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Town-Gown Conflicts over Property Use and Eminent Domain:

Notre Dame property law professor Nicole Garnett has an interesting post on the town-gown conflict over neighborhood redevelopment in her home base of South Bend, Indiana. Unlike Columbia, Notre Dame (as far as I know) is not threatening to use eminent domain. Nonetheless, the dispute illustrates the ways in which efforts by universities to transform local neighborhoods (as opposed to merely acquire individual property tracts) often stem from the self-interest of the academic community rather than from efforts to promote education and research, the major public goods provided by universities. In this case, the university people would like to turn the neighborhood into a "new-urbanist enclave," while the "mostly working class and African-American" townies tend to be opposed.

I like new urbanist enclaves as much as the next law professor and I have no objection to Notre Dame's plan as described by Nicole. Maybe that's why I'm an academic, not a townie! But I see no reason why university efforts to cater to the neighborhood lifestyle preferences of academics and students should be supported through the use of eminent domain. The case for eminent domain is especially weak in situations where university "elites" (to borrow Nicole's terminology) are trying to impose their preferences at the expense of communities far less affluent than they are themselves. Whatever the merits of using government power to redistribute wealth from rich to poor, I see no reason to support Robin Hood in Reverse condemnations.

To be sure, the opportunity to live in a "new urbanist enclave" may attract some professors to Notre Dame who might otherwise hesitate to take up residence in South Bend, and for that reason promote research and/or education. However, an academic good enough to be hired by Notre Dame is also likely to have offers elsewhere, and there is no reason to believe that the overall level of public good provision by universities will diminish if he goes to another school. It is also unlikely that any significant number of potential academics will choose nonacademic careers merely because some schools are unable to reshape the neighbohoods around them to the would-be professors' liking.

Nobody (mail):
Ilya wrote:

I see no reason why university efforts to cater to the neighborhood lifestyle preferences of academics and students should be supported through the use of eminent domain.


It's a shame, then, that you don't sit on the city council of South Bend, Indiana. As it turns out, the people, through their elected representatives, DO see a reason. In this great democracy of ours, the people's will prevails. Luckily, the displaced residents of South Bend have an unassailable constitutional right to be justly compensated for their property. This is a marvelous country.
6.5.2006 11:21pm
Patrick Wright (mail):
Nobody,

Please do tell how the term "public use" limits the choices those elected representatives can make. Oddly, there are limits when the people's elected representatives, like sherriffs, seek to search a home. The homeowner can of course file a section 1983 claim, yet there is an exclusionary rule. Why is that? Why is it that the people's will as expressed through their elected represenative doesn't carry the day? What about speech codes at public universities? Those codes are often imposed by democratically elected regents. Why should the First Amendment be allowed to pervert the people's will in that context when in the property context the Fifth Amendment the people's will cannot be defeated? What is the point in having a constitution at all if the people's elected representatives are able to thwart it? Don't you realize that in defending Kelo in this manner you are really arguing that Marbury v Madison was wrongly decided?
6.5.2006 11:51pm
American Psikhushka (mail) (www):
Uhh, this is a constitutional republic, not a democracy. Nothing against the average person or voting, but direct democracies are vulnerable to manipulation by demagogues, degeneration into mob rule, abusing minorities, etc.

It's interesting how academic types who claim to be guided by reason, logic, and debate so quickly resort to violence to force their ideas on others, in this case the government performed violence of eminent domain. (Just an observation, nothing against Notre Dame or South Bend in particular. Although of course I disapprove of eminent domain in anything but the narrowest scope.)
6.6.2006 2:05am
David Eads (mail) (www):
A slightly off-topic observation that I'll bring back around to Kelo is that another question raised is of the other measures are officially or implicitly sanctioned to push forward the agendas of institutions, developers, and prospective buyers in these areas.

My personal experience has been largely negative -- riding my bike through a gleaming new community surrounding the University of Illinois Chicago, I was snatched by the police for an offhanded comment expressing my wish they'd show their badges when making arrests.

They roughed me up, put drugs on me, claimed they would leave me in an alley to be "raped by the animals" who lived nearby, called my dreadlocked riding buddy a nigger, etc, etc.

Ultimately, they let me and my friend go, but the incident was interesting because of some of the other things they said, along the lines that they (as hyper-aggressive police officer, willing to bend the rules a bit) were the reason we slept well at night, we shouldn't mess with police business, that they did the things they did for the public good and the new neighborhood.

While it was one incident, it was pretty fascinating and revealing precisely because of the officers (I think sincere) belief that their actions were focused on ensuring the public good in this quickly changing neighborhood.

Less dangerous or violent crime is something most people will rationally support, and perhaps remaking a neighborhood into an affluent new-urbanist enclave isn't the worst fate that could befall an area (though I strongly doubt the sustainability of neighborhoods that value extremely high levels of material wealth over creating safe middle-class neighborhoods). But it seems that limitations on eminent domain (like restrictions on police behavior) set limits on the acceptable means to achieve those goals.
6.6.2006 3:43am
DiversityHire:
In addition to education and research, I'd add culture as a major public good that flows from universities. However, for any of these benefits to accrue to the community, the university must be of the community and not just embeded therein. En-bubbling big ass research universities in quasi-utopian strip malls, uh I mean "new urbanist enclaves" —or donught-shaped greenbelts, does nothing but distance the academic-elite-wards-of-the-state from their taxpaying patrons.
6.6.2006 4:14am
Jeek:
I'd add culture as a major public good that flows from universities.

Remind me how this would justify the use of eminent domain? If the universities want to "create culture", seems to me they can do it through the normal market process, not through government power.

The working class, African-American community has a culture, too. How will the South Bend government be able to determine that the culture of the existing community has "less value" than the culture of the university, thus justifying the use of eminent domain?
6.6.2006 10:29am
FONToKNOW (mail):
Jeek, et al.,

Notre Dame is not asking the city of South Bend to use eminent domain to aid in their redevelopment efforts of the neighborhood directly south of the University. The University is already the dominant land owner in the neighborhood and has demonstrated a patience in acquiring land and slowly redeveloping it. In the next two years, the University will be selling a chunk of undevelopland to a private developer to create a mixed use "College Town" area. None of the land used for this project will taken via eminent domain, the University already owns the land. The University hopes that this development will create a tipping point whereby more professional families will want to move into the neighborhood and invest in property.

Yes gentrification is likely, but there is no desire on the part of the University to get the city of South Bend involved in taking private land and transferring it to the University or its agents.
6.6.2006 11:43am
Houston Lawyer:
Now I could get behind a university taking a neighborhood by eminent domain for building a football stadium. There is arguably a public good in that. But this is just taking from the poor and giving to the better off, just what Kelo intended.
6.6.2006 11:48am
Thinker:
Turning back to Kelo - let's remember - the University, of course, can do nothing by eminent domain. That's probably obvious to everyone, but the language in this thread is interesting.

So, a town government can say : Hey, this important employer-university (read pfizer) wants to develop this neighborhood (read New London) for its professors (read Pfizer executives).

on the basis of the horrific Kelo logic, a University's development programs are EVEN STRONGER than Kelo. Not only could they claim economic rewards, but academic and cultural enrichment.

As EV has said elsewhere (I paraphrase) no one has gotten rich or published arguing that the Supreme Court should have decided things differently.

The best point is htis: What leads to good plan? Is what is good for University expansion good for the community? Frankly, empirical evidence in college towns might give the answer: Yes! Unlike Pfizer or other short sited commercial enterprises, Universiies thrive on the quality of their atmosphere.

- Thinker

PS: I love this type of thing. My students love this type of thing. The irony is that the answers are so frustratingly elusive.
6.6.2006 12:03pm
David Sucher (mail) (www):
Does anyone have any specifics on ND's plans? i.e. what does it mean that ND is trying to foster a "new urbanist" neighborhood there? No, I happen to be extremely familair with New Urbanist thinking and support it. I am just at a slight loss to understand what ND is proposing to do.

The larger issue is that I am a strong believer in the importance of discussion of the built environment (to the obsessive point that I have a book/blog on it). So I believe that posts like this one and the one by Garnett are of critical importance and would gain a great deal if there was some physical basis to the discussion. In the case of Columbia, at least we had a start -- the University was attempting to acquire land.

Here, the only think I can get from Garnett's post is that 'ND would like to develop the area as a mixed-use "college town," with houses, townhouses and small businesses. The non-university-affiliated neighbors (who are mostly working class and African-American) are deeply skeptical. They worry about gentrification, and, more importantly, an influx of students into the neighborhood.'

Fine. But what is the area like now? And what does ND propose? What are the competing visions? It does not appear as if the competing visions differ physically but only that the existing residents are (naturally) concerned with change because newcomers will move in.

Anyway, it's not a big deal but I wish these discussions of land use issues and the law started on the ground, and then arose as we all added our own hot-air.
6.6.2006 12:23pm
Thinker:
No David! Don't start asking for actual facts!! That'll kill us.

Truthfully, I actually disagree with you on the starting point for a discussion like this. I've found that at a land use hearing, the well-developed developer will have wonderful renderings as to the environment. They might even be true.

The first question, to my mind, is WHO is making the decision and WHAT authority do they have! Once that's established, then find the LIMITS of their authority. Then, and only then, look at the changes to the built environment to determine if it mates good policy and a proper exercise of authority.

But ... the issue at hand has to be first: Who's making the decision.

All that being said, I'd very much like to see their plan as a sporting proposition. But I do not think it is the beginning of the inquiry.

Thoughts?

- Thinker
6.6.2006 12:45pm
David Sucher (mail) (www):
IRAC.

For the non-law school types that is the first thing they tell you on the first day of class:

Issue
Rule
Analysis
Conclusion

So in response to Thinker, I'd suggest that the Issue section of IRAC (and remember, I wasn't even vaguely close to Law Review, so I may have it all mixed-up) would do just fine even for a blog post as it presents the facts and the jurisdictional history.

Now, in the case of ND, is there even a dispute in a court or before a public body e.g. a Planning Commission? Or what? That's my question, of course. It sounds as if ND is urging zoning changes -- but no ordinance is yet before any official body -- and that the negative vibes from the existing residents come from informal meetings.
6.6.2006 1:20pm
Thinker:
David,

Law school was too long ago to remember the acronyms.:)

I searched away to see if I could find a story in controversey on this part. I kept coming up with a catholic nursing home to be rezoned. This didn't seem like a master-planning process - so I think it was the wrong story.

I was really responding more to the initial post - where the question was "I see no reason why university efforts to cater to the neighborhood lifestyle preferences of academics and students should be supported through the use of eminent domain." The smart aleck answer is - the writer may not see a reason, but the Supremes clearly did!!

If anyone sees anything along these lines, I'd be very curious. I had followed a few such disputes at Brown &Yale. It was fascinating stuff.

- Th
6.6.2006 2:37pm
Random Outcome:
Thinker:

I searched away to see if I could find a story in controversey on this part. I kept coming up with a catholic nursing home to be rezoned.

When I search on "Notre Dame Urban Renewal", I get a lot of hits about their attempt to salvage their former football coach, Urban Meyer. It is entirely possible here that ND is doing the noble thing and talking with townies about their development ideas and met with unexepcted concerns. I'm not from that area, so I wouldn't really know. But in any event, it seems like Kelo-related concerns for south bend are a bit premature.
6.6.2006 4:08pm
Thinker:
Let's be honest! This is all nice - but the football program is really much more serious! Wrong Blog of course!
6.6.2006 9:59pm
dick thompson (mail):
I wonder if the city of South Bend, once ND redevelops this area, will revalue the existing properties with tax increases so high that the people cannot afford to live in their homes and are thereby forced to move. That would be the equivalent of a virtual "eminent domain" finding IMNSHO. ND would get what it wanted, South Bend would get higher taxes and the African American community would get screwed.
6.6.2006 10:12pm