2006 American Planning Association Conference Session S483: Eminent Domain and the Black Community

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2006 American Planning Association Conference San
Antonio, TX Monday, April 24, 2006 930
a.m. Session S483 Eminent Domain and the Black
Community
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• Definition and Legal Precedents
• Definition What is Eminent Domain?
• Legal Precedents for the Kelo v. New London
  Eminent Domain Decision
• Legal Foundation for the Use of Eminent Domain

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• Definition of Eminent Domain
• Eminent domain is the power of the government to
  take property for public use with just
  compensation
• Traditionally, eminent domain refers to the
  direct taking of property through a condemnation
  process
• More recently, the courts recognize the
  applicability of eminent domain to instances
  where the government uses its police power to
  restrict the use of a property to an extent
  tantamount to appropriation.
• Source Planning and Urban Design Standards. APA
  Press 2006

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• Legal Foundation for the Use of Eminent Domain
• Origins The Fifth Amendment to the U.S.
  Constitution requires just compensation when
  private property is taken through the eminent
  domain power, and that the property be taken for
  public use.
• Berman v. Parker (1954) In this landmark case,
  the U.S. Supreme Court ruled that private
  property could be taken for a public purpose with
  just compensation, and that the property need not
  be classified as blighted.

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• Legal Foundation for the Use of Eminent Domain
  (Contd.)
• Ruckleshaus v. Monsanto (1984) In this case, the
  U.S. Environmental Protection Agencys use of
  trade secrets data submitted by a pesticide
  manufacturer to evaluate subsequent applications
  for EPA approval was challenged as a taking. The
  U.S. Supreme Court ruled that the available
  remedy of just compensation precluded
  characterization of the EPAs use of eminent
  domain in this case as a taking.

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• Legal Foundation for the Use of Eminent Domain
  (Contd.)
• Hawaii Housing Authority v. Midkiff (1984) In
  this case, the U.S. Supreme Court ruled that a
  state could use its eminent domain powers to take
  land that was overwhelmingly concentrated in the
  hands of large private landowners and
  redistribute that land to the larger population.
  With this ruling, the Court affirmed the states
  use of eminent domain powers to regulate
  landholding or other oligopolies.

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• The Kelo v. New London Decision
• Case Background
• The City of New London, CT proposed to redevelop
  an older neighborhood to capitalize on the
  economic development opportunity represented by a
  newly-constructed pharmaceutical research
  facility.
• In 2000, the city approved a development plan for
  a portion of the area to be developed and moved
  to assemble private property through the use of
  its eminent domain powers for redevelopment as a
  resort hotel and conference center.
• The plaintiffs challenged the citys use of
  eminent domain to transfer property to private
  developers to build new private uses. The
  Connecticut Supreme Court ruled in the citys
  favor, but the plaintiffs appealed the ruling to
  the U.S. Supreme Court.

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• The Kelo v. New London Decision (Contd.)
• Key Issues
• The use of eminent domain by a public entity to
  transfer private property to other private
  parties for redevelopment.
• The implementation of an economic development
  plan by a public entity as a legitimate public
  purpose through the use of eminent domain.

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• The Kelo v. New London Decision (Contd.)
• The Supreme Courts Decision What It Did and
  Didnt Do to Change Eminent Domain
• What the Decision Did
• It legitimized economic development takings as a
  valid use of eminent domain
• It reinforced the importance of an open,
  participatory, and comprehensive planning process
  in establishing the basis for the use of eminent
  domain
• It signaled increased scrutiny by the federal
  courts of the manner in which public entities
  exercise their eminent domain powers

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• The Kelo v. New London Decision (Contd.)
• The Supreme Courts Decision What It Did and
  Didnt Do to Change Eminent Domain
• What the Decision Did Not Do
• Allow public entities to exercise eminent domain
  powers in ways and under circumstances not
  already allowed by federal law
• Overturn state laws with tighter restrictions on
  the use of eminent domain than those set forth by
  federal law
• Restrict the right of aggrieved parties to
  challenge the manner in which public entities
  exercise their eminent domain powers

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• The Kelo v. New London Decision (Contd.)
• Controversy and Reactions
• Legislative proposals in Congress to remedy the
  assumed excesses of the Kelo v. New London
  decision
• State legislative responses to the Kelo v. New
  London decision
• Community concerns about the effects of the Kelo
  v. New London decision
• The impact of the use of eminent domain to
  facilitate the redevelopment of
  distressed/disadvantaged communities (social
  equity and environmental justice concerns)
• Fears of reduced access and influence on the
  decisions leading to the use of eminent domain

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• Key Points in the Decision
• Importance of an Integrated Comprehensive Plan
• Importance of Community Involvement in the
  Planning Process
• Greater judicial scrutiny and monitoring of the
  manner in which public entities exercise eminent
  domain to promote public purposes

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• APA Policy Guide on Redevelopment Key Issues
• Responding Effectively to Changing Development
  Trends
• Ensuring a Meaningful Role for Planners in the
  Redevelopment Process
• Redevelopment as an Exercise in Place-Making
  Creating Unique Built Environments that Reflect
  Local Culture and Resources
• Establishing Effective Public/Private
  Partnerships
• Ensuring Redevelopment Outcomes that Promote
  Social Equity and Environmental Justice
• Reinforcing the Link between Comprehensive
  Planning and Community Participation

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• History of Use
• Enabling Federal Legislation
• Federal Housing Act of 1937 Genesis of National
  Public Housing Program
• Federal Housing Act of 1949 Creation of Urban
  Renewal Program (focus primarily on production of
  public housing)
• Federal Housing Act of 1954 Expansion of focus
  to include rehabilitation and slum clearance for
  redevelopment
• Uniform Relocation Act of 1970 Established
  minimum requirements for providing relocation
  assistance to owners of properties acquired by
  eminent domain for federally funded redevelopment
  projects

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• History of Use (Contd.)
• The Federal Urban Renewal Program
• Use of Eminent Domain within the Urban Renewal
  Program
• Impacts on the Black Community Neighborhood
  Revitalization or Negro Removal?
• From Urban Renewal to Community Development Block
  Grants
• 1964 Model Cities Program and the War on
  Poverty
• 1968 Creation of the Department of Housing
  Urban Development (HUD) passage of the New
  Communities Act
• 1968 Demise of the Urban Renewal Program
• 1974 Establishment of the Community Development
  Block Grant (CDBG) Program
• 1982 Establishment of the Urban Development
  Action Grant (UDAG) Program

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• History of Use (Contd.)
• The Federal Urban Renewal Program
• Beyond Urban Renewal Lessons Learned
• The need to identify, value, and build on the
  social capital already built up by the residents
  of areas being considered for redevelopment
• The pitfalls of scorched earth redevelopment
  replacing declining but still-living communities
  with sterile and unintegrated new uses e.g.,
  single-use office, hotel/convention center, and
  luxury residential districts
• Evolution of the community role in urban
  redevelopment from unwanted distraction to
  essential stakeholder
• Delegation of eminent domain powers to
  community-based development organizations e.g.,
  Dudley Street Initiative (Boston)

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• Eminent Domain after Kelo A Roadmap for Black
  Planners
• A Cautionary Tale about Planning in Post-Katrina
  New Orleans If Youre Not at the Table, Youre
  Probably on the Menu
• Planning for Displaced Communities Top Down or
  Participatory?
• Reestablishing Ownership and Residency Rights
  Keys to Environmental Justice for Displaced New
  Orleans
• Environmental Impacts
• Cleaning Up the U.S.A.s Largest Urban SuperFund
  Site
• Providing Adequate Health Care for a Drowned City
  and Its Displaced Residents

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• Eminent Domain Discussion Questions
• What is the most effective planning process for
  redevelopment?
• From Comprehensive Planning to Strategic Plan

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• Eminent Domain Discussion Questions (Contd.)
• How do our communities evaluate the pros and cons
  of the eminent domain/redevelopment process?
• Application of social equity criteria
• Application of economic and environmental justice
  criteria
• How can eminent domain be used to enhance social
  capital in our communities instead of destroying
  it?
• Identifying and valuing community social capital
• Organizing the community to influence the
  redevelopment process so that existing community
  capital is preserved or enhanced
• Using existing and/or enhanced social capital to
  leverage outside resources to help realize a
  community-supported vision for redevelopment/revit
  alization

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• Eminent Domain Discussion Questions (Contd.)
• What are our community leverage points?
• Political
• Economic
• Community Relations/Public Opinion
• Legal
• Property Ownership
• Environmental
• Business Interests
• Social and Cultural Institutions

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• Eminent Domain Discussion Questions (Contd.)
• What are the most effective techniques for
  organizing our communities to participate in the
  planning of their future?
• Professional Networking and Pooling of Resources
• Identifying and Organizing Disenfranchised and
  Displaced Communities to Participate in
  Comprehensive Planning
• Forming Bridging Relationships (Alliances) with
  Stakeholders Outside of the Black Community
• Envisioning an Equitable Future for the Black
  Community Using Professional-Community Linkages
  to Leverage Resources for Planning
• Plan Implementation Helping Black Communities to
  Get into the Game