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Urban redevelopment has become a critical challenge for municipalities. Whether through urban renewal plans or other government programs, communities are attempting to address deteriorating neighborhoods and fiscal distress. The key to urban redevelopment is the efficient assemblage of land, which can only be assured by the exercise of eminent domain. Any narrowing of eminent domain’s application will frustrate redevelopment efforts and contribute to urban decline. Formerly vibrant communities have been abandoned by manufacturers, possess aging and declining populations, have boundaries crisscrossed by urban waterways, interstates, electrical transmission and railroad lines, and have obsolete residential lots with limited yards and driveways that dangerously access major streets. Urban residents and their elected officials should not be criticized but applauded for having the foresight to address these problems. Urban redevelopment improves the target area and creates economic benefits through jobs and tax revenues. However, absent assurance of land assemblage through eminent domain, “holdouts” would prevent the accomplishment of community goals. A Boston College Law Review article on the Dudley Street Neighborhood Initiative in Boston observed that given the reality of holdouts, eminent domain “would be the only way to assure that [the developer] obtained the land required to implement its redevelopment plan in a comprehensive fashion.” Robert Dreher of Georgetown Environmental Law and Policy Institute notes that each holdout effectively becomes a monopolist, dominating access to property needed to complete the project and demanding exorbitant prices; moreover, subjective values may lead holdouts to refuse to sell at any price, potentially thwarting the public purpose. Add to this the anti-eminent domain effort which, writes Wendell Pritchett in Yale Law and Policy Review, “has increased the cost of condemnation to specific developers and delayed the process in several cases.” These costs and delays now seem to accompany every redevelopment effort. The Norwood saga Norwood, Ohio, population 21,000, has been struggling to emerge from the shadow of a General Motors plant closing in the 1980s. It is trying to evolve to a retail/office tax base; it has had a successful history of urban renewal projects including the redevelopment of an abandoned manufacturing plant and of a deteriorating residential neighborhood. The current Norwood eminent domain case involves a neighborhood of 10 acres that had been severed by an interstate highway and encroached upon by non-compatible commercial uses, resulting in ad hoc demolition or conversion of homes. Despite public support for the urban renewal designation-65 out of 66 homeowners voluntarily contracted to sell-there still are five holdouts (one homeowner and four investors). Without eminent domain, the 65 willing homeowners would be prevented from escaping a deteriorating neighborhood, and the community would be deprived of the economic and land use benefits of a $100 million planned mixed-use project. Legal principles fostering urban redevelopment need to be strengthened, not weakened. Local authorities, uniformly reluctant to use eminent domain, should be given broad deference in determining the basis for proceeding with condemnation in accordance with state laws. The U.S. Supreme Court in Hawaii Housing Authority v. Midkiff emphasized judicial deference to local legislatures in takings cases, noting that legislatures are best able to assess local public purposes: “[W]here the exercise of the eminent domain power is rationally related to a conceivable public purpose, [we have] never held a compensated taking to be proscribed by the Public Use Clause.” Contrary to this proposition is the recent Hathcock decision (overturning Poletown), in which the Michigan Supreme Court gave no deference to local condemnation initiatives-acting pursuant to statutory purposes-and invalidated a compensable taking. Opponents of takings would limit its use to slum clearance. But it is inconsistent to equate blight with common law nuisance under a bright-line test. The Supreme Court recognized in Lucas that if a land use condition is so noxious so as to be a nuisance, it would be subject to a noncompensatory taking. Yet compensation is paid in condemnation cases; therefore the blight standard must be less than the one for slum clearance. Courts are well served to defer to local legislatures for determination of the standards for blight removal or other redevelopment programs. Diminishing the eminent domain power would deprive municipalities of their most effective tool for urban redevelopment. The constitutional protection afforded a holdout is not the right to veto legitimate state action but the right to just compensation. Courts should defer to expansive public-use determinations. Richard B. Tranter, a partner at Cincinnati’s Dinsmore & Shohl, practices zoning and development law. He represents a developer in the Norwood case.

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