Thursday, July 27, 2006
I've been reading James J. Kelly's 'We Shall Not Be Moved': Urban Communities, Eminent Domain and the Socioeconomics of Just Compensation. (Ben's post on Kelly's "Urban Communities, Eminent Domain, and Socioeconomics of Just Compensation" here.)
Here is Kelly's abstract:
If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of “public use” and “just compensation” as limitations on eminent domain. In the context of urban redevelopment, the theory supports greater resident autonomy in the compulsory assembly of residential land to subsidize and induce private economic development. The article’s second part articulates two legislative reforms that protect residents from unjustified, irreparable harm without depriving urban redevelopment of eminent domain’s essential efficacy in coordinating investment.
Specifically, homeowners should not be subject to eminent domain pursuant to a redevelopment plan until the majority of them have approved the plan. To further solidify resident ownership of redevelopment, the right to continued residency in the community should be protected by amending relocation laws to guarantee an alienable entitlement to be offered replacement housing in the redeveloped district area. Together, these two legislative reforms express a more nuanced balance of property and liability rules that will facilitate a more productive interface between community residents and redevelopment officials.
So Kelly proposes two legislative solutions: first, that there be no relocation of a community of homes without consent of a majority of homeowners and second that when relocation occurs, there entire community is relocated elsewhere. All interesting proposals and worthy of consideration. There's a lot going on in his paper, which I highly recommend.
I wonder if there is a possibility of a judicial recognition of the importance of staying in one's house--which might build on the understanding that homes are different. Part of this derrives from Ben Barros' work; other parts from contract remedies: we continue to recognize a right of specific performance in sales for homes, but the right of specific performance for commerical land is breaking down.
Alfred L. Brophy
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