Elm Street extension could prompt eminent domain abuse

by Mike Martin

March 24,2007

A city-sponsored plan to extend Elm Street east to College Avenue reminds us that a specter is haunting Columbia—and virtually every city in America.
The specter of eminent domain.

An Elm Street extension would run right through several homes owned by Mark Stevenson's REMI (Real Estate Management, Inc.) and through the Paquin Tower parking lot. Yet in all the discussion, REMI and Paquin are barely mentioned.

Instead, we read in the Columbia Daily Tribune that consultants from Boston-based Sasaki Associates laid out $100,000 worth of big ideas at a Jan. 9 meeting in Columbia City Council chambers.

Among those ideas is the creation of a "new development area"—presumably for private purposes—"at the expense of old, brick residences."

The terms "vision" and "visionary" surface with almost every breathy utterance, so much that they seem a euphemism for—pardon the Marxian metaphor again—specters yet to haunt.

At the Elm Street meeting, city manager Bill Watkins congratulated Sasaki for "bringing together the three partners": city government, MU and Stephens College. The partnership list notably excludes REMI, its tenants, Mr. Stevenson, the Columbia Housing Authority and the residents of Paquin Towers.

About the use of eminent domain, Sasaki consultant Fred Merrill refused to rule it out, saying that although it wasn't a "first choice," it was "something to talk about."

Something to talk about, indeed. When the U.S. Supreme Court, in the now-infamous Kelo vs. City of New London, Conn. decision, held that local governments could take property for private purposes, they cheapened a precious power once characterized by the rareness of its use.

Precious powers guard the liberties at the top of the slippery slope. Precious is the power to send one person into a battle that can slide into war; the power to restrict one public gathering that can slide toward a purge; the power to censor one word that can slip into state-controlled speech; and the power to take private property for public purposes, which is rapidly becoming a cheap way to pick up prime development sites.

Before Kelo, two centuries of legal precedent and legislative intent held that inexorable public need was the only reasonable trigger for the exercise of eminent domain's precious power. Expedience, beautification, high-minded purpose and tax-base improvement were rarely enough.

For those who think that government misuse of eminent domain can't happen here, Institute for Justice Director William Maurer warns in the Jan. 11 Wall Street Journal that "it can't happen here" really means "it is happening right now."

Maurer tells of the Strobel sisters, who fought City Hall when Burien, Wash., deemed "not upscale enough" a piece of property the sisters owned that long had housed a popular diner. Both trial and appellate courts held that while the city's actions might be "oppressive" and "an abuse of power," the condemnation could proceed.

The Burien-Elm Street parallels are striking. In the Burien case, an old but popular diner stood in the way of an ambitious, privately owned "Town Square" development featuring condominiums, restaurants and offices.

In the Elm Street case, old but popular rental houses—and a parking lot used by disabled individuals—may impede an ambitious, privately owned "Garden District" featuring a hotel, cafes and a conference center.

Lest the tone of this article suggest otherwise, the idea that progress should stop, or that ambitious new developments shouldn't proceed, is as short-sighted and un-American as, well, the idea that eminent domain become a cudgel private developers can use to force below-market sales.

Each whack of that cudgel reinforces a pernicious precedent creeping across the fruited plain, one that William Maurer says "has local governments taking property not upscale enough for the bureaucrats' ‘vision.'"
There's that word again.

Popularity: 14% [?]