By: James J. Kelly, Jr.
The current debate over eminent domain as a tool to facilitate
economic development focuses on two starkly unattractive
alternatives. Property rights advocates insist that if strict
limitations are not placed on the ability of governments to condemn
private property and transfer it to private parties, then homes,
small businesses and entire communities face capricious
annihilation by state and local politicians and their well-heeled
patrons. Defenders of local governments, on the other hand,
warn that elimination of eminent domain as an effective
redevelopment tool will isolate older communities by thwarting any
efforts to coordinate investment.
I propose a pair of legislative reforms that offer a productive,
if not placid, interface between community stakeholders and the
governmental authorities responsible for development
planning. Specifically, community members’ legal rights of
long-term residency in their current homes should not be subject to
eminent domain pursuant to a required redevelopment plan until the
majority of them have approved the plan. Through this
Homestead Community Consent, these residents, as a group, will be
offering their homes for sale in exchange for a plan that will
truly improve their community. To solidify the ownership of
the redevelopment by these homestead residents and other
inhabitants who have actual, if not legally protected, long-term
residences in the neighborhood, continued membership in the
community should be assured by amending relocation laws to
guarantee these core community members an alienable Community
Residency Entitlement to replacement housing in the redeveloped
district. Under such a system, resident homeowners would
collectively control their rights to their individual homes in
order to improve their community, and each would have personal
control over his or her right to remain a member of that
community. Together, these two participatory processes can
convert an instrument of legal infamy into an opportunity for
community transformation and healthy reconnection with the
surrounding market.
The first part of the article will discuss the current
constraints on eminent domain generally and construct a theory that
maps out public necessity and just compensation as complementary
limitations on eminent domain that flow from the market limitations
facing the condemnor and condemnee, respectively. A broad
understanding of “public use” can work with a more robust reading
of “just compensation” to constrain eminent domain as against
homeowners without depriving them of the tools they need to
redevelop their neighborhoods. The second part of the article
examines the details of Homestead Community Consent and Community
Residency Entitlements as respective reforms on state planning
requirements and federal relocation law.