Monday, July 18, 2005

“Hail Seizers!”

The eminent domain issue continues to galvanize diverse constituencies. This post’s title for instance is cribbed from Jacob Sallum’s on-line piece for the libertarian Reason magazine. The Sallum piece is cited in another eminent domain article penned by Brad Lander, director of the progressive Pratt Institute Center for Community and Environmental Development.

Sallum’s piece is directed at the New York Times editorial that we have already commented on. The important point that needs to be continually reiterated, however, is fact that the court’s decision and the Times’s rationalization of it sets absolutely no limits on what constitutes legal taking. As Sallum writes:

“Mindful of the appearance that big corporations such as Pfizer and the New York Times Co. use eminent domain for their own ends, the Times cautioned that "eminent domain must not be used for purely private gain.”
Anything’s a “Public Benefit”

Which gets us back to the vaunted Plan, you know the one that somehow justifies the taking of your property. Without the Plan it’s a no-no but with the Plan anything can be justified. What this mystifies of course is the fact that a) plans are always a creative part of the taking and b) all a plan really does is to ensure that the scope of the eminent domain seizure is properly grandiose.

In fact, without the Plan more of people’s property would be safe. Justice O’Conner, cited by Sallum, gets to the core of this issue:

“nearly any lawful use of real private property can be said to generate some incidental benefit to the public.”
Left-Right Coalition

Lander’s piece hits the protean nature of the eminent domain questions and underscores the point we have continually made. The progressive position against development becomes linked to the conservative affirmation of basic property rights (“all rights are property rights,” says Sallum).

Not everyone agrees, however. It is interesting that David Goldberg, the former counsel to the NAACP Legal Defense and Education Fund, filed an amicus brief in support of the Brooklyn Nets development. Goldberg has been collaborating with the Community Rights Counsel, a D.C. organization which works with community groups that are seeking to “preserve the power of government to regulate development.”

Accountable Development

Goldberg takes issue with Siegal and Develop Don’t Destroy because, unlike the Robert Moses-sponsored urban renewal of the 1950s and 60s that displaced poor people arbitrarily, the Atlantic Yards project displaces middle-class homeowners and business people “who are being paid a fair market value for their property.”

This just demonstrates how tricky and nuanced the eminent domain issue can be. It’s worthwhile to note that it was the NAACP that intervened in New London, on behalf of the homeowners, indicating that it might not be easy to hold an absolutely pure ideological position on this issue.

The Neighborhood Retail Alliance’s Position

We have been consistent over the past 20 years in our efforts at protecting neighborhood business. Our position in this fight, however, did not emerge from the purity of an intellectual ivory tower but from a perceived vacuum that needed to be filled. Put simply, no one was stepping up to protect the interests of neighborhood stores in the face of first suburban style shopping centers and then an invasion of box stores.

On this front we have a great deal to be proud of. You can read about some of these success stories on the website. From the protection of 15 supermarkets in an East Bronx shopping center fight in 1981 to the defeat of BJ’s and Wal-Mart in 2005, the Alliance has been the only group successfully lobbying for neighborhood businesses.

In fact we are proud to say that we have been the linchpin in the defeat of five box store fights in the past five years and, even more impressively, got one company (Costco) to totally give up on its misguided urban adaptation (“Costco Fresh”). So if people want to criticize us for our support of Atlantic Yards let them. Just ask yourself however which of the protagonists in this argument you’d want to see in a political battle if your neighborhood was being threatened.

Where do we go from here?

It seems to us that the overlapping sides and nuances of the eminent domain battle demand a full and frank political debate. We’d definitely say that our position has not been fully defined and, as so often in the real world of politics, will gain more clarity as this debate continues to percolate.

We’re not sure yet that we will always agree, for instance, with Brad Lander’s position that eminent domain can be part of an accountable development process. We do feel, however, that without such an approach it is hard to see where seizure is justifiable. This is particularly true when small minority businesses are “traded up” for larger chains or box stores after the smaller entrepreneurs have pioneered the redevelopment of blighted areas.

Property Rights are Important

We will always need to be extremely vigilant about property rights because we agree with Sallum’s position and that articulated by the conservative members of the Supreme Court. To believe otherwise is to begin the embrace of the collectivist “greater good” mentality that Goldberg seems to express.

The important point to stress is that one can never be cavalier about taking anyone’s property. If you don’t feel the need to at least in part stand up for property rights you are left in a relativist position that, when you examine it, leaves the protection of your own interests in peril. It does no good, for instance, for Goldberg to argue that eminent domain is OK if it benefits poor people but not so if it hurts them. It is the principle of property rights and its defense that offers all of us, rich and poor alike, the protection we all need and deserve.

New Jersey up Next

Which brings us to New Jersey where, as reported in Friday’s New York Times, both candidates for governor have come out strongly against eminent domain abuse and, most tellingly, have also begun to craft policy positions on the issue. Interestingly, Forrester the Republican makes the point about a “sinister” nexus between pay-for-play and development abuse. Corzine for his part introduced a 7 point plan which according to a spokesperson (if you can believe it), “had been in the works since even before the court ruling.”

Hail Brodsky

The Times also points out that a “bipartisan, nationwide gallery of officials have condemned the ruling and pledged to protect their constituencies. First and foremost in New York is attorney general candidate Richard Brodsky who, not accidentally, has also been in the forefront of the accountable development movement.