Fascinating story in the Globe today:
[Mayor Marty Walsh's] administration is seeking state approval to extend 15 of the city’s 18 urban renewal districts for another decade, allowing the BRA [Boston Redevelopment Authority] to use eminent domain powers, tax breaks, and other tools to shape development…. [I]t will seek to preserve urban renewal powers in 15 areas stretching from Charlestown to the Fenway, and to parts of Roxbury and Dorchester. Overall, the districts cover about 3,000 acres, or about 10 percent of the city.
Now, why is this important? After all, you say, doesn’t the city already have the power to exercise eminent domain, offer tax breaks, etc.? Well, yes and no. I don’t claim to know all the ins and outs of these matters, but I do know something about the eminent domain piece.
As you probably know, both the state and federal constitutions permit government to take private property by eminent domain, as long as the taking is accomplished for “public use.” In the (in)famous 2005 decision of Kelo v. New London, the US Supreme Court decided that the US Constitution does not prevent a city from taking private property, even if that property is in good condition (i.e., not “blighted”), not because it needs the property for a road or a post office or some other traditional “public use,” but simply because it thinks that a different private owner would make more economically beneficial use of the property – a so-called “economic development taking.” There has of course been a lot of fallout from Kelo, including several posts here at BMG. You can give yourself a refresher here, here, here, and here.
For present purposes, the important thing to realize is that, unlike the US Supreme Court, the Massachusetts Supreme Judicial Court has never authorized a pure “economic development taking” under the Massachusetts Constitution. As I explained a while ago,
at least in Massachusetts, the law has long been that (to quote a 1955 Opinion of the Justices) “the expectation that adjacent areas and the city as a whole will benefit through the increase of taxable property and of values [is only an] indirect public benefit [that] has never been deemed to render a project one for a public purpose.” Most Massachusetts cases upholding transfers of seized property to a private entity have noted that the seizure was undertaken in the course of “urban renewal,” or some other government program designed to remedy “blighted,” “decadent,” or “substandard” conditions.
As far as I know, Massachusetts courts have never held that a taking is permissible under the state Constitution solely for “economic development” purposes – urban renewal, slum clearance, blight removal, or some similar purpose was always part of it.
Which brings us to today’s news. An “urban renewal district” is a marvelous tool that governments came up with decades ago in order to get around pesky constitutional restrictions on their ability to seize private property for economic development purposes (to be fair, they serve other purposes as well). Basically, the documents creating these districts declare that an entire area of a city (usually many acres at a time) is full of “blighted,” “decadent,” and/or “substandard” conditions, or words to that effect, and that getting rid of these dreadful conditions is a public purpose sufficient to justify the use of eminent domain. As long as a parcel of property has the misfortune to sit within one of these districts, it is subject to seizure, regardless of the actual condition of that parcel. And the kicker is that these districts typically have an extremely long shelf-life – 40 years, for example. To my knowledge, Massachusetts courts have generally upheld takings within “urban renewal” districts on the basis of the findings in the urban renewal plan, regardless of the actual condition of the property being taken or the presence of a more traditional “public use.”
So why is this in the news now?
Most of those districts are set to expire in April, but the BRA will seek a yearlong reprieve to solicit public comment about how its priorities for those areas should change. Then, it will seek state approval to extend its urban renewal powers for another decade.
Aha. In other words, come April, the city will no longer be able to justify the exercise of eminent domain simply by pointing to a decades-old document that in many cases describes area-wide conditions that have long since ceased to exist. Instead, it will have to supply a genuine “public purpose” parcel by parcel, every time it wants to exercise eminent domain. How inconvenient that will be.
To be fair, the city recognizes that, in the past, it has badly abused its urban renewal powers.
Newly appointed BRA director Brian Golden acknowledged Tuesday that the authority has abused those powers in the past — by bulldozing whole neighborhoods in the 1950s and ’60s and more recently by being less than forthcoming about its financial dealings with developers and other parties.
But Golden pledged that the BRA will use urban renewal powers more sparingly in coming years to build moderately priced housing and promote business growth in neighborhoods. He also said citizens will have more input on zoning decisions and the use of public property.
“We will show people that we are a people’s BRA, not just a developers’ BRA,” Golden said in a meeting with reporters. “We will show them that with our deeds, not just our words.”
Maybe so. If that’s the case, though, then I have another idea. Maybe, instead of extending blanket “urban renewal” powers that are at least subject to the possibility of abuse, the city should propose a new document that spells out the “more sparing” public purposes to which Golden now claims the BRA will limit itself when exercising eminent domain, and also spells out exactly how “citizens will have more input.” That way, we can have a full and open public debate about what those public purposes ought to be.
Eminent domain is among the government’s most intrusive powers. It can be used very well and very successfully; it can also be used very badly. Proceed with caution.