Tuesday, May 16, 2006

Eminent domain in “Law After Oil”

[This is the first in a occasional series called “Law After Oil,” in which I will explore what might happen to law if we were to run out of oil.]

   States across the nation this year clamped down –- with varying degrees of likely effectiveness –- on eminent domain by local governments.  The steps might be seen as the beginning of an era of a diminished governmental role in shaping urban land use.

   What would happen, however, if we ran out of oil?  Not simply an oil pinch, as in the 1970s, but a situation in which the world’s supply of oil shrunk so much that the average citizen could not fill up her gas tank and the average power plant could not run on oil or natural gas (and alternatives such as hydrogen and ethanol did not work)?  Such an event is not likely to occur any time soon, but the possibility is not so preposterous any more, considering both volatile world politics and uncertainty over reserves.

   Anti-suburbanists might have us believe that suburbanites would simply join hands and move “back to the city.”  The Chicago of 2010 might look like the Chicago of 1910 –- lots of tenements, streetcars, and pedestrians.  But how, precisely, could millions of people simply move “back to the city”?  Blocks that were apartment houses in 1910 are now parking lots and warehouses; these land uses cannot be transformed overnight.  And what about the land use around a close-in suburban rail stop?  A planner in 1910 would have expected that such land would be densely developed.  With the 20th century phenomena of the automobile, zoning, and NIMBY, however, land even quite close to suburban rail stops have become single-family houses.  Without oil, legions of citizens would be stranded in their exurban homes and pleading for close-in housing.  For the close-to-transit land to be transformed to dense transit-oriented development, the single-family houses would have to be converted to denser housing.  Many of the existing owners would be resistant and would hold out for a premium price.  How could the conversion work?  The most obvious solution would be for the government to use eminent domain to seize these houses and then sell them to developers for apartments.  The government would be acting as a 21st century Haussmann, who used eminent domain to rebuild Paris for the 19th century.  Would opponents of Kelo accept eminent domain in such a situation?   

http://lawprofessors.typepad.com/land_use/2006/05/eminent_domain_.html

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