H 1170, 'An act relative to eminent domain takings'

[unhappycamper]

Received vis email:


From an FPAC thread on this subject way back on Fri, June 24, 2005 12:21 pm, someone on the FPAC list (Bob Souther, quoted with his gracious permission) said:

> > Is anyone else disturbed by a page one story in today's Globe whereby the Supreme Court ruled that cities and towns may take private property by eminent domain for almost any purpose they like, not just roads, bridges, schools, etc.? This means that the City of Boston might decide our building (300 Summer St.), or yours, might make a nice little hotel to accommodate the Convention Center (not a farfetched idea, if you think about it). The ruling came from a case in New London, Conn., where nine homes will be taken for private housing, stores, restaurants and businesses. And the ruling was applauded by our very own BRA. Yikes!<<

Today, this threat has not gone away, although you don't hear about it much the past two and 1/2 years. The New London case cited below (posted on the SAND list) and the Supreme Ct. judgement made it legal, so just in case someone high up decides to pull it out of their legal bag of tricks for Fort Point, there is something you can do to help stop the Mayor's BRA Developer maw devouring the landscape and disenfranchising citizens. I'm sorry if this seems a tad late- I just got the alert Sunday. The hearing date is passed but it doesn't mean you should not act! Letters can also be written after the hearing also, since the Committee won't vote right away, but they may more closely question the developers who will be opposing eminent domain controls if they get public comments in support. The author of the attached letter is the head of the Alliance for Boston Neighborhoods website. Its contents are also below, at the end of the letter. Please pass this alert on to anyone you think might be interested, condo boards, co-ops, Please pass it along to anyone you think will be receptive, especially here in Fort Point. Again, sorry for the late notice. Please pass this on to your co-op boards, condo bds, and friends. -Dan

Attn.:
South Boston State House Representative: [email protected]
Judiciary Committee Chairs and Vice-Chairs: [email protected], [email protected], [email protected], [email protected],

To those locally-elected state officials who represent the citizens of Massachusetts, and WHO ACT IN OUR NAME, and to those citizens who share this interest I ask you to please support Rep. Marty Walz's bill (below) which will:
1. Allow eminent domain only for public uses and keep land in public ownership.
2. Protect all property, particularly public property ­ the BRA takes from the City and SELLS to private developers.
3. The Joint Committee on the Judiciary will hold a public hearing on Tuesday December 4, 2007 at 1:00 in the State House, Room A2, on land issues including eminent domain legislation.

H 1770 (Walz) "An act relative to eminent domain takings."
co-sponsors Martha M. Walz, James B. Eldridge, Matthew C. Patrick, Denise Provost, Christine E. Canavan, James R. Miceli

SECTION 1. Chapter 79 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by inserting after section 1 the following new section:

Section 1A. The taking of real estate or of any interest therein by right of eminent domain under this chapter or chapter 80A shall be effected only when necessary for the possession, occupation, and enjoyment of land by the public at large and shall not be effected for the purpose of commercial, private economic development, or any private use of the property. Property shall not be taken from one owner and transferred to another on the grounds that the public will benefit from a more profitable use. Whenever an attempt is made to take property for a use alleged to be public, the question whether the contemplated use is truly public shall be a judicial question and determined as such without regard to any legislative assertion that the use is public.

for more info- go to:
cityofboston.gov/citycouncil/CouncillorsCorner/CouncillorsCorner_Arroyo.asp
boston.com/news/local/articles/2007/05/15/city_halls_garage_sale
bostonreb.com/blog/2007/02/28/is-city-pulling-one-over-on-taxpayers
bostonseaport.com/SAND/Archive/050624eminent.html

=====

from the head of ABN, Association of Boston Neighborhoods
www.abnboston.org

Shirley Kressel
27 Hereford Street, Boston, MA 02115
617-421-0835 [email protected]

December 4, 2007

Testimony before the Joint Committee on the Judiciary

I am testifying in strong support of Bill H 1770, sponsored by Rep. Martha Walz. It provides complete protection of all property, public and private, from private-benefit eminent domain takings.


The nation's founders feared "the despotic power" of a new federal government over property rights. In the fifth amendment of the US constitution, they wrote: "nor shall private property be taken for public use without just compensation." No thought was given to taking for other than public use. It was inconceivable.

However, the meaning of "public use," designating schools, parks, libraries, military bases, highways, etc., changed during the urban renewal era, when cities expanded the notion to include "a public purpose" and even "public benefit." Eliminating “blight” (i.e., demolishing poor neighborhoods and driving out its residents) was itself considered a proper public purpose. Then, replacing these neighborhoods with more profitable uses and wealthier people became the public purpose or benefit.

The Supreme Court legitimized this conception with its 1954 Berman vs Parker urban renewal ruling, setting off the widespread urban displacement of the 1960s and 1970s. The people victimized were invariably poor and/or black renters, and their landlords, whose property was taken cheaply. A former urban design director of the Boston Redevelopment Authority once explained, in a Harvard lecture, that urban renewal reflected America’s World War II-envy; having missed out on the devastation of enemy bombings, this was the way American real estate interests and politicians would get their clean slate for massive construction projects.

The bitterest irony is that this use of eminent domain did not heal the economies of post-war cities, as is still often mistakenly claimed. It was used to destroy huge areas of valuable housing stock, creating the roots of the current housing shortage and depriving us of historic buildings and districts that would now be worth billions of dollars. In his 1964 MIT-published book, The Federal Bulldozer, conservative economist Martin Anderson documented the enormous waste of public subsidy money and loss of tax revenues by federal, state and local governments, as vast previously tax-paying acreages of cleared urban land across the nation lay fallow for years, often for decades – and indeed, many acres still lie fallow in Boston’s urban renewal areas, weed-filled lots with chain-link fence where taxable property and tax-paying working families were needlessly eliminated in the name of economic development.

One of the most notorious and mis-guided urban-renewal decisions was the 1981 Poletown decision, in which the Michigan Supreme Court allowed the City of Detroit to uproot some 4,200 people in order to make way for a General Motors plant. In the end, this destruction yielded no net gain for Detroit. GM fell 3,500 short of its promise to create 6,500 new jobs, more people were displaced than employed, and the sweetheart deal cost taxpayers more than $300 million in federal, state, and local subsidies for GM. In a final irony, in 2004, the Michigan Supreme Court overturned Poletown -- just after the Connecticut Supreme Court had relied on that precedent to uphold economic development takings in the case of Kelo v. City of New London, June 23, 2005.

Thanks to Herbert Gans’s book, The Urban Villagers, everyone knows about the destruction of Boston’s West End in 1958, to the financial benefit of a politically connected developer. Archives and artifacts of this rueful story have been carefully tended by a few scattered aging survivors and are now viewable in their West End Museum, which got a display room in the last of the redevelopment buildings, finally built in 1997. Of 7,500 residents driven out of their homes by the urban renewal program (which had been strictly required by original statute to re-house every displaced person), about 25 have been able to return to the West End to occupy a few of the affordable units. Photos of the buildings before demolition show a neighborhood exactly like the historic North End, Beacon Hill, Back Bay, and South End – which are now the some of most valuable real estate in the country, and essential to our tourist economy.

The wholesale disaster of urban renewal inspired Jane Jacobs to write The Death and Life of Great American Cities, a 1960s eulogy for lost neighborhoods. It was also a warning against unconstrained government/corporate power over community development.

Still, "public purpose" and "public benefit" takings have continued and broadened, as local governments have come to claim all types of property on behalf of private businesses -- to put the land to better economic use. Of course, there is always theoretically a “better” use for any property; but the better user can simply buy it from the owner, not have it taken for him. There is no more evidence today than there was in 1964 that city-building by private-use eminent domain is more economically effective than by the workings of ordinary land markets. (Note that Faneuil Hall/Quincy Market was not an urban renewal project, and no eminent domain was involved.)

Nor does such taking meet with standards of fairness on which this country prides itself. In eminent domain for private gain, the advantage is held by corporate powers and government officials. Small property owners can rarely afford legal fees to protect their homes and businesses.

If private-use eminent domain is not an effective economic tool, nor a moral social contract, why allow it?

There is no justification for private-use eminent domain. This is America; we boast of our free-market capitalism and try to export it to all the world. If a developer or corporation wants land, they have a capitalist option: Buy it at fair market value, just as they’d want to sell their own property. Why should the government buy it for them forcibly? It defeats the competitive market, tilting the level playing field among developers, as it robs helpless owners of their assets and homes.

As to public nuisances, neglected properties, etc., private-use eminent domain is the wrong weapon; zoning and building code enforcement and tax foreclosure (and sometimes some financial assistance to strapped owners) are the proper remedies; if whole areas are in trouble, comprehensive city planning is needed, to understand and treat the illness, not just the symptoms. The taking power of the government should be exercised only to provide for public uses, as originally conceived.

The Kelo decision did not change anything; it simply confirmed the status quo. But the Supreme Court (probably sensing the potential for profound damage) explicitly encouraged state legislatures to enact their own protections. This is what you should do for your constituents.

Think about your own home or business -- the piece of land you worked for and cherish. Think how you would want this law to read if GM decided your property should be theirs and you received a taking notice in the mail from the government, with an offer they decided was fair.

Then vote for this Bill -- and enact an equivalent constitutional amendment at the earliest opportunity to avoid future legislative supercedes.