Kelo case drew the line in the wrong place

Re: Pols Remain Masters of Domain

The Kelo case drew the line in the wrong place. The use of eminent domain to take private property and use it for new economic development is not smart economics. The Kelo case did not actually say that it is. The Kelo case only said that public officials using eminent domain had the right to be wrong if they `believe’ “that the seizures would "provide appreciable benefits to the community.” Had the justices understood the strength of the underlying economics that make such beliefs routinely ill founded and predictably wrong they should not have drawn the line to uphold the practice where they did. They should have realized that fundamental property rights deserve more protection from specious suppositions.

Kelo said that public officials have the right to be wrong, that’s true, but Kelo did not say that public officials have the right to bad faith when using eminent domain. Even if not everyone recognizes that it crosses the line into bad faith, Kelo did not say that pretextual public purpose can be pursued or that developers can commandeer the process. Kelo does not permit development plans that are“of primary benefit to ... the developer” and at best “only of incidental benefit to the city." It does not permit the highly discernable evidence of “impermissible favoritism”that we have in the case of Atlantic Yards which, proving the point, involves the concurrent award of $2-3 billion in subsidies to a single developer on a no-bid basis. Justice Kennedy, (essential to the Supreme Court’s majority) stated a test- He said that “(b)enefitting” the developer should not be "the primary motivation or effect of” a “development plan.”

Kelo does not bless the faking of blight studies and findings.

Certainly our public officials have rushed to exercise the Kelo-granted right to behave stupidly, but in New York they have gone far beyond that. If it isn’t bad faith, the abdication to Ratner in Atlantic Yards sure looks just like it.

The brilliance of Jane Jacobs was to direct people’s attention to the vibrancy of natural economics at work in the way cities shape themselves. She not only offered a vision of the superiority of what was but also the superiority of a better future. Opposition to eminent domain is not about opposition to change. Change is inevitable, but the kind of change that comes without eminent domain is superior. With eminent domain what we forfeit is the better future that natural untampered-with economic activity would bring.

Developers wielding eminent domain are disposed to interfere exactly where they shouldn’t.

When profit-minded developers expropriate eminent domain to their own ends they are not attracted to tamper with `blight.’ What tempts them most are meddling seizures in upcoming neighborhoods, those that are gentrifying or, in the words of Jane Jacobs, “unslumming.” Ratner wants to seize property in the thriving areas of Fort Green and Prospect Heights. About the only thing likely to derail real estate success here is Ratner’s own mega-project.

By the way, the 22-acre figure given for the massive Atlantic Yards mega-project in Brooklyn, N.Y., is correct but here are addenda. Eminent domain would be operative with respect to 60% of that acreage. 40% of the land would be acquired at a substantial discount from the Metropolitan Transportation Authority. While the mega-project is 22 acres, adjacent parcels owned by the developer would bring the swath of contiguous Brooklyn acres owned by him to approximately 30. That is a lot of government fostered monopolistic monoculture. Jane Jacobs would not be happy.