbying of some sort of "architectural diversity or historic value" protection BEFORE they get targeted. Some of those homes clearly have architecture unique to period and place. Likewise, I would advocate anyone living near any kind of water or marsh or even a damp spot in the woods try to get some kind of wetland designation to serve as an obstruction to developers. The best way is to use tools that have already worked in other circumstances, IMO. In this issue, there is no defense, only offense.

JD | January 11, 2006, 1:22pm | #

Seamus - I'm not 100% sure, but I think you are wrong about England and all land being owned by the crown, although that might have changed between 1066 and a few hundred years later. I know Richard Pipes addresses it in Property & Freedom, so I'll take a look when I get home. Russia, OTOH, was a king-owns-everything kind of place, which retarded their sociopolitical development.

TomHynes | January 11, 2006, 1:30pm | #

Here is the economic argument for eminent domain, which might explain the diversity of ownership issue.

Suppose you have 10 contigous parcels each worth 100k. Assume that as one big parcel, it would be worth 2 million. It is difficult to get the 10 landowners to agree to sell, because they all want to hold out for the $1 million economic surplus. Eminent domain therefore leads to economic efficiency. If one person owned all 10 parcels, you wouldn't need eminent domain. Note that for this economic efficiency argument, it doesn't matter if end use is private or public.

Twba | January 11, 2006, 1:49pm | #

Be sure to add "small patches of crabgrass" to the endless list of crimes.

Let's not go overboard. I don't have a perfect lawn, and you know my bachelor pad is not blighted, except the basement, but who ever goes down there anyway?

joe | January 11, 2006, 1:52pm | #

Twba,

Blight is a pass/fail condition. Being a little bit blighted is like being a little big pregnant.

Also, I can't judge whether a neighborhood is blighted by a set of individual properties. I can tell you that I see very, very little in those pictures to indicate that the area is blighted.

Now, if you happened to link to the sixteen occupied buildings in a neighborhood with 100 vacant lots and 100 vacant buildings, I could be convinced that the n'hood was blighted. But if that were the case, it is highly unlikely that those 16 buildings would show the evidence of recent investment (replacement windows, lawn care, neon signs in good repair) that is apparent in those photos.

Remember, blight is galloping abandonment, vacancy, and disinvestment. It's a situation in which the levels of those three evils are so high that it drives away investment capital, resulting in further disinvestment, vacancy, and abandonment in other, nearby buildings. The photos you show do not convince me that such a thing is happening.

jeffiek | January 11, 2006, 1:57pm | #

Remember, blight is galloping abandonment, vacancy, and disinvestment.

That's what any normal human being would think. Unfortunately, normal humans aren't the ones that applying the term. And it's their definition that counts

jeffiek | January 11, 2006, 1:59pm | #

Remember, blight is galloping abandonment, vacancy, and disinvestment.

That's what any normal human being would think. Unfortunately, normal humans aren't the ones that applying the term. And it's thier definition that counts

zach | January 11, 2006, 2:20pm | #

There's nothing abnormal about trying to use the law for personal gain. Wrong, in this case, yes, but perfectly normal.

BaBar | January 11, 2006, 3:01pm | #

>I would advocate anyone living near any kind of >water or marsh or even a damp spot in the woods >try to get some kind of wetland designation to >serve as an obstruction to developers.

Only if you want to permanently lose your own development rights on your own property, and hence destroy the resale value of it.

Lowdog | January 11, 2006, 4:30pm | #

Twba - shit, that house was only $16000? For real? Christ, $16000 would be a down-payment on a house here in AZ.

Maybe I should move.

Wait, we don't have winter here. Hmm...

Bob | January 11, 2006, 5:15pm | #

>Christ, $16000 would be a down-payment on a house here in AZ.

Wouldn't be a downpayment on an outhouse here in Silicon Valley.

Stephen Macklin | January 11, 2006, 6:59pm | #

Put an end to the abuse of eminent domain. Amend the constitution to limit its use and make it more of a burden on government than its victims.

Sign the petition here.

Hakluyt | January 11, 2006, 7:55pm | #

Larry A.,

Being pedantic, I believe in the feudal system all the land is owned by the king, who parcels out fiefs to his followers, who parcel out fiefs to their followers, who?etc. Until you get down to the peasants at the bottom of the food chain. Of course no political/economic system is as simple as the ideal that spawns it.

It needn't being a king and in fact because of the hodge-podge way England was created many privately owned estates existed that were not owned by the crown (the same is true of France). And the system was one of mutual obligation (in England and France) between the parties involved. Or at least that is how it worked hypothetically, in practice not so much.

Seamus,

That was not necessarily the case in other parts of Europe where feudalism prevailed.

Keep in mind that in much of Europe it never existed or existed only very weakly (e.g., the Netherlands or Spain or Denmark) and that there were huge variations temporally and in practice between Western and Eastern European feudalism.

Jennifer,

Perhaps you should leave all of medeival Europe to those of who know something about it. Then again, as you're a "Peak Oil" idiot I'm not going to hold my breath.

__________________________

joe's multi-factor test reminds of the myriad multi-factor tests one learns in law school which tend to be used as a means to justify decisions which have already been made.

joe | January 11, 2006, 9:36pm | #

You know what makes a neighborhood deteriorate? Having a takings case hanging over the property owners' heads.

Who would put money into upkeep when your property could be taken any day? Of course the area is deteriorating! "Here's a picture of the street the day before the City Council adopted the Urban Renewal Plan, and here's a picture three years later. Look, this guy didn't ever shell out to fix his steps!"

I doubt any of these cases the IJ takes are going anywhere, because they're basically asking the court to substitute its judgement for that of the legislature on a judgement call. But they're not really supposed to. As the coordinated legal action/press releases/heavy play in the libertoid press around Kelo shows, the point is to use the courts as a stage on which to highlight the issue, in order to bring about political change.

Eminent domain in this country has been heavy handed for decades, from the Interstate Highway program to Urban Renewal to school building projects. Redevelopment is an important government function, and ideas like Mr. Macklin's aren't going anywhere, but if the campaigns achievment is to compel governments to adopt a lighter touch, that would be a great victory.

joshua corning | January 11, 2006, 11:04pm | #

Eminent domain in this country has been heavy handed for decades, from the Interstate Highway program to Urban Renewal to school building projects. Redevelopment is an important government function, and ideas like Mr. Macklin's aren't going anywhere, but if the campaigns achievment is to compel governments to adopt a lighter touch, that would be a great victory.

sometimes i could just strangle joe...not when he just outright disagrees with me but when he is inches away but still just does not get it.

joshua corning | January 11, 2006, 11:11pm | #

Even if blight is established, that alone is not enough to justify intervention. It must be shown that market forces (allegedly) won't solve the problem.

yeah that is what i think he thinks also...but i dissagree with him for a different reason then you think. I agree that it is possible that markets won't solve the problem...but sometimes towns need to die.
Not every community is sacred and needs to be saved, sometimes the reason for a town disappears or the enviornment changes, or technology changes or it was made for all the wrong reasons....take for example New Orleans.

Twba | January 12, 2006, 9:58am | #

Joe,

Thanks for your opinion. I agree that the page of thumbnails is not indicative of blight, but not all lots are shown. There may be a couple ugly buildings somewhere in the midst of those nice houses, but that would not justify bulldozing every property and building a big shopping center.

Christ, $16000 would be a down-payment on a house here in AZ.

No shit. There are some nice looking houses selling for less than forty grand in Norwood. Well, the photos on the website look nice.

Jennifer | January 12, 2006, 3:21pm | #

Redevelopment is an important government function

I disagree. It's not the government's business to decide that a formerly residential area should now be turned over to business owners, or vice-versa.

I don't want to pull a Commie Godwin, but to say "redevlopment is a function of government" seems to have only two possible interpretations: that the government should be the one owning the businesses for redevelopment, or that the government (as opposed to, say, the free market) should be the one deciding whether or not a current owner can keep his property or be forced to sell it.

joe | January 12, 2006, 8:51pm | #

joshua, towns don't just disappear, neatly and cleanly, like an investment vehicle that proves to be inefficient. They drag down thousands, sometimes many thousands, of lives with them, for decades. Maybe boom towns that are really little more than camps, such as the ghost towns in the American west, can do so. But the proper metaphor for a city going down the tubes is not a magician going poof: it's a bad apple spreading its rot to all the apples around it. Cities are not disposable.

Twba | January 13, 2006, 2:30am | #

Here is a map(.pdf) of the area to be developed.

Twba | January 13, 2006, 2:35am | #

From the Cincinnati Enquirer:

The three buildings that had been owned by the Gambles, Horney and the Burtons sit in a large empty tract of land cordoned off by a chain-link fence. They are the only remnants of the middle-class neighborhood that had been bordered by Interstate 71 and Edwards and Edmondson roads.

The other 64 homes and two small businesses were demolished in April. So far, the courts have protected the remaining three buildings from the wrecking ball while the case is being decided.

Initially, 66 of 71 property owners in the neighborhood agreed to sell to the Rookwood Exchange developers, Anderson Real Estate and the Miller-Valentine Group. Five property owners resisted. After two lower courts ruled in Norwood's favor, three of the five decided to appeal to the Ohio Supreme Court.

Until the three remaining buildings are torn down, the developers can't start building the Rookwood Exchange and Norwood can't begin collecting the anticipated tax revenue.

And until the case is resolved, the holdouts have put their lives on hold. Courts awarded them sums of money far above their properties' market values, but they don't want to use the money while the case is pending.

Only three houses are left standing. They are fenced off. The Ohio Supreme Court will side with the city.

Twba | January 13, 2006, 2:39am | #

This house doesn't look bad, but the chain link fence...

joe | January 13, 2006, 8:21am | #

Jennifer,

How about a #3? It is the responsibility of government to rescue areas that have entered a death spiral through redevelopment.

Jennifer | January 13, 2006, 8:54am | #

How about a #3? It is the responsibility of government to rescue areas that have entered a death spiral through redevelopment.

But how can they do that without resorting to my number two choice--choosing who gets to keep their property and who will be forced to sell it?

Jennifer | January 13, 2006, 9:09am | #

Never mind, Joe. One more post by the Reason staff and this thread will vanish from the main page. But I'm sure there will soon be another eminent domain thread where we can resume our debate.

Twba | January 13, 2006, 12:49pm | #

Joe,

Norwood is hardly in a death spiral.