Rebuilding Place in the Urban Space

"A community’s physical form, rather than its land uses, is its most intrinsic and enduring characteristic." [Katz, EPA] This blog focuses on place and placemaking and all that makes it work--historic preservation, urban design, transportation, asset-based community development, arts & cultural development, commercial district revitalization, tourism & destination development, and quality of life advocacy--along with doses of civic engagement and good governance watchdogging.

Tuesday, January 06, 2015

Eminent domain issues in DC come up again

Today's Post reports ("Eminent domain could spell end to DC neighborhood's 25-year fight against trash") that Ward 5 Councilmember Kenyan McDuffie wants to use eminent domain to seize an unwanted trash transfer station, ostensibly because DC Water needs space to replace a facility in the Capitol Riverfront district that is slated for commercial redevelopment.

Eminent domain is supposed to only be used to satisfy an evident public purpose, and the idea here is that DC Water needs a space to relocate some of their facilitiles.

The shotgun-style house at 1229 E St. SE in DC's Capitol Hill Historic District has been neglected and boarded up for years. (Ileana Najarro/The Washington Post)

It happens that I am a "fan" of execution of eminent domain authority in certain instances, although more as a threat for getting property owners in line in terms of maintaining their properties.

For example, instead of letting properties rot for decades, like the shotgun house on Capitol Hill (see "Eminent domain and receivership to "cure" habitual nuisances") the city should seize the property, or at least threaten to do so,

I don't think the city would have to go to this extent very often.  If they did it a couple times, afterwards, the possible threat of it happening would be enough of a cudgel to get most property owners to do what they are supposed to do anyway--maintain their property.

Alternatively, some would become motivated to sell the property to someone else willing to do the work necessary to get the property up to code.  That's what already happens with DC's extremely underutilized or inappropriately focused condemnation process.  (Some of the officials are too quick to approve demolition, not caring that's what the property owner wants to do anyway, which is why they've neglected the property to begin with.)

Eminent domain for commercial property development is more tricky.  I do like the framework for consideration as proposed in this op-ed, "Make eminent domain fair for all," published in the Boston Globe in 2005, in response to the Kelo decision.

From the op-ed:
State court judges have emphasized in the past that, to comply with the Massachusetts Constitution's own requirement that eminent domain be for a public use, the government must demonstrate that eminent domain will really benefit the public. New legislation could respond to that by:

-- Requiring, as Justice Anthony M. Kennedy suggested in his Kelo concurrence, that any exercise of eminent domain for economic development have a primarily public purpose rather than a merely incidental one.

-- Requiring the government to demonstrate the public benefit through a full-scale financial analysis that could be challenged in court.

-- Requiring that eminent domain not be used for a solely fiscal purpose and that it instead must be part of a comprehensive land use plan.

-- Requiring that the affected neighborhood have adequate participation in the planning process, a right that would be backed up by state-provided technical assistance upon the neighborhood's request.
I think these are pretty good guidelines that appear to be blown off by too many jurisdictions. It is because of the frequent mis-use of eminent domain authority, not just ur-beliefs about the sanctity of property rights, that so many people are so concerned and worked up about eminent domain issues.

2.  Getting to today's article, I can't see how the proposed use of eminent domain would not be deemed a taking. Property takings are unconstitutional.  That's why the public purpose has to be clear and evident for a government to be able to seize a property.  Remember, that ultimately the property owner is compensated for the property, but usually the level of spending is disputed.

The particular site is not the only possible private property to which DC Water could relocate.  DC already owns properties that could be appropriate for DC Water.

It seems pretty clear that the proposal is designed to rid the area of an unpreferred use (although according to residents, the DC Water use would be equally disfavored) with something else, despite an agreement in place to let the facility operate until the 2030s.

3.  Plus, a good lawyer for the trash transfer station could argue that the city wants to put the facility out of business in order to capture more business from private trash collection companies.  Such firms using the city's trash transfer facilities, such as at Fort Totten, pay a fee to dump the trash.

Such an action would be anti-competitive and illegal also.

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