- - Wednesday, July 29, 2015

When governments regulate private property, there is always a risk of abuse and corruption.

When courts try to eliminate such governmental abuses, there is always the risk of judges creating clumsy, ill-fitting rules that make effective, publicly interested government impossible. There is no perfect way to eliminate either risk: The choice is always a matter of selecting the lesser of two evils.

Federal courts’ enforcement of federal constitutional doctrines to limit state and local governments’ power over land, however, is strong medicine, often more dangerous than the disease it purports to cure. When it comes to curbing abusive use of zoning and eminent domain, the best rule of thumb is to leave the solution to the states.

There is no doubt that state and local governments have, at best, a mixed record when it comes to controlling land. Critics who call for courts to curb governmental power frequently cite Poletown, the Detroit neighborhood condemned by the City of Detroit in 1981 to make room for a General Motors factory. Thousands of residents were displaced and churches and stores destroyed to cajole GM into creating 6,000 factory jobs that never materialized. More generally, there is always the risk that, due to inattentive voters, democratic processes will fail to protect private property from well-connected insiders who exploit public power for private gain.

But state and local political processes, while imperfect, also contain the resources to curb such abuses. Poletown is now a byword for eminent domain abuse. The Michigan Supreme Court, elected by Michigan voters, construed the state constitution to limit the use of eminent domain for economic development. Voters also amended their constitution in 2004 to impose even more stringent limits, and the Michigan legislature enacted statutory protections like awarding condemnees attorneys’ fees and requiring high evidentiary standards before land can be condemned to eliminate purported blight.

By contrast, the federal constitution is almost impossible to amend, and federal judges almost impossible to replace. If the federal judiciary imposes ham-handed, one-size-fits-all constitutional doctrines on the nation that bar local governments from abating nuisances or reassembling overly fragmented land, then the error cannot be easily corrected. Such erroneous federal doctrines not only endanger the public welfare but, ironically, can destroy rights to private property.

Consider, for example, the City of Detroit’s nuisance abatement program. Detroit is plagued by thousands of derelict structures owned by absentee landowners that bring down the property values of neighboring lots. Identifying these owners and abating these nuisances through conventional actions can be extraordinarily expensive and time-consuming, condemning Detroit homeowners to endure life next door to rat-infested, crime-harboring wrecks. The Detroit legislature has endowed the Detroit Land Bank Authority and Detroit Blight Authority with powers to expedite the foreclosure of nuisance liens and tax liens, transferring title rapidly from negligent owners to the government so that derelict structures can be demolished, land can be cleared, and parcels re-used for purposes like community gardens, attuned to the wishes of the neighbors.

If construed in ways urged by eminent domain’s strongest critics like Professor Ilya Somin, federal constitutional doctrine could impede such efforts to protect property owners from neighboring nuisances. Professor Somin, for instance, has argued that federal constitutional law prohibits the government from using eminent domain to transfer land from one private party to another. But often the only viable purchaser of a vacant lot in a declining city will be the lot’s next-door neighbor. If Detroit’s land bank facilitates a transfer of an empty, weed-choked, and litter-filled lot from a private bank that acquired it after foreclosure but neglected to maintain the lot to a next-door neighbor who will keep it clean, would Somin’s version of constitutional law strike down the transfer as unconstitutional? It is hard to see how to square Professor Somin’s stringent test for “public use” with such a transfer but it is equally hard to see how such a doctrine really protects private property. To the contrary, such draconian, wooden proposals endanger private property by depriving homeowners in low-income neighborhoods of the tools they need to protect themselves from nuisances.

If the U.S. Constitution’s plain text and clear traditions required such rigid rules, then one might accept them with a sigh of resignation as the necessary price for rule of law. But the Constitution’s “public use” clause is so ambiguous that the case for stringent federal limits on local eminent domain and police powers is really just a matter of policy. There is no good policy-based reason for so aggressively centralizing land-use policy in the federal courts. The state legislatures and state constitutional amendment processes are more than equal to the task of protecting private property from both the risks of public abuse and private negligence.

Professor Hills has been a member of the law faculty at NYU Law School since 2006 and has previously taught at Michigan, Yale, Harvard, Stanford, and Columbia Law Schools.

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