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Do we need to use eminent domain to build roads?

Even scholars with a skeptical attitude towards eminent domain have generally accepted the idea that it is often needed to build roads; I have in fact endorsed this conventional wisdom myself (e.g. - in this article). An important recent paper by Florida State University economist Bruce Benson challenges the orthodox view. Benson shows that the supposed need for eminent domain is tied into the assumption that roads must be government-owned. In order to prevent roadbuilding projects from being blocked by "holdouts" (property owners who seek to hold the project hostage by demanding a massively disproportionate share of the proceeds in exchange for selling their rights), the government often resorts to eminent domain. As Benson shows, however, private road builders could more effectively use "secret assembly" techniques to get around this problem. By buying the property needed to build the road in "secret" (without telling sellers what it will be used for) builders can prevent potential holdouts from ever figuring out that there is a large assembly project to hold up in the first place. Obviously, the government usually cannot and should not operate in such secrecy when building roads with public funds. Benson also shows that there are other voluntary assembly techniques that private entrepreneurs could use more effectively than government.

The very idea of privately owned roads may seem radical and outlandish to some of our readers. So it is worth mentioning, as Benson describe in his article, that privately owned roads have a long history in both the United States and Europe, and that there are many privately owned roads in the US today, particularly in rural areas and in private planned communities. This part of Benson's article, by the way, is not especially original or controversial. Private ownership of roads is no more radical than private ownership of utilities, railroad lines, power lines, or other similar infrastructure.

Has Benson successfully demonstrated that the use of eminent domain for roadbuilding is completely unnecessary? I think not. Even with private ownership, secret assembly is more difficult to use in the case of roads than in the case of other building projects. To build a road, one has to buy up property in a continuous line from Point A to Point B. This makes it far more difficult to hide the builder's true intentions. What Benson has proven, in my view, is that roads can be built without the need for eminent domain in at least a substantial number of cases. Moreover, as he shows in the second half of the article, the use of condemnation to build roads (even those where it really is necessary) often imposes costs on property owners and society as a whole that may outweigh the benefits of the new road. The ongoing saga of Boston's "Big Dig" is an excellent reminder of the dangers inherent in government-controlled road construction. All of this justifies viewing roadbuilding condemnations with far greater skepticism than before, even if it is premature to conclude that such takings should be abolished completely.

And if the argument for using eminent domain is problematic even in the "easy" case of roads, it should be viewed with even greater skepticism in more difficult cases such as "blight" and "economic development" condemnations.

M (mail):
With regard to the "big dig", is your view that a privet builder would have done better (if so, what's your evidence for this? Lots of privetly built stuff turns out to be bad, too, after all) or that no privet investor would have built such a project (this seems plausible) and so it should not have been built (much less certain.) Not being from Boston I have no personal interest in the Big Dig (though it has obviously improved the city by getting rid of the awful freeway that was there) but am unsure what your point is here.
9.24.2006 8:17pm
Ilya Somin:
With regard to the "big dig", is your view that a privet builder would have done better ?

There is no way to know for sure, but I think that the answer is yes. Most of the problems with the "Big Dig" (massive cost overruns, interminable delays, "capture" by powerful interest groups), are far more likely to occur in cases where a building project is undertaken by politicians spending other people's money than by private investors risking their own. A private firm that routinely invested in boondoggles like the "Big Dig" would quickly go bankrupt.
9.24.2006 8:37pm
frankcross (mail):
Well, I've got to think that private enterprise underproduces road systems. The Eisenhower interstate highway system was an enormous economic boon. But it didn't arise privately.

Now, it seems fairly clear, given the economic waste of traffic congestion in major cities, that the government is also underproducing road systems. Maybe private roads will start popping up.
9.24.2006 8:52pm
Peter Wimsey:
I think you give Benson way to much credit. IMO, he hasn't "proven" that eminent domain isn't necessary to build roads in a specific number of cases - at best he has discussed a couple of hypothetical situations in which hyothetical rational actors might avoid the holdout problem. However, I find his analysis of this particular point extremely superficial - his hypos involving transactions with one or two individuals have little relationship to the realities of actually structuring a transaction involving hundreds of owners. More importantly (unless I missed this point), he doesn't seem to discuss zoning at all, which is going to throw a big wrench into the concept of secret assembly.

I don't particularly disagree with points concerning private ownership, operation, or management of roads, but I really think his analysis of roads built without eminent domain is severely lacking and is obviously written by someone with no real idea of how roads are actually built.
9.24.2006 9:38pm
K Bennight (mail):
Secret assembly, i.e., attempts to deceive prospective sellers, are not, in my view, immoral in the context of putting together tracts for large projects. But it hardly seems what we ought to set out as the standard way to proceed.

And as you point out, secret assembly is not likely to work well when building new roads. It is likely to work even less well when widening existing roads, with which I have a little experience. Landowners along the way often try to extract special concessions that, if granted, would immensely complicate road widening projects.

With the threat of eminent domain behind me, I have told lawyers for land owners, "we'll get to you when we get to you, and we'll get done when we get done." Road improvements sometimes take so long that businesses are unnecessarily injured, and that is regrettable. But allowing each landowner along the way to extract special concessions would not improve the efficiency of the project.
9.24.2006 10:10pm
Tom Holsinger (mail):
This is part of my day job, and was in private practice too. Timing and public safety are major issues here which the lead post overlooks. The eminent domain power is used to swiftly obtain property for public use while disputes over the value of the property taken can proceed at a more sedate pace. Public entities are under time pressure to complete projects and, for roads, public safety is an issue.

Public entities have the political equivalent of fiduciary duties to the taxpayers. This means that they must minimize expense in completing projects. I am familiar with the bidding process for school construction projects, roads, etc., and ensuing contract litigation. Speed is generally of the essence.

Litigation over roads also involves actions concerning hazardous conditions of public property, i.e., when road design and/or maintenance are alleged contributory causes to vehicle accidents. Decisions as to which projects to commence in what order are driven by, among other things, accident reports and vehicle use statistics.

When traffic volume rises quickly on a given route, and here I note that my court - Stanislaus County - has significant highway litigation which crosses my desk arising from population growth spilling out of the San Franciso Bay Area (we're just south of San Joaquin County), the California Department of Transportation has legal, financial and moral duties to quickly expand and improve state highways to deal with the increased traffic.

Mr. Somin's post in no way reflects the human and financial costs from otherwise avoidable vehicle accidents which his model would cause.

The eminent domain power is used by public entities to swiftly obtain property necessary for the public health and safety. This speed in obtaining property also reduces the cost to taxpayers for the ensuing construction projects.
9.24.2006 10:51pm
John McCall (mail):
If private companies can secretly plan to construct roads through arbitary locations, how do I maintain my reasonable expectation as a landowner that neighboring property won't suddenly become a major highway? In a public process, I can at least offer political input and demand compensation for the radical change in my property value; what device grants these protections under a system of secretive, private road construction?
9.24.2006 11:02pm
logicnazi (mail) (www):
Yes, I think Mr. McCall has a very compelling point here. If private building of roads became common people would take actions to protect themselves from roads being built immediatly next to their property. This would either take the form of county laws preventing it, or, if this wasn't availible public comment periods which would be hard to object to while scuttling the secret assembly process.

Moreover, requiring secret assembly imposes significant costs. Sure government road construction adds significant costs, though I think people largely underestimate much of the private sector waste, but so does private sector construction. If secret assembly becomes a common practice to build roads there will be a HUGE economic incentive to leak that information and very little way to prove it. Not to mention the difficulty this would have in combination with journalism secrecy laws. Some sizeable fraction of secret assembely attempts are going to be found out imposing significant cost.

I think it is very misleading to compare road construction with other secret assembly projects. Often these projects, carve out squares or similar shapes which minimizes the amunt of people inconveinced. In fact to avoid public outcry they can usually buy up a bit of a buffer space and the usage is often unbothersome. The same cannot be said for roads. As for private roads in europe I would be interested to know how much government involvement/connections were involved if not outright graft.
9.24.2006 11:28pm
TruthInAdvertising:
"Private ownership of roads is no more radical than private ownership of utilities, railroad lines, power lines, or other similar infrastructure."

Is that really an apt analogy? Much of the right-of-way and easements acquired by railroads and utilities was done using the equivalent of eminent domain by private companies. I just read an article today discussing a proposed private road in Colorado that uses an old mining law that allows private entities to use eminent domain to acquire land to build roads. These days, railroads and utilities still enjoy legal protection and freedom that most private corporations do not.
9.25.2006 12:00am
c.f.w. (mail):
So, does pretexting get a pass in this context but not when HP asks for phone records?

The AG can trick me into selling my land for half its value (if I knew of the road) but no HP tricks about my phone bill?

Count me out, thanks. ED looks like the worst possible approach, except for all the alternatives.
9.25.2006 12:46am
nick (www):
"...railroads and utilities still enjoy legal protection and freedom that most private corporations do not."

They also were traditionally burdened with greater regulations. Under the common law, a franchise (a privately owned natural monopoly or coercive power, such as a private court or police force) was treated differently than a competitive enterprise. This distinction was the basis for Hale's "public interest" doctrine, and also provided the original meaning of "public use" in the Takings Clause. See

Blown down in the wind: the public interest doctrine

and

Why Kelo was way off

In particular, the original meaning of "public use" in the Takings Clause was that if a road was a natural monopoly and was regulated as such (i.e. was required to be a common carrier and charge a "reasonable" rather than market rate) then eminenent domain could be used for its benefit — otherwise not. An alternative (but I think inaccurate) explanation was that eminent domain could not be used for the eventual use of any private party.
9.25.2006 12:57am
Ilya Somin:
I can't respond to every argument here because of time constraints, but will note a few:

1. The eminent domain power is used by public entities to swiftly obtain property necessary for the public health and safety. This speed in obtaining property also reduces the cost to taxpayers for the ensuing construction projects.

This argument assumes that a government project using eminent domain will get assembled faster than a private sector one using secret assembly. This is highly unlikely in most cases, given the cumbersome nature of government bureaucracy and the many procedural protections that are justifiably imposed on efforts to condemn property. Moreover, government road-building projects are notorious for delays and cost overruns that occur even after the land has been acquired. The Big Dig, referenced in my initial post is a good example.

2. Claims that secret assembly involves unjustifiable "trickery."

I don't see why this is so. The builder offers the owner a deal for a certain amount of money. The latter has every right to say yes or no or to try to bargain for more. No trickery there. The potential buyer has no obligation, moral or legal, to inform the seller what he is going to use the land for. This is a fairly standard principle of contract and property law.

Yes, if the seller knew the whole truth, he would ask for a higher price. But in that scenario the project probably would either 1) fail to go forward because of holdout problems, leaving both buyer and sellers worse off, or 2) be pushed through with eminent domain, which will also leave the seller worse off than with secret assembly.

3. Secret assembly may lead to the building of roads that cause nuisances or other harms.

The law can be written to block such harms or require compensation for them. But such harms can be addressed irrespective of whether they are caused by projects that use secret assembly or by ones done in the open. The law should treat the two cases exactly the same. If the would-be secret assembler knows that his resulting project will open him up to a lawsuit and/or regulatory restrictions, he can be deterred from undertaking it in the first place.
9.25.2006 1:33am
Ilya Somin:
his hypos involving transactions with one or two individuals have little relationship to the realities of actually structuring a transaction involving hundreds of owners. More importantly (unless I missed this point), he doesn't seem to discuss zoning at all, which is going to throw a big wrench into the concept of secret assembly.

Actually, as I discuss in my article linked in the post, there are many examples of private developers (e.g. - Disney) using secret assembly to buy out hundreds of owners. As for zoning, I don't see why it poses a special problem for secret assembly. If the zoning regulations in a particular area forbid the construction of a road, this would be a problem irrespective of the question of whether or not the assembly is done through eminent domain or secret purchase. If they do not, there is no problem. Zoning law can indeed often block potentially valuable construction projects, but this problem is separate from the issue of the way in which the property for the projects is acquired.
9.25.2006 1:37am
Tom Holsinger (mail):
Mr. Somin,

California and Massachusetts are worlds apart in public construction contracts. You might as well equate corruption in Nigeria with that in Switzerland.

Excessive delays and overruns in California public construction are due mostly to stupid extrinsic political factors, of which the San Francisco Bay Bridge replacement project is the current leading example. Compare that fiasco to the extremely fast Southern California freeway reconstruction after the most recent big earthquake there.

Furthermore the swiftness of eminent domain use in California is often, if not commonly, done AFTER, not before, the pertinent decisions are made and the construction contracts executed. I have had four such eminent domain actions cross my desk this year, and I'm a trial court research attorney handling one of three law &motion departments in my court.
9.25.2006 1:53am
David Sucher (mail) (www):
"Secret assembly" of land which can ONLY (by its linear nature( be used for some sort of transport corridor.
But doing it without the governmental (MANY) entitlements.
Hmmm....
That'spretty high-rolling and so risky that I call it impossible to finance.
In such a case case you'd replace private owners with governmental jurisdictions acting to extort (even more than they do now) "mitigation" from the private road builder.
9.25.2006 2:07am
Ilya Somin:
Tom,

I agree that the delays in govt roadbuilding may sometimes result from either 1) "stupid extrinsic" political factors, or 2) lengthy administrative processes that occur prior to condemnation rather than after it. Nonetheless, these types of delays are also the result of operating through the government rather than the private sector, and they cut against the claim that governmental roadbuilding will be faster than private construction.

That does not prove to me that ALL road construction should be private. But it does, I think, show that the private sector should have a larger role and government a smaller one than the conventional wisdom suggests.
9.25.2006 2:27am
Lev:

Has Benson successfully demonstrated that the use of eminent domain for roadbuilding is completely unnecessary? I think not. Even with private ownership, secret assembly is more difficult to use in the case of roads than in the case of other building projects. To build a road, one has to buy up property in a continuous line from Point A to Point B. This makes it far more difficult to hide the builder's true intentions. What Benson has proven, in my view, is that roads can be built without the need for eminent domain in at least a substantial number of cases.


There are several things I am not sure I understand.

When one is building a large property project, such as a hotel casino, one needs to assemble enough whole pieces of property so that the hotel casino buildings can all end up on one large assembled piece of property - "secret assembly" of the whole properties is entirely appropriate to the project.

Roads are built by taking a little bit from this property and a little bit from that one, and not usually, it seems to me, whole properties. Isn't that a significant difference between the two that argues in favor of an emminent domain type of regime than a "secret assembly" type? The interstate highway does not need the whole farm, only the 100 feet along the southern edge.

What does "state building the road" have to do with the Big Pig? Sure the state is the project owner, but it contracts out design and construction to private companies. If the state's project oversight is slovenly, lax or corrupt, then you end up with The Pig - and Bechtel's management of the construction appears not to have been very good. If project management is tight, then you end up with the various Texas and California freeways that are ontime, or early, and within budget. Do states really have their own highway construction departments?

And with respect to The Pig, since the porpoise was to put the central artery underground, how much condemnation etc. was actually done?
9.25.2006 4:22am
Ilya Somin:
Roads are built by taking a little bit from this property and a little bit from that one, and not usually, it seems to me, whole properties. Isn't that a significant difference between the two that argues in favor of an emminent domain type of regime than a "secret assembly" type? The interstate highway does not need the whole farm, only the 100 feet along the southern edge.

There is no reason why secret assembly can't be used to acquire parts of lots as well as whole lots. Moreover, whole lots sometimes do need to be acquired for roadbuilding. Furthermore, as Benson shows in his article, situations where only parts need to be acquired may actually facilitate the use of voluntary methods of acquisition.

What does "state building the road" have to do with the Big Pig? Sure the state is the project owner, but it contracts out design and construction to private companies.

Yes, but the state has less incentive to properly manage the the private contractors and prevent waste, fraud, abuse, etc. than a private developer would. If the contractors perform poorly, the latter loses its own money. State officials, by contrast, risk only taxpayer money and they often suffer no harm at all if it gets misspent. They may even benefit from allowing such malfeasance, if the private contractors involved have enough political clout to reward the politicians and bureaucrats for their lax supervision.
9.25.2006 4:33am
Brett Bellmore:

how do I maintain my reasonable expectation as a landowner that neighboring property won't suddenly become a major highway?


Why should you have any such expectation? If you want to control what happens to neighboring property, buy it. Or at least right of first refusal.

With eminent domain, you not only have no basis for such an expectation with regards to your neighbor's property, you can't even be confident about your own.


With the threat of eminent domain behind me, I have told lawyers for land owners, "we'll get to you when we get to you, and we'll get done when we get done."


And that's supposed to relieve the concerns of somebody who doesn't like eminent domain? The more I read these discussions, the more I get the impression that eminent domain is less of a necessity, than it is a convenience.
9.25.2006 7:51am
Buck Turgidson (mail):
The Big Dig argument, both in the original piece and in the comment, is completely nonsensical. The issue of cost overruns has little to do government controls. It has more to do with private contractors' expectations that any cost overruns will be paid for eventually, because government, unlike another private entity, can be held hostage.

With respect to the Big Dig, this is particularly telling. There were significant cost overruns in the project because the original designs failed to take into account a number of $major elements that resulted in impossibility to use some cost-saving techniques and in extra seepage that was not anticipated.

But the costs continued to skyrocket and the excess even accelerated after the allegedly wasteful government hired another private contractor--Bechtel--to investigate and control the costs. The biggest problem was with cronyism, as one governor after another continued to appoint incompetent or not fully competent people to handle the project. Each of them was, in turn, fired for incompetence, except for Andrew Natsios who moved on to the Federal Government and projected that the total cost of Iraq invasion and post-invasion reconstruction would amount to $1.2 million.

It is quite debatable whether the latest problems that Mitt Romney blamed on one of his agencies was really caused by any of the then-current members of the agency or the agency at all, as opposed to Bechtel, which failed to provide adequate services, including cost controls, safety projections and risk management.

Given Bechtel's and Haliburton's performance in Iraq, one would have to doubt that a private enterprise is really capable of delivering the goods and services traditionally provided by government-controlled enterprises. The personal greed of executives and even middle management seems to be overwhelming and, once the contract is out of the public hands, there is little ability to inspect the performance. Similarly, the assumption that private enterprises would care about the environment or non-customer populations as opposed to the bottom line is completely unfounded. Capitalism unchecked by regulation results in wasteland because the currently prevalent economic theory demands immediate return on the investment without regard to long-term (and I mean VERY long-term) projections.
9.25.2006 11:24am
new lawyer (mail):
Somin -


There is no reason why secret assembly can't be used to acquire parts of lots as well as whole lots.


Maybe I'm missing something, but wouldn't a farmer probably catch on pretty quickly that a highway or railroad was in the works if someone knocked on his door and offered to buy a 100 foot strip of the edge of his farm for no apparent reason? Nobody farms on 100-foot strips of land, and I'm sure there'd be quite a buzz at the local General Store once our hypothetical farmer realizes his neighbors have received similar offers. Of course, the farmer(s) may be willing to sell, especially if the price was right. But the process of acquiring partial lots would seem to make keeping the project secret nearly impossible.
9.25.2006 1:44pm
KevinM:
Keeping massive, contiguous land purchases secret? This guy is kidding, right? Is he familiar with human nature?
9.25.2006 3:08pm
Perry:
Buck,

Whether at a corporation or at a government - people are greedy and self interested. that is a given. But I think there is a deeper and more important point that you miss.
The main difference is that if this project was done as a private project, there would have been much more due diligence performed by the lending parties in order to make sure that the cost estimates had some degree of reliability to them. Why?

Because it would be their own money, their investor's money and their stakeholders money that was on the line. There is a very slim chance that they would have been ok with approving any loan on due diligence for a project that was bad enough to result in it being to a power of ten over budget. And that is the first foremost and most important check.
9.25.2006 3:10pm
Tom Holsinger (mail):
Mr. Somin,

Nasty little facts creep in. Eminent domain either is or isn't. Once it is, public entities will use it. This has nothing to do with whether some roads should be private but, given the existence and use of eminent domain by public entities, the would-be developers and operators of private roads will want to use it too.

My wife and I had a nostalgia vacation last April in Illinois and Iowa where she grew up. One of the freeways we travelled on was a toll road operated by a private group who had leased the right to operate it from the public entity which constructed it. The lease was for a very long period - I forget how many years, but it was a bunch.

If that freeway needs expansion eventually, what are the odds eminent domain will be used to obtain the real property for expansion? Again, its ownership is public while its operation is private.

These matters simply cannot be broken down into neat little theoretical cubbyholes. The existence of eminent domain for use by public entities will absolutely cause the owners/operators of private roads to want to use eminent domain or something like it too and, on that scale, there will be little difference to the public at large who uses it. It will matter directly only to the owners of the land at issue. While that will indirectly affect the public too, there will be a diffusion of responsibility.

The greatest threat to the public weal lies in separation of power from responsibility. The operation of private roads on the scale of major freeways magnifies that threat. This issue should be considered in weighing the relative advantages of private roads in the United States.

Getting back to practical issues, I live and work in a county experiencing rapid population growth. This means constant expansion of major public facilities such as schools and roads. Real estate and development litigation has been my speciality for almost my entire time in practice.

My county is primarily agricultural. The land taken for new roads and schools is primarily agricultural and ranch land/feed lots/dairies. In almost every instance I have personally encountered, the actual land acquisition has taken place at the end of the construction planning process, and land acquisition costs have been a minor component of the overall public expense.

There are many reasons for this. The planning and, often, environmental litigation, expenses are minor compared to the construction and land acquisition costs, so publc entities front-load the planning process. Once the time comes to spend real money, they try to telescope that period as much as possible so the public can benefit from the projects ASAP after significant public funds are expended, i.e., these motivations are very similar to those for major private construction projects.

Mr. Benson's model has issues with economic reality, i.e., the concept of return on investment. It drags out the land acquisition/capital investment period while adding great uncertainty and risk. Public entities using the eminent domain power have major marginal advantages over private ones lacking it in such long-term capital-intensive projects.

Investors in private roads will have overwhelming incentives to obtain and use the eminent domain power or its equivalent, to the point where the Illinois highway I mention above (public ownership &private operation) is a more likely result than purely private ownership.

This looks mighty like another beautiful theory murdered by brutal facts.
9.25.2006 3:12pm
happylee:
Professor Benson has also written an article titled "The Rise and Fall of Non-Government Roads in the United Kingdom." It appeared in a book titled Private Roads to the Future. In it he reviews the history of efficient private roads in England that were slowly taken over by the government, with predictable results. Although not surprising -- name one area of our wonderful life that gov't does not want to govern -- it does support the idea that private roads are both possible and desireable. This would surely confuse most folks nowadays. (As I tell my kids: reality is not limited by your lack of imagination.)
In addition to a host of wonderful benefits that would accrue to users of these roads, consider that it would also almost surely solve many other pressing legal issues. Take speeding, for example. My road, my speed limit. Rush houre? No problem, pay for the convenience of using it at peak hours. Etc. Immigration issues also become far less difficult because Mr. and Mrs. immigrants would have had to pay for every inch of land he or she crossed to get to Mr. Employer or Mrs. Neighbor -- no socializing costs of unskilled immigrants to the benefit of select employers of these immigrants, etc.
And that's just the start.
Take a toke off the alternative universe bong, sit back and imagine a world where everything is privately owned...no tragedy of the commons, no externalized costs, heightened efficiency of the kind one can only dream of nowadays...OMG, is humanity ready for complete freedom where each according to his ability, period? Nah.
9.25.2006 4:26pm
farmer56 (mail):
secret assemby? Well that is fine IF?? it is allowed for other uses. Want to build an office park in an area that zoned agriculural use only? You must assume that the zoning commission will change the zoning. Go into a nice residential area and put up a small factory, it will employ 200 people and produce 3X the amount of property taxes,not to mention the payroll of 200 employees.

So, contrary to the constitution, SCOTUS as changed the the constitution from... the govt can not take private property unless for public use...and Change it to...The govt can not take property unless for public good. I am no english major, but, 'good and use' are two different things.

If the difference of 'good' and 'use' can be interchange, then quartering troops on your property is is also allowed. If keeping troops on private property to defend the nation is not for the public good, building an office complex is not.
9.25.2006 4:43pm
SabreRedleg:
Perry said:


The main difference is that if this project was done as a private project, there would have been much more due diligence performed by the lending parties in order to make sure that the cost estimates had some degree of reliability to them.


Due diligence being the environmental studies to determine the impacts associated with the project (wetlands, habitats, air/noise/visual quality, archaeological/historic resources, Hazmat, etc); subsurface investigation to determine the suitability of native materials for roadway subgrade and structure foundations; topographic survey to determine earthwork quantities and clearing limits, etc. Some of these investigations are impossible to do without getting onto the property. If the goal is to acquire the property "secretly" you'd need to buy the property before completing your investigations.

Projects with federal money require that NEPA be completed prior to any property acquisition taking place. This is to ensure that a lot of money isn't spent buying property that turns out to be on an unusable alignment (perhaps due to the discovery of an archaeological site), costs too much to mitigate, or investing in an alignment that is not the best alternative for operational reasons. Projects without federal funding have more flexibility to purchase property earlier depending on state and local regulations, but should still demonstrate that the money is being spent wisely, on property that will be used for the project.

Also, money is not always the issue. The project I'm currently completing the design of (constructing a new interstate interchange and extending a state highway 0.7 miles) requires the (full or partial) acquistion of 50 separate parcels. We currently have 3 parcels in condemnation, all over access issues.

At any rate, most highway projects these days involve improving existing facilities (adding additional lanes, grade separation, safety improvements), not building new corridors through virgin territory. It would be rather difficult to secretly purchase strips of property adjacent to an existing highway right of way an not raise suspicions.
9.25.2006 5:54pm
Peter Wimsey:
Ilya writes
As for zoning, I don't see why it poses a special problem for secret assembly. If the zoning regulations in a particular area forbid the construction of a road, this would be a problem irrespective of the question of whether or not the assembly is done through eminent domain or secret purchase. If they do not, there is no problem. Zoning law can indeed often block potentially valuable construction projects, but this problem is separate from the issue of the way in which the property for the projects is acquired.


The problem with zoning for secret assembly is that - assuming your road is not located entirely in a rural area with no zoning or other land-use restrictions - areas aren't zoned for roads. If you wanted to build a road, you would have to go to a planning commission and get your plan approved before you could begin building. Planning commission meetings are public. Accordingly, it's going to be very difficult to keep your road building secret.

It's just much more complicated, and public, than buying up the land. I mean, if I wanted to build a road connecting my street with the street my backyard neighbors face, I could buy up their property. But that doesn't mean I would be allowed to demolish both of our houses and put a road there - I would need to get a variance, and I couldn't do that without posting notice and arguing for the variance at one or more pubic hearings.
9.25.2006 8:56pm
dew:
I don't have the knowlege of some posters here, but I had a similar reaction as Mr. Wimsey -- I wondered how much actual experience Prof. Benson has with actual road building. For example:

"(consider the amount of land that housing developers often set aside for roads, which they also build, because good roads dramatically raise the value of the lots in the development)."

I can only think of one development that I have heard of in 20+ years in my or surrounding towns that was built to a higher standard than the minimum required, including developments with million $+ houses. Maybe his statement is true in other parts of the country, but I think that is unlikely - not to disparage all developers, but from my experience I think many would rather build narrow, poorly constructed roads and spend more on visuals (stone walls, flowering bushes) rather than follow the (mostly invisible) required technical aspects, like width and road bed requirements that make a good road.

I think unsupported opinion-as-fact assertions like this weaken the paper substantially.
9.26.2006 10:18am
SabreRedleg:

"(consider the amount of land that housing developers often set aside for roads, which they also build, because good roads dramatically raise the value of the lots in the development)."


To further rebut that statement, developers set aside land for roads because a) they're required to by the local jurisdiction, b) they're trading with the local jurisdiction (i.e. we'll build out this intersection in exchange for an extension of the sewer line), and c) it allows them to fit more (smaller) lots into the same space, which tends to be a better return on their investment.
9.26.2006 12:16pm
happylee:
In response to Dew: It could also be that developers are responding to the wishes of residents who spend but a moment on the roads and plenty of time at home. Therefore, blooming flowers and pretty homes are, in fact, more important to them. Given scarce resources in our physical world, shouldn't consumer preferences rule, and if consumer preferences dictate smaller roads and bigger flower gardens, does a developers provision of these goods strengthen Benson's argument?
9.26.2006 7:07pm
dew:
The study was claiming that developers would build better roads because that increases property values. I reasonably assume that "better" means "built better", not "better aesthetics". I am not sure I understand how the possibility of private developers making pretty yet poorly constructed roads really advances Prof. Benson's thesis in a useful way, but regardless, that does not seem to be the claim made in the paper.

The reasons for the technical requirements are partly because of the arguments you make -- too many people will choose short-term aesthetics and ignore or more likely assume good construction (I suspect building codes are in the same catagory). Poorly build roads can start to crumble around here after just a couple of years - conveniently after the developer has mostly emptied assets from the shell company used to build the development, leaving the residents high and dry (and just that has happened). Too-narrow, too-steep, or poor intersection roads can mean that school busses cannot always navigate them - and less obvious and perhaps more important, it can mean multiple fire/rescue trucks cannot navigate them in case of an emergency.

Maybe in some sort of libertarian utopia residents the "bad, pretty road" folks get screwed and serve as an object lesson that a good roadbed and sufficiently wide roads might be "better" than flowers and worth some additional research by buyers. Where I live in, the residents, for better or worse, have chosen a different path to require minimum construction standards by builders.
9.27.2006 8:51am
dew:
Sorry, drop "residents" from that last paragraph and it makes more sense. Typing while having breakfast = mistakes.
9.27.2006 12:07pm
happylee:
Dew's response reminds me of life's lessons imparted on unwilling youths (or "yutes" if you are cousin Vinny). In the longrun certain standards would evolve in libertania, and, heck, maybe those standards would be exactly what our robed engineering philosopher kings deemed proper. The central issue is whether we need government (read: force or threat of force) to build roads, etc. And Benson does a good job of answering: no, we don't.
9.27.2006 3:03pm
dew:
So it appears your argument is ignore the details (right or wrong) and concentrate on the big picture? The lesson for youth I would suggest here is Mark Twain -- "Get your facts straight first. Then you can distort them any way you want."
9.27.2006 8:58pm
happy lee (mail):
To clarify: I got distracted while making post and meant to follow first sentence with something along the lines of all homeowners who choose pretty flowers over solid roads will eventually learn that perhaps this is not the best case, just as "yutes" learn that you can't live on candy alone, etc.
As for great government regulations making roads safer, that could well be the case. But this does not justify government road construction any more than the fact that the Soviets could pour steel justifies communism.
But with that I stray to far from original blog thread and must sign off.
9.28.2006 1:52am
dew:
happy lee:
Thanks for the clarification. I actually find the paper intriguing, but I was very disappointed with the quality of the supporting facts -- for another example, Disney is the sole owner of both "cities" where Disney World is located (a fact the author did not mention), so it isn't necessarily an unqualified example for the rest of the country of public roads being built by private companies.
9.28.2006 6:44pm