Cities: June 2005 Archives

More encouraging news: Tulsa State Rep. Mark Liotta, a Republican, issued the following statement last Thursday in response to the U. S. Supreme Court's ruling in the eminent domain abuse case Kelo v. New London:

OKLAHOMA CITY – A U.S. Supreme Court decision allowing governments to seize private property to benefit developers sets a dangerous precedent that must be fought, a state lawmaker said Thursday.

“When I first read the story, I could not believe it could happen in this country. said Rep. Mark Liotta R-Tulsa The U.S. Supreme Court ruled Thursday that governments may seize individuals’ homes and businesses to benefit private economic development if the new development will generate new tax revenue to the government.

“This ruling is outrageous and undermines the foundation of the American dream – the right to truly own your home,” said Liotta, “It’s a direct slap in the face of property owners. Eminent domain can be used for the public good, but the court has stretched that definition way beyond reason by saying ‘the public good’ now includes the personal financial gain of private developers, if it translates to increased revenue to the local government. Every homeowner and potential homeowner should be outraged.”

Supreme Court Justice Sandra Day O’Connor warned in her dissent that the beneficiaries of the court ruling “are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

Liotta agreed, saying the decision opened the door for wealthy individuals to run roughshod over middle-class families. “This decision opens the door for massive corruption at all levels of government,” Liotta said. “Every community is now open to the possibility of hidden deals between unscrupulous developers and their cronies on city councils or state legislatures to take property for private gain.”

Liotta warned “I intend to study current state statutes to see if there is any possibility of further protecting Oklahoma property owners during the next legislative session. We simply cannot sit by and wait until it’s your home or my home they come after. This fight is not over.”

He's right -- no home, no business, no church is safe under this ruling and under Oklahoma's current laws. I'm very happy to see that the Republicans in our state legislature are taking this issue seriously and looking for ways to protect property owners.

This makes me want to stand up and cheer:

Oklahoma State Senate Communications Division State Capitol Oklahoma City, Oklahoma 73105

For Immediate Release: June 27, 2005

Senator Brian Crain

Sen. Crain Says Legislation Needed to Prevent Abuse of Eminent Domain

Sen. Brian Crain is planning to introduce legislation limiting the circumstances local governments can use for taking personal property. He said last week’s Supreme Court decision was a serious blow to the rights of individual property owners.

“I support the use of eminent domain for roads, bridges and other kinds of infrastructure projects that clearly benefit the public. But I do not support selling eminent domain powers to the highest bidder. That’s what I’m afraid this Supreme Court ruling could do,” said Crain, R-Tulsa.

Crain said he was very surprised by the ruling but said it was indicative of the kind of judicial activism that has raised concerns throughout the nation by legislators and private citizens alike.

“I believe the Constitution is very clear as to what circumstances justify the use of eminent domain. I plan on introducing legislation that will preserve the power of local governments to use it for projects that truly are for the public good but I think the idea of allowing local government to seize property for the city’s financial benefit opens up the door for cronyism and corruption,” Crain said. “That should simply not be allowed to happen.”

Sen. Crain said more than just home ownership could be at risk because of the court decision.

“I fear that this decision could extend to water rights, mineral rights and any other rights involving real property. We need to protect the property rights of all Oklahomans by limiting the use of eminent domain to its traditional purposes.

For more information contact:
Senate Communications Office - (405) 521-5774

Brian Crain is a freshman Republican state senator from Tulsa, an attorney with a background in real estate law. It's encouraging to see that our new Republican legislators are focused on putting their principles into practice. That was evident in this past legislative session, with the passage of landmark pro-life legislation, a road bill that reallocated existing resources to make road rehabilitation a priority without raising taxes, and the achievement of workers compensation reform.

As I noted yesterday, some see a political opportunity for Democrats in the aftermath of Kelo v. New London, but if Republicans stick to their principles, we'll see the GOP leading the charge for limits on the use of eminent domain. There are certainly those Republicans in name only who are comfortable with abusing government power to reward their cronies, but it's my observation that Brian Crain is far more typical of the Republican caucus in the Oklahoma legislature.

David Sucher of City Comforts has posted a number of interesting thoughts about the Supreme Court's ruling in Kelo v. New London. His initial reaction -- you don't need eminent domain to promote economic development:

The central planning notion put forward by New London, Connecticut -- that it needs to assemble large tracts to encourage development -- is simply a lie. There is no basis to demonstrate that such assemblages even work. Economic growth -- just take a look at Seattle - does not come from government intervention in the land assembly process but from the energy and enterprise of individuals trying to something crass like make a buck.

He asks a question of those who applaud the Kelo decision -- "Why do you need the ability of being able to condemn one piece of private property and sell it to another private owner?" -- and challenges them to cite a project that would not have happened without condemnation to transfer property from one owner to another.

Sucher seems to think the Kelo decision offers an opportunity for political realignment in favor of the Democrats, if they can get away from "the expected statist/big government response." I agree it's an opportunity for realignment, but more at the local level and not necessarily around national partisan labels. What may happen is what has started to happen in Tulsa, where opponents of crony capitalism on both left and right work together to oppose eminent domain abuse, injustices in land use regulation, and other situations where the wealthy and well-connected pull strings to get their way at the expense of the rest of us.

Senate Majority Leader Bill Frist sent out the following response last Friday to the Supreme Court's ruling in Kelo v. New London:

As you may have heard...

The United States Supreme Court issued an opinion yesterday that has raised great concern among private property owners across America.

Understandably so.

In this case, known as Kelo vs. New London, the Court held that local governments can seize private property and give it to private developers -- if it is determined that those development projects also serve a public purpose.

The concern here -- as voiced by Justice Sandra Day O'Connor in her dissent -- is that "under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner."

Indeed, I share that concern.

The U.S. Constitution -- as provided under the Fifth Amendment -- gives government the right to take private property for public use after paying the property owner just compensation (eminent domain).

And, make no mistake, without this power it would be very difficult to build the roads, schools, and parks we all need and use.

Yet there are many important questions that we need to consider...

How can we be sure that a public purpose is served, when government transfers property from one private owner to another?

Does this decision give governments too much power over private property owners?

What assurances do Americans have -- those who work so hard to buy their own homes -- that government will not take those homes away?

Will this decision give undue advantages to politically connected developers and wealthy individuals?

Private property has long been a cornerstone of the Constitution and our American society. Indeed, our economy is based on the principle of private ownership of property.

It was John Adams who said:

"Property is surely a right of mankind as real as liberty."

Any infringement on that right cannot be undertaken lightly.

We should give careful consideration to these questions and explore the practical implications of this decision.

Bill Frist

(Hat tip to David Rollo for sending that along.)

I'm pleased to see that the Senate Majority Leader is concerned, even though his conclusion is comically vague. I hope his concern means that he will see to it that the next justice appointed to the Supreme Court is a strict constructionist -- someone who understands that "public use" means just that, not "public benefit" or "public purpose." And by "see to it" I mean break through a filibuster if necessary for a strict constructionist nominee and block any nominee from the White House that has a record of not reading the Constitution as written.

Assuming that that probably won't happen, what can be done to protect private property from being seized for political reasons? Here are some steps that Congress could take:

• Eliminate the Federal tax exemption for local government bonds issued to finance condemnation except for public infrastructure.
• Ban the use of Community Development Block Grant money (or other Federal funds) for condemnation except for public infrastructure.

The Oklahoma state legislature could do even more, since Oklahoma's counties and municipalities are creatures of the state:

• Tighten the statutory definition of blight to be restricted to real dilapidation. At the moment, your property could be considered blighted if it suffers from "arrested economic development," "inadequate parcel size," "predominance of defective or inadequate street layouts," or "diversity of ownership."
• Restrict the condemnation power of cities, counties, and public trusts, with a strict standard for "public use" and some sort of automatic independent review of whether the proposed use meets that standard.

At the local level, the matter is in the hands of the voters:

• Amend the city charter to restrict the scope of condemnation.
• Elect local officials -- mayor, city councilors, county commissioners -- who reject the use of condemnation except for public infrastructure.

Excellent post by Mary Katherine Ham on Townhall.com's C-Log on the Supreme Court's ruling Thursday in Kelo v. New London:

I own a 2-bedroom, 1,500 sq-ft house.

No you don't. Because someone wants to put a 5-bedroom, 4,000 sq-ft house on your lot. It will bring in more property taxes.

I own a 5-bedroom, 4,000 sq-ft house.

No you don't. Because a local BBQ-purveyor wants to turn your lot into a restaurant, which will turn a profit and produce more taxes than your home.

And so on up the chain.

Maybe we could get a "My Home is My Castle" Amendment going? Are you allowed to amend the Constitution to say what it already said?

That's the problem. When we propose countering an overreaching judiciary by passing new laws and constitutional amendments, what's to say those judges won't just ignore the new laws or deconstruct them into oblivion? I'd say impeach justices that ignore the Constitution, but I'm not sure they wouldn't rule the impeachment unconstitutional.

The U. S. Supreme Court issued its ruling today in the case of Kelo v. New London, a test of the limits of government power to use eminent domain. The Court, by a 5-4 majority, ruled in effect that there are no limits, that government may use the threat of force to take private property for the purpose of giving it to another private party, as long as they can make some claim to public benefit, such as increased tax revenues.

If I lived in the neighborhood between I-44 and Promenade Mall, I'd be very nervous right now. That'd be a great place for new retail, what with the freeway access, and the city sure could use the increased sales tax revenues.

The coalition concerned about eminent domain abuse is a broad one, extending across the political spectrum. This outcome will disappoint conservatives who believe in limited government, strict construction of the constitution, and the sanctity of private property. This outcome will disappoint liberals who hate to see government use its power on behalf of big business to pick on the little guy.

To my liberal friends who are disappointed in this result: Please note that the Court's four strict constructionists dissented in this case. The five justices who voted to uphold a city's right to practice crony capitalism:

John Paul Stevens -- appointed by Gerald Ford, a liberal on social issues.

Stephen Breyer -- appointed by Bill Clinton, a liberal on social issues.

Ruth Bader Ginsberg -- appointed by Bill Clinton, a liberal on social issues.

Anthony Kennedy -- appointed by Ronald Reagan after Robert Bork was rejected by the U. S. Senate for being a strict constructionist. Reagan settled on someone with a mushy moderate reputation as the best he could do with a majority of Democrats in the Senate. (If Robert Bork were on the Court instead of Anthony Kennedy, the outcome today would have been very different.)

David Souter -- the stealth justice appointed by George H. W. Bush. Souter's views on contentious issues were unknown, and the Bush administration wanted a nominee with no "paper trail" that could be used by Senate Democrats to "bork" him. Now we know that if there had been a paper trail, Senate Democrats would have embraced Souter enthusiastically.

So we have three justices appointed by social liberals, and two justices appointed at a time when social liberals controlled the confirmation process in the U. S. Senate.

These five justices have discovered previously unknown "rights" in the Constitution, such as the right to sexual expression. Sometimes they ignore the Constitution entirely and find the material for their rulings in European law. For a group so quick to see things that aren't there in the Constitution, it's strange that they can't see a limitation on the power of government that clearly is there.

To my liberal friends: Having a Supreme Court majority willing to interpret the Constitution creatively has gotten you some changes you wanted, changes you would have waited a long time to achieve through the legislative process, but your victories have come at a price. That same Supreme Court majority is unwilling to uphold the plain meaning of the Constitution when it limits government power.

I understand why liberals dislike strict construction, because it means that the societal advances liberals seek will take an excruciatingly long time to accomplish, as they try persuade a majority of the public to support their views, but our liberties are most secure when the Constitution is honored as it was written. Using the Supreme Court to blaze a shortcut by legislating from the bench is tempting, but dangerous.

I'm reminded of something from the play "A Man for All Seasons":

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

You don't like the laws -- use the legislative process to change them. You don't like the Constitution -- there's a process to amend it. It's not easy, but it isn't supposed to be easy. Can't we all, left and right, agree that, if making change easy means putting every liberty at risk, it isn't worth it? We need judges who understand that, too.

I hope my liberal friends will keep that in mind when the next Supreme Court appointment is before the Senate.

UPDATE: Michelle Malkin has a round-up of opinion and analysis on the decision.

Earlier this week, Michael DelGiorno interviewed urban development expert Joel Kotkin. Kotkin knows Tulsa well, having visited and written about our city during the tech boom and the tech crash.

As you might expect, the topic of the interview was Vision 2025, and whether a downtown arena and convention center is going to be the answer to our city's woes.

An MP3 of the interview is linked from the KFAQ home page. It's about 25 MB, so I downloaded it, converted it to a lower bitrate (which means lower quality, but still good enough for voice), and have it available here, weighing in at about 3 MB. (I used Total Recorder to do the conversion, which does a great job of converting between audio file types. It's also capable of capturing any audio on your computer, such as streaming audio of a radio broadcast from any source. It's well worth the price.)

Kotkin visited Tulsa in May 2002 at the invitation of Brent Johnson of SecureAgent.com, as preparations for the Mayor's vision summit were underway. About a year later, I wrote an entry about Kotkin's visit and speech, with links to the Tulsa Whirled news story and op-ed on his visit, as well as his own piece in the Wall Street Journal.

It was fun to think back to that speech and the Q&A that followed. I submitted a question about whether city leaders were right in thinking that expanding the convention center and building a new arena was the key to Tulsa's economic future. From the Whirled's news story:

Kotkin's discouragement of cities seeking to build new arenas and convention centers drew some applause from the crowd.

"I think those leaders are living in the wrong decade," Kotkin said, referring to backers of expanded convention industry facilities. ...

Kotkin contends the convention industry has "played itself out."

"I can think of better things to do with the money," Kotkin said.

Mayor LaFortune's response was funny, but not intentionally so, and looking back, it was an early sign that we weren't getting the bold reformer we had voted for. He began to try to get Kotkin to agree that in Tulsa's case it would be a good idea to invest in convention facilities. Here's what he said in a later interview:

"I was surprised to hear him say that was not necessary as we move forward," LaFortune said in a Friday interview.

"I hear very little dissension in Tulsa that our Convention Center that exists today either needs to be upgraded and modernized or a new convention center built elsewhere," LaFortune said.

"I believe the Chamber officials can point specifically to business we've lost which translates to lost sales tax revenues and impacts the quality of life in our city because we don't have the sales tax dollars that make the basic improvements to our streets and infrastructure," he said.

There was a moment there when Bill LaFortune could have moved forward as a real leader, defying the conventional wisdom and leading Tulsa in a visionary direction, but I guess he didn't have it in him.

I appreciate a couple of things about Kotkin. First, he's skeptical of urban revitalization fads and looks to see if the data are there to back up the claims made for whatever is the latest rage. Second, he understands the value that middle class families add a city, at a time when many urban analysts seem to believe that families are too boring to be important, and that the key is to cater to the tragically hip. I encourage you to browse his website, which not only features his own work, but articles of interest by other authors, like this recent op-ed by John Tierney on the "Circus Maximus Syndrome" that afflicts American mayors. Tierney has this to say about the demise of plans to build a new football stadium on the west side of Manhattan:

The proposed stadium would have been a generic hulk like most other new arenas and convention centers, sitting empty most of the time and preventing the surrounding area from becoming the kind of space that urbanites really revere: a neighborhood with homes and businesses and street life.

Those neighborhoods are hurt by grand public buildings that take up valuable real estate and must be paid for with higher taxes, which drive businesses and the middle class to the suburbs. Older cities have made comebacks the past decade by getting back to that core function of protecting people's lives, but most still haven't figured out how to restore their commercial marketplaces.

Instead, their leaders build projects whose economic benefits go to the Circus Maximus industrial complex: real estate developers, construction workers, bond traders, owners of hotels and sports teams. Aside from the thanks of these groups, politicians also get a pleasant distraction from their mundane duties.

That last paragraph is comes close to containing a concise and accurate list of who pushed Vision 2025 and who's been paid so far from Vision 2025 tax money.

Still waiting for the U. S. Supreme Court's ruling in Kelo v. New London, expected to be a landmark case on whether governments have the power to take property by eminent domain for private use. This week's edition of Phyllis Schlafly Live, an hour-long radio show, is an interview with Steven Greenhut, author of Abuse of Power: How the Government Misuses Eminent Domain. A caller to the program talked about an attempt to add checks and balances to the eminent domain process in Missouri (House Bill 258).

You can hear the show until about midday tomorrow on www.rightalk.com, where you can also hear this week's edition of Hoist the Black Flag with Ace and Karol, featuring a chat with National Review editor and music critic Jay Nordlinger.

It surprised me the first time I noticed it, but Phyllis Schlafly and her organization Eagle Forum have been stalwarts on issues that you would normally associate with libertarianism, not social conservatism. Eminent domain abuse is one example, but the first such issue that came to my attention was freedom of encryption. Eagle Forum opposed Clinton administration efforts to require use of encryption schemes with "back doors" accessible to law enforcement. Eagle Forum also opposed the 20-year extension of copyright passed in the late '90s. (That last link has links to Schlafly's writing on the subject and to an article in The Nation. It's been my experience that social-issue "wingnuts" like Schlafly -- and me -- are more concerned about abuse of government power and corporate welfare than socially moderate and liberal Republicans.)

Here's a story about a city planner who considers the city's comprehensive plan a "mandate," and he's leading the effort to update the plan, which was last updated in ... 1998! The last update lead to the creation of the city's first historic districts.

The process of gathering public input is designed to help draw out residents' dreams for their city in twenty years' time:

Shaw hopes the session will be made more lively and interactive by the approach of asking residents in attendance a series of questions about what they would most like to see happen in [the city] and what they expect to see happen as a way to promote discussion of the future development of the community.

One query will ask residents to identify what they think [the city]'s strengths and weaknesses are. Another will tap into the creativity of meeting participants.

"We'll ask, if you were given a camera and asked to take photos of the five strongest features of [our city], what would they be?" Shaw said.

"We're also going to ask the question that a lot of us ask this time of year. If you have friends or relatives coming in from out of town, what three places do you want most to take them to, and what three places do you least want to take them to?" Shaw said.

A final question will require those attending the meeting to think like a journalist.

"The scenario that we'll present is, imagine that it's 2025, 20 years from today," Shaw said. "You're a reporter for a major magazine, and you've been assigned to do a story about [our city]. What are you writing about? What happened over the previous 20 years that led [our city] to where it is? What were the successes, and how did they get there? What challenges did they face, and how did they work to overcome them?"

It's not Tulsa, obviously -- our comprehensive plan hasn't been updated since the '70s. It's Waynesboro, Virginia.

Good news from Utah -- the governor has signed into law a bill prohibiting redevelopment authorities from the exercise of eminent domain. In the name of increasing tax revenues or economic development, redevelopment authorities seize land from one private owner to sell it to another private entity. While there is hope that the U. S. Supreme Court will declare the practice unconstitutional when it rules in Kelo v. New London, it's nice to see that elected officials recognize the abuse of eminent domain and are taking steps to stop it. The Heartland Institute, an Chicago-based free market think tank, has published an analysis of the new law.

(Hat tip to Eminent Domain Watch.)