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The Michigan Supreme Court ruling this summer in Wayne
County v. Hathcock, which overturned the controversial
Poletown decision, has been widely celebrated. Wayne
County stands for the proposition that governments cannot
condemn land purely for economic development purposes. Implicit
in the delight over Poletown's demise is the belief
that governments were going too far in their use of eminent
domain. But now the opposite danger is looming: governments
are tying their hands behind their back by refusing to use
eminent domain even when it is constitutionally valid and
appropriate.
Even before the Hathcock decision local officials were
already renouncing eminent domain. Back in February, Detroit
Mayor Kwame Kilpatrick had foresworn the use of eminent domain
in his major far east neighborhood redevelopment project.
Similarly, George Jackson, head of the Detroit Economic Growth
Corporation and Matt Cullen, co-chair of the Detroit Riverfront
Conservancy, said earlier this summer that they did not plan
to use eminent domain for the city's sweeping riverfront renewal
plan.
Given the skittishness about using eminent domain that existed
even before the Hathcock ruling, the case could send
a terrible message to state and local authorities: eminent
domain is the third rail of municipal government-far too dangerous
to touch.
But eminent domain is an important government power. The framers
of our federal constitution carefully preserved the power
to condemn private property upon payment of just compensation.
Many state constitutions also safeguard this power. Even as
it cut back on eminent domain's reach, the State Supreme Court
said in Hathcock that "the state's authority to
condemn private property for the commonwealth" was a
"bedrock principle of our legal tradition."
Without eminent domain, Detroit's $500 million riverfront
restoration project could be permanently scarred by the Cemex
company's cement terminal silos smack in the middle of the
proposed RiverWalk. The city has been trying to buy the Cemex
company's riverfront site and relocate the silos. Two other
cement companies on the river have already agreed to move.
The city has offered to buy the Cemex site for its fair market
value plus Cemex's relocation costs, but Cemex is demanding
an additional $10 million.
This is exactly the sort of situation that eminent domain
was designed for: one holdout landowner seeking a windfall
profit on the sale of a crucial piece of property. But the
city has so far refused to play its eminent domain trump card.
Instead, if Cemex will not relocate its silos, the Detroit
Economic Growth Corporation has absurdly proposed to decorate
them with a mural. But why would Cemex agree to the paint
job? It's already holding the city hostage. The only other
option would be for the city to ante up Cemex's high price.
This is what happens when city officials are too cowed to
use eminent domain.
Eminent domain has been a vital ingredient in almost every
important civic renewal project in the country, such as Baltimore's
nationally lauded Inner Harbor redevelopment. Redevelopment
projects from Louisville, Kentucky, to San Diego, California,
have been able to use the condemnation power to reinvent derelict
waterfronts as new public spaces. In Michigan, Poletown
may have discredited eminent domain, but the power was critical
to Detroit's Fox Theater project, which has sparked millions
of dollars of downtown investment, and to Lansing's effort
to turn a polluted, abandoned manufacturing site into the
Oldsmobile Park Baseball Stadium, which attracts hundreds
of thousands of visitors a year.
In theory, the Hathcock ruling should not place new
restrictions on the ability of state or local governments
to bring private property into public ownership through condemnation.
Hathcock expressly limits only uses of eminent domain
that transfer property from one private owner to another.
But the opinion's language is harsh towards the practice generally
and sends government officials the wrong message: that they
must limit the use of the power to its absolute minimum.
Cities like Detroit have made mistakes in the past with eminent
domain. But governments should learn from prior mistakes,
not be paralyzed by them.
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