New urbanists divided on use of eminent domain

Some link property condemnation with failed renewal projects; others see eminent domain as an essential tool. The US Supreme Court’s June decision upholding the use of eminent domain for a “public purpose” such as urban economic development has touched off strong disagreement on whether New Urbanism should endorse or reject the government’s power of condemnation. John Norquist, president of the Congress for the New Urbanism and former mayor of Milwaukee, declared on the public television NewsHour that it’s a mistake when cities use their eminent domain powers to “increase the value of property.” Municipalities often make poor decisions on economic development, the CNU executive said during a June 23 broadcast. “There are empty lots all over America where cities have condemned land and then it just sits there, idle. Assembling parcels, tearing out the fabric of the city and creating superblocks has been a strategy for economic failure.” Other new urbanists have insisted that eminent domain is at times imperative — it makes it possible for a government to assemble land and revive a neighborhood, inject life into an ailing downtown, or create a town center. A number of new urban projects, either completed or under way, have relied at least partly on condemnation of privately owned properties. New Urban News found the following examples of new urban projects that used eminent domain: • Mizner Park in Boca Raton, Florida, one of the first and most successful new urban town centers, employed eminent domain to acquire a quarter-acre parcel — a small but conspicuous part of the 30 acres occupied by the 14-year-old center. “There were several outparcels in front of the mall” that Mizner Park was designed to replace, said Robert George, consultant to the Boca Raton Community Redevelopment Agency. “Those were the ones that there were problems acquiring.” Condemnation enabled the agency to obtain the quarter-acre where a rattan furniture store stood. The availability of eminent domain also helped the agency negotiate settlements with other owners. • Plans for Belmar, a 100-acre, $750 million mixed-use center on the site of a failing mall in Lakewood, Colorado, bogged down when the developer, Denver-based Continuum Partners, could not persuade two national retailers to renegotiate existing leases and support the redevelopment. Although Continuum persuaded 140 tenants to move, negotiations with Target and the May Company failed, said Continuum managing director Mark Falcone. The city’s redevelopment agency then stepped in, condemning the master lease under which the original Villa Italia mall operated. The court settlement was not inexpensive, Falcone said, “but it probably saved us from being stalled by another two or three years.” Essentially, the major retailers had been holding out for a conventional shopping center layout, whereas the city was pursuing a new urban vision of a “a heavily urbanized grid framework” covering a 22-block area, according to Falcone. “Condemnation allowed the city to push its new zoning forward.” • Redevelopment of downtown Brea, California, a $130 million endeavor that produced both a conventional shopping center and a lively, adjacent mix of housing, restaurants, and shopping, involved relocation of some 250 homes and 41 businesses, with three properties going through the entire condemnation process, according to the California Small Business Alliance. • CityPlace in West Palm Beach, Florida, relied on condemnation to assemble 77 acres after an initial developer privately bought up more than 300 parcels for the project and then lost them to various parties in foreclosures. “It was a twisted mess,” former West Palm Beach planning director Dan Cary said of the ownership pattern prior to condemnation. Some of the properties designated for the retail, residential, and entertainment center “had fallen into absentee ownership,” he said. “There were crack houses” and there were properties owned by overseas banks. ”The ownership was so tangled up, it was quite a feat by the city to consolidate it.” • East Beach, the redevelopment of a rundown, crime-plagued neighborhood in Norfolk, Virginia, is moving forward because the Norfolk Redevelopment and Housing Authority obtained and cleared 100 acres. The Authority acquired 291 parcels, 32 of them by going to court. Of the eminent domain actions, “15 of those were disputes over acquisition price and 17 [were] to obtain a clear title,” said James E. Gehman, assistant executive director. “Obviously, we could not have assembled and resubdivided that land with 32 holdouts.” Leyland Alliance and East Beach Renaissance LLC are rebuilding the neighborhood with 700 varied owner-occupied and rental housing units plus a town center, using a plan by Duany Plater-Zyberk & Company. • Southside, a new urban redevelopment of 10 acres in a dilapidated Victorian neighborhood at the edge of downtown Greensboro, North Carolina, “used eminent domain to get the most blighted of the houses,” said Sue Schwartz, chief of neighborhood planning for the city. As in many such projects, the government’s decision to resort to condemnation if necessary spurred most property owners to negotiate. “Only one case went to court — a store that sold fortified beer and wine and cigarettes,” a blighting influence on the neighborhood, according to Schwartz. • A 200-acre extension of downtown North Augusta, South Carolina, planned by Dover Kohl & Partners and now being developed by Leyland Alliance and Civitas, used a backup threat of condemnation to acquire two of the 14 or 15 parcels that were needed, according to Skip Grkovic, the city’s director of economic and community development. The site, along the Savannah River, was an industrial area that fell into disuse, Grkovic said. He pointed out that in South Carolina and in about seven or eight other states, “eminent domain cannot be used for redevelopment unless it’s for a public use.” The city seized the two parcels with the intention of turning them into parkland, which will complement other uses in the project called Hammond’s Ferry. • Redevelopment of Beall’s Hill in Macon, Georgia, winner of a CNU Award in June, necessitated acquisition of some of the properties in the 53-acre, mostly African-American neighborhood. Peter Brown, who oversees Mercer University’s efforts in Beall’s Hill, said “about 40 percent of the acquisitions have been by condemnation,” on behalf of a nonprofit developer. Brown said eminent domain is used for one of three reasons: “to clear titles to properties with willing sellers and bad titles,” “to eliminate crack and shot houses, houses of prostitution, or flophouses,” or “to acquire key structures (abandoned, critical corners, highly negative adjacency) or vacant lots where the owner is unwilling to sell at market price or cannot be located.” No one knows what percentage of new urban projects involves eminent domain. Certainly it’s a minority — perhaps a small one — of overall new urbanist development. In greenfield projects, eminent domain is probably rare or nonexistent. It’s in redevelopment of older places — whether residential neighborhoods or commercial areas — that condemnation most often comes into play. tool for revitalization David Dixon, head of planning and urban design at Goody Clancy Associates, views eminent domain as an essential tool for turning around areas that have deteriorated. In Columbus, Ohio, his firm’s work in a district adjoining Ohio State University “has led to fairly significant redevelopment, with more coming,” Dixon said. “This would have been utterly impossible if our clients [the nonprofit Campus Partners for Community Urban Redevelopment] did not have eminent domain.” Urban land is often divided among many separate ownerships, making it difficult to amass a sizable site. Some owners are simply speculators. Some others are simply individuals who cannot agree on what to do with their property. In West Palm Beach, for example, Cary encountered the not uncommon phenomenon of the “immobilized” owner, a man who stood by while his vacant building decayed. “He didn’t want a partnership [which could have redeveloped the property], and he was too old to do it himself,” Cary recalled. When there is an absentee owner, a family that cannot agree on how to handle its property, or an immobilized owner, government sometimes needs to use condemnation to bring about renewal, Cary said. “Not all property is owned by sophisticated real estate professionals who make the right decisions for the community or even for themselves.” Kelo v. New London, the case decided by the Supreme Court, has caused an uproar throughout the nation, partly because a public agency (the New London Development Corporation) seized houses in decent condition with the aim of transferring the land to a private developer who would build something more valuable, for a more affluent clientele. A number of new urbanists have argued that the proper course is to save existing houses and other buildings and incorporate them into a redevelopment rather than demolish them. As Richard Layman of Washington, DC, noted in an exchange on the Pro-Urb online discussion group, many are skeptical of eminent domain because governments have often used it to produce big single-use projects — the antithesis of the fine-grained, human-scale settings prized by new urbanists. Dixon argued, however, that opponents of eminent domain overlook important factors: First, many new urban projects need considerable acreage to achieve their aims. Even Seaside was planned from the start to encompass 80 acres. Second, although “new urbanists should, where possible, attempt to design around appropriate existing buildings, the reality most of the time is that fragmented urban land ownership patterns represent a very significant obstacle to unlocking the ability to attract investment into older urban areas.” Third, it is quite feasible to build a large project that will possess a fine grain. Dixon believes that to generate vitality today, it is often necessary to increase the density of development substantially and introduce larger floorplates for retailers — factors that favor clearance of many old buildings and that encourage the assembly of sites encompassing several blocks. Another reason for larger projects is that they attract a higher level of developer and design talent, according to Dixon. Norquist disagreed, contending, “The small developer, the small business person, the small property owner, they’re the ones that are the key to urban revitalization.” Seattle planning commentator David Sucher argued that communities are better off having many small projects, reflecting many minds and many individuals’ commitments. The situation remains in flux. Since June, many states have begun considering whether to limit the use of eminent domain. Among the first to act was Alabama, where in late July the legislature voted to prohibit governments from condemning properties in nonblighted areas to make way for private developments. u
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