Putting Plans to Work
focus on spatial relationships of buildings,
streets, and public spaces that make up the
urban fabric, can make communities function better physically and make urban life
more enjoyable. Design review, if properly
structured and based on meaningful standards and guidelines, can be an effective
means for communities to produce design
outcomes that achieve a balance between
planning objectives and market constraints.
Notes
1 Survey by Brenda Case Lightner, cited in Brenda Case
Scheer and Wolfgang F. E. Preiser, “Introduction,” in
Design Review: Challenging Urban Aesthetic Control
(New York: Chapman and Hall, 1994), 2.
2 Richard Tseng-yu Lai, Law in Urban Design and Planning (New York: Van Nostrand Reinhold, 1988), 1.
3 The term design review, as used here, means “urban
design review.” The legal principles and some of the
implementation concepts in this brief are adapted
from Brian W. Blaesser, Discretionary Land Use
Controls: Avoiding Invitations to Abuse of Discretion
(Eagan, Minn.: Thomson-West, 2007).
4 Dillon’s Rule is named after Judge John F. Dillon, a
nineteenth-century authority on municipal law.
5 Anderson v. City of Issaquah, 851 P.2d 744 (Div. 1
1993), citing City of Issaquah Municipal Code (IMC)
16.16.060 (D) (1)–(6).
6 Ibid., 16.16.060 (B) (1)–(3).
7 James L. Bross, “Taking Design Review beyond
the Beauty Part,” Environmental Law 9 (1979):
211, 226–227, quoting John W. Wade, Architecture,
Problems, and Purposes (New York: John Wiley,
1977): “[T]eachers of architecture ‘respond to the
“Gestalt,” the perceived totality of the project being
presented. . . . [T]here is considerable flexibility in the
weighting of critical values applied. . . .’”
8 Diller and Fisher Company, Inc. v. Architectural
Review Board, 587 A.2d 674, 678 (N.J. 1990).
9 Hankins v. Rockleigh, 150 A.2d 63 (N.J. 1959).
10 Duany Plater-Zyberk & Co., The Lexicon of the New
Urbanism (Version 3.2: 2002), A5; for more on the
new urbanism, see the Web site for the Congress of
the New Urbanism at cnu.org/.
11 1990 Kentucky Acts, chap. 479, §§ 2 and 3.
FOCUS ON
Eminent domain
Dwight H. Merriam
325
granted rights to the use of land but continued to exercise eminent domain over it. It
was not until the Magna Carta, in 1215, that
compensation was required before property
could be taken.2
Given the fundamental nature of eminent
domain, the U.S. Constitution does not so
much authorize the power as limit its use.
The Fifth Amendment provides that private
property cannot be taken “for public use,
without just compensation.” This clause was
intended to “bar Government from forcing
some people alone to bear public burdens
which, in all fairness and justice, should be
borne by the public as a whole.”3
Impacts of the Kelo case
The takings clause of the Fifth Amendment,
which was extended to the actions of state
and local government by the application of
the due process clause,4 requires that private
property may be taken only for a public use
and that just compensation must be paid.5
The interpretation of those two terms—public
use and just compensation—has spawned
much litigation, including the provocative
split decision of the U.S. Supreme Court in
Kelo v. New London—which, in 2005, upheld
the right of the city of New London, Connecticut, to take private properties for private
economic redevelopment.6
The definition of public use was central to
the Kelo case. Even though a private developer would ultimately receive the property,
the Court carefully weighed other factors in
the case, including the following:
• The city imposed restrictions on the
future use of the property to ensure that
it remained a public use.
• The city was committed to a carefully
thought-out plan that was in the public
interest.
• The benefit to the private developer was
incidental to the public benefit.
Eminent domain is the power of federal,
state, or local government to appropriate
private property for public use.1 It connotes
coercion because it is often the last resort
when a voluntary purchase at a reasonable
price cannot be negotiated.
Had one or more of these three factors
leaned in the other direction, New London
might have lost. In structuring redevelopment plans that involve the use of eminent
domain, it is essential for planners to apply
the requirements outlined in Kelo.
The power to condemn private property
for public use has been inherent in English
law since the feudal era, when the crown
For eminent domain to be permitted, many
state laws require a finding that the property, or the area surrounding it, is blighted.7
Reprinted with
permission of the
International
City/County
Management
Association, 777
North Capitol
Street,
NE, Suite 500,
Washington, DC
20002. All rights
reserved.
326
Putting Plans to Work
Figure 6–16 The
controversial Kelo
decision upheld the
condemnation of this
single-family dwelling to
make way for a large
economic development
project.
Source: Dwight H. Merriam
Elimination of blight is a public purpose, and
thus the resulting redevelopment is a public
use. Planners have the skills to help decision
makers determine whether a property or an
area is blighted.
The Kelo ruling reiterated what the Court
had held in Hawaii Housing Authority v.
Midkiff two decades before: that the probability of success in the redevelopment is
not required.8 It is enough that the government could rationally believe that the taking
would benefit the public, even if the results
ultimately contradict that belief. Finally, the
Kelo decision stressed the need for legislative decision making. Allowing an administrative official to make the final decision about
the use of eminent domain is less defensible,
especially at the local level, than assigning
the decision to the legislative body.
Most knowledgeable commentators—
conservative and liberal—agree that the Kelo
decision merely restated existing law dating
back half a century and did not create any
new precedent. However, the decision did galvanize public interest in a number of issues:
the tremendous power inherent in eminent
domain, its effectiveness in revitalizing dying
communities, the potential for egregious misuse by power brokers, and the risk of running
roughshod over disenfranchised owners and
tenants (see sidebar). Kelo sparked efforts at
the federal, state, and local levels to change
the law. The Court invited this reaction: “We
emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the police power.”9
Kelo addressed only the U.S. Constitution,
but there are fifty state constitutions, and
Equity and just compensation
Just compensation is usually defined as fair-market value: what a willing buyer would
pay a willing seller when neither is under compulsion to buy or sell. Fair-market value
does not reflect the tendency of people to overvalue their property, fails to take into
account subjective and sentimental value (“This was the house my grandfather built
with his own hands”), and ignores the emotional toll of moving to a new neighborhood
and forging new connections and relationships. Tenants in rundown buildings—the kinds
of properties that the government takes first when it implements renewal plans—have
the fewest resources and almost always get short shrift under current laws. Equity
and just compensation are controversial issues that have yet to be fully resolved at
any level of government. Planners may well find themselves serving as advocates for
households whose properties are the object of eminent domain proceedings.
Putting Plans to Work
what is legal under the federal constitution
may be illegal under a state constitution,
and vice versa. After Kelo, courts in Oklahoma and Ohio interpreted their state constitutions to have greater limitations than
the federal constitution, as had four other
state courts beforehand.
Statutes and executive orders can also
change the law. Aligning himself with
property-rights advocates, President George
W. Bush issued an administrative regulation
on June 23, 2006, that ostensibly limited
the federal government’s power of eminent
domain. Thirty states have enacted constitutional amendments or statutory changes
limiting the reach of the Kelo decision.10 Some
states, such as Arizona, have swung far to the
right, adding new limitations on regulatory
takings as well. Numerous local governments
have also limited the use of eminent domain
by legislative enactment and administrative
rule. Many of these changes have mimicked
others, and many terms have been left to
inevitable litigation. Ultimately, a number of
these laws will prove difficult to implement
and will have to be amended. Planners can
help guide this second round of legislation to
a middle ground.11
Land readjustment
The focus of the eminent domain debate in
coming years will likely be on three areas:
constitutional amendments, legislation, and
regulation. Planners have much to offer in
each area, but need to be wary: in words
that are often attributed to Mark Twain but
that are probably from an 1866 decision by
Judge Gideon J. Tucker, “No man’s life, liberty, or property is safe while the legislature
is in session.”12
Voluntary exchange and eminent domain—
the two means currently employed to
assemble parcels for redevelopment—have
not proved optimal in terms of either
efficiency or equity. And in some instances,
neither has furthered economic development. The redevelopment area in Kelo, for
example, remains undeveloped eight years
after the taking and three years after the
U.S. Supreme Court’s decision upholding the
taking, arguably because of the lack of any
shared vision or consensus on the plan and
its implementation. Nowhere did the process
of assembling the land result in a meeting of
the minds.
Land readjustment, in which landowners
participate in a redevelopment rather than
simply having their property taken, offers
hope of cutting the Gordian knot created
by the public’s reaction to Kelo.13 In this
approach, many parcels are replatted or
assembled into a unified parcel, of which
the owners continue to own fractional
shares; alternatively, the owners may be
compensated for the value of the assembled
properties. In some countries, the local government covers the cost of new infrastructure for development by selling portions of
the land before returning the balance, or
shares, to the original landowners. Parcelby-parcel voluntary purchases and acquisition by eminent domain cannot offer the
increment of assemblage value in most
cases because the highest and best use
valuation of each parcel does not reflect the
value of the total assemblage. Land assembly can capture that, however, and distribute
that increment of additional value on a pro
rata basis to the individual parcel owners.
Land readjustment, in which landowners
participate in a redevelopment rather
than simply having their property taken,
offers hope of cutting the Gordian knot
created by the public’s reaction to Kelo.
Land readjustment, which is practiced in
Japan, Germany, Taiwan, the Netherlands,
and Israel, is not a new idea, even in the
United States. The practice emerged in
Japan during the late 1860s and was ultimately legalized under the City Planning
Act of 1919. In Japan, as long as two-thirds
of the area’s owners and tenants agree to
go forward cooperatively, land readjustment
can be implemented privately, without government involvement; this occurs about half
the time. In Germany, where land readjustment dates back over a century, the projects
are compulsory and are always government
controlled, although landowners and developers can initiate the process with government consent.
Interestingly, the roots of land readjustment
in the United States can be traced back as
far as 1791, when George Washington persuaded landowners to convey their property
to him, in trust, to develop the District of
Columbia in accordance with Pierre-Charles
327
328
Putting Plans to Work
Figure 6–17 In
Bangkok, land
readjustment—in which
an agreement is
negotiated to divide the
land into two parts, one
for the landowner and
one for the occupants—is
used as an alternative to
eviction.
Source: S. Angel and S.
Boonyabancha, Third
World Planning Review 10,
no. 2 (1988)
L’Enfant’s plan. Under the agreement, Washington had the authority to set aside for the
government, without cost, certain land that
would be used for roads, places of public
assembly, and other public purposes, and to
purchase additional land at $57 an acre for
government buildings. The balance of the
land was platted as building lots, and then
allocated to the federal government and the
original owners in pro rata shares.
Washington was able to assemble seventeen
large farms and two small hamlets to create
the District of Columbia. No money had to
be advanced, and the federal government’s
total outlay was $35,000 to acquire a tract
of 600 acres in the center of the city and
to pay for surveys of 10,136 building lots
for later use or sale. Planners today marvel
at the implementation of the L’Enfant plan
without realizing that it was accomplished
through land readjustment.
In several other instances, land readjustment has solved critical problems. A
premature subdivision, laid out long before
there was any real market for the lots,
was replatted at Ormond Beach in Oxnard,
California, from the original plat of 1906.14
Underused land in the Canal Square area of
Schenectady, New York, was assembled by
merchants, who joined together in 1973 to
redevelop the area. Obsolete land uses
have also been redeveloped effectively
through land readjustment. At the Farmer’s
Market district in downtown Dallas, for
example, thirty separate parcels were
assembled through a master development
agreement. The result was 10 million square
feet of office space, 1,500 hotel rooms,
400,000 square feet of retail uses, and
1,500 residential units—all without going to
the U.S. Supreme Court.
Neighborhood pooling or neighborhood
buyout—a form of land readjustment but
without downstream rights—has been used
as a land assembly tool in Atlanta, Dallas,
Houston, Phoenix, and metropolitan Washington, D.C., as well as in Jacksonville, Palm
Beach, Panama City, and Pompano Beach,
Florida. Under this arrangement, groups
of property owners form associations to
sell their land, at considerable profit, for
redevelopment.
Land readjustment is a concept whose time
has come. There is much to be learned from
how it has been practiced in the past, and
planners can assist state legislatures in
creating enabling legislation to allow it to be
used more extensively.15 Although California,
Florida, and Hawaii have considered proposals for enabling legislation, no local governments appear to have established formal
programs. Nonetheless, redevelopment
agencies have applied similar approaches to
redevelopment projects.
Notes
1 United States v. Carmack, 329 U.S. 230, 241–242
(1946).
2 Magna Carta (1297), “No man of what state or condition he be, shall be put out of his lands or tenements
nor taken, nor disinherited, nor put to death, without
he be brought to answer by due process of law,” 28
Edw. 3, c. 3.
3 Armstrong v. United States, 364 U.S. 40, 49 (1960).
4 Chicago B. & Q. R.R. v. City of Chicago, 166 U.S. 226,
233, 236–237 (1897).
5 Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112,
158–59 (1896).
6 Kelo v. City of New London, 545 U.S. 469 (2005).
Putting Plans to Work
7 A finding of blight was not required for the taking in
Kelo and was not an issue before the Court.
8 Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).
9 Kelo v. City of New London, at 19 of the slip opinion.
10 National Conference of State Legislatures, Eminent
Domain (2008), ncsl.org/programs/natres/
EMINDOMAIN.htm (accessed August 4, 2008).
11 The American Planning Association’s Policy Guide on
Public Redevelopment is worth consulting: see planning
.org/policyguides/redevelopment.htm (accessed August
4, 2008). Also available is a site that tracks eminent
domain legislation: planning.org/legislation/
eminentdomain (accessed August 4, 2008).
12 1 Tucker 248 (N.Y. Surr. 1866).
13 See Yu-Hung Hong and Barrie Needham, eds.,
Analyzing Land Readjustment: Economics, Law and
Collective Action (Cambridge, Mass.: Lincoln Institute
of Land Policy, 2007); Frank Schnidman, “Suburban Land Assembly,” in 1991 Zoning and Planning
Handbook 125 (New York: Clark Boardman, 1991),
125; Frank Schnidman and R. Lisle Baker, “Planning
for Platted Lands: Land Use Remedies for Lot Sales
Subdivisions,” Florida State University Law Review 11,
no. 3 (1983): 505–597; and Frank Schnidman, “Land
Readjustment,” Urban Land (February 1988): 2–6.
14 See City of Ormond Beach, Oxnard, California, “Minor
Plat Review Checklist,” ormondbeach.org/bc/sprc/
minorplat.pdf (accessed August 4, 2008).
15 Prof. Frank Schnidman of Florida Atlantic University
argues for the use of land readjustment in the
Norquist amicus brief he authored in the Kelo case:
see Florida Atlantic University, Center for Urban
and Environmental Solutions, “Norquist Amicus
Brief to the USSC in Kelo,” at cuesfau.org/cra/rdvlp_
resources/Legal/Kelo-Norquist%20Amicus%20Brief
.pdf (accessed August 4, 2008); see, generally,
Frank Schnidman, “Land Assembly by Assembling
People,” Zoning and Planning Law Report 30 (September 2007), cuesfau.org/cra/rdvlp_resources/
Land%20Assembly/ZPLR%20Land%20Assembly
%20article%20Sept.2007.pdf (accessed August 4,
2008).
FOCUS ON
The aftermath
of Oregon’s
Measure 37
Robert Stacey
The libertarian campaign to limit governmental regulation of land use reached
its national zenith in the 1990s. In cases
brought to the Supreme Court and in bills
brought to Congress, a coalition ranging
from the National Association of Homebuilders to the Club for Growth demanded
compensation for property owners who
experience a reduction in the market value
of their holdings as the result of a governmental regulation.
Their efforts failed. The Rehnquist Court did
not rewrite the Constitution, and Congress
declined to strip state and local governments of their fundamental powers to
balance competing interests in the use of
land and to shield the public from the overzealous pursuit of personal gain. However,
a number of states did enact limitations
on local governments’ regulatory power; in
2000, they were joined by Oregon, whose
voters approved Ballot Measure 7, a “pay
for lost value” amendment to the state’s
constitution.
According to a 1922 ruling by the
U.S. Supreme Court, government
regulation effects a taking—and requires
compensation—when it “goes too far,”
eliminating all reasonable economic use
of private property.
The Oregon Supreme Court tossed out
Measure 7 on procedural grounds in 2002.
But the unusual coalition of aggrieved rural
landowners and well-heeled ideologues that
had campaigned for Measure 7 came roaring
back in 2004, with a “pay or waive regulations” version, Ballot Measure 37, which
passed with surprisingly strong support in
a state known for comprehensive land use
planning. In the fall of 2006, voters in four
Western states considered similar measures,
all but one of which failed. Nevertheless,
the idea of limiting “regulatory takings”
clearly continues to exert appeal. According to a 1922 ruling by the U.S. Supreme
Court (Pennsylvania Coal Co. v. Mahon, 260
U.S. 393), government regulation effects a
taking—and requires compensation—when
it “goes too far,” eliminating all reasonable economic use of private property. In
Measure 37 and its progeny, however, that
constitutional standard is abandoned, and
any reduction in value becomes cause for
compensation or waiver.
The fifteen-word caption that appeared
on the ballot captured the visceral appeal
of Measure 37’s “pay or waive” concept:
“GOVERNMENT MUST PAY OWNERS, OR
FORGO ENFORCEMENT, WHEN CERTAIN
LAND USE RESTRICTIONS REDUCE PROPERTY VALUE.” Polling at the outset of the
campaign showed that 59 percent of voters
supported the idea; eight months later, the
329