"Eminent Domain Through the Back Door"

Standing up for property rights and civil rights in Montgomery, Alabama

David Beito | April 28, 2009

What is happening in the cradle of the modern civil rights movement? Jimmy McCall would like to know. "It was more my dream house," he laments, "and the city tore it down... It reminds me of how they used to mistreat black people in the Old South." In 1955, Rosa Parks took on the whole system of Jim Crow by refusing to give up her seat on a segregated Montgomery bus. Today, McCall is waging a lonely battle against the same city government for another civil right: the freedom to build a home on his own land.

Though McCall's ambitions are modest, he is exceptionally determined. For years, he has scraped together a living by salvaging rare materials from historic homes and then selling them to private builders. Sometimes months went by before he had a client. Finally, he had put aside enough to purchase two acres in Montgomery and started to build. He did the work himself using materials accumulated in his business including a supply of sturdy and extremely rare longleaf pine.

McCall only earns enough money to build in incremental stages, but eventually his dream home took shape. According to a news story by Benjamin Solomon, the structure had "the high slanted ceilings, the exposed beams of dark, antique wood. It looks like a charming, spacious home in the making."

But from the outset, the city showed unremitting hostility. He has almost lost count of the roadblocks it threw up including a citation for keeping the necessary building materials on his own land during the construction process.

More seriously, he was charged under the state blight law, which allows a municipality to designate a building as a "public nuisance" and then demolish it. Critics have accurately called this "eminent domain through the back door" and warn that opportunities for abuse are almost limitless. In contrast to the standard eminent domain process, for example, property owners do not have any right to compensation, even in theory.

The reaction of Montgomery's city fathers seemed strange to McCall. Wasn't he trying to fight blight by building a new home?

McCall suspects that wealthy developers were trying to get their hands on the property: a rare two-acre parcel on a major thoroughfare. Unlike countless others in similar straits, McCall fought back and hired an experienced local lawyer. In the middle of last year, he negotiated a court-enforced agreement, which gave him 18 months to complete the home. Only a month after the agreement took effect, the city demolished the structure. Local bureaucrats, obviously in a hurry to tear it down, did not even give him notice. The bulldozers came in the same day as the court order that authorized them.

McCall appealed to the same judge who had allowed the demolition. Saying that she had been misled, the judge ordered the city to pay compensation. Montgomery has appealed and at this writing McCall has not received a cent. McCall thinks that the city intends to drag it out until his money runs out. "I've got a lot of fight left in me, and all I want is justice," he states.

McCall's story of eminent domain through the back door is depressingly familiar to Jim Peera's story. For almost five years, he has fought a pitched battle with City Hall over his plan to renovate a strategic parcel of 121 apartments in the heart of the Rosa Parks Community and rent them to low-income senior citizens. Montgomery has a multimillion dollar development plan for his 8-acre site and is using "blight" to condemn and demolish it.

Peera has withstood multiple setbacks on his investment, including unfounded criminal charges by the city and mysterious fires on his solid block structures. He has repeatedly tried to sell to or partner with the city for a much needed affordable housing development, but it has rebuffed him.

"They're used to forcing black folks to give their properties up via imposing hefty demolition liens, as opposed to buying land at fair market value," he said.

Most recently, the city tried to further devalue Peera's property by reducing the density from "multifamily" to single family, thus making it impossible to provide affordable low-income housing. Though Peera won in two courts, local bureaucrats, much like they are doing with McCall, meet his legal victories with appeals and other delays.

Peera, who had to flee from his native East Africa after Idi Amin expelled its Asian population, does not easily intimidate and is extremely determined to fight property abuse in Alabama. He is trying to mobilize other Montgomery property owners who face the same plight. Through the state's freedom of information act, he has obtained the names of over several hundred individuals, mostly from minority neighborhoods, who have had their homes summarily demolished under the blight law.

The former owners have related to him a litany of arbitrary mistreatment, but most were too poor or lacked the necessary information to fight back against the city. "What this City Hall is doing is criminal towards blacks and property owners, and it must be stopped," Peera said.

Peera has appealed to the State Advisory Committee of the U.S. Commission of Civil Rights and hopes that others will join him. On Wednesday, Alabamians who believe that their property rights have been violated under eminent domain, either through the back door or the front door, can tell their stories to the Committee at a public forum from 9 a.m. to 5 p.m. at Whitely Conference Hall on the Montgomery campus of Troy University.

David T. Beito is chair of the Alabama State Advisory Committee of the U.S. Commission on Civil Rights and professor of history at the University of Alabama. This article originally appeared in the The Tuscaloosa News.

Comments

C. Montgomery Montgomery|4.28.09 @ 12:08PM|#

Some say I am trying to make these property owners sit in the back of the bus.

What nonsense! I want to throw them *under* the bus.

|4.28.09 @ 12:20PM|#

Advocates of federalism would tell you that the framers intended to permit the state of Alabama to order its affairs as it saw fit even if that included the consideration, enactment and enforcement of such segregationist legislation that required negros to ride at the back of the bus.

Federalism worshippers argue that it is more important that a state government get to do things as it sees fit than the individua liberty of a state's citizen be vindicated. Of course, this is revisionist states rights rubbish. It represents the proposition that state majoritarian rights are too important to lose even if the individual, inalienable rights of an individual are lost instead. They "reason" that if we permit the federal courts to "go activist" and void state laws that interfer with or deprive the liberties of individuals, we will inevitably invite tyranny. To them, the tyranny of being forced to ride at the back of the bus is no tyranny at all because the practice had been ordained by a democratically elected state legislature.

Many adherents of states rights and federalism speak of laws enacted by democratically elected legislature as talismanic. Its as if majoritarian rights occupy a higher ground in our higherarchy of rights than individual rights. The framers did not support this proposition. If they thought that, they would have so said. As I have often stated, there is a reason why they included Artice 4, section 4. The guarantee of a republican form of government forecloses the argument that the states were intended to be laboratories of social and economic experimentation. Brandeis often invoked such non-sense in defending "judicial restraint."

Mike in PA|4.28.09 @ 12:29PM|#

Just ridiculous...

On a side note - FUCK my senator, Arlen Spector!

hmm|4.28.09 @ 12:29PM|#

Eminent is easily solved with land mines or an angry armed mob.

It's sad when the people trying to make a difference have to fight the people elected to make a difference.

hmm|4.28.09 @ 12:30PM|#

I forgot the domain part of eminent domain...

Lester Hunt|4.28.09 @ 1:51PM|#

Way to go, David!

LarryA|4.28.09 @ 2:05PM|#

McCall appealed to the same judge who had allowed the demolition. Saying that she had been misled, the judge ordered the city to pay compensation.

Said judge needs to be more judicial. Whoever signed the application for the demolition order should be in a cell somewhere, hanging by his thumbs. The rest of the city fathers should be issued hammers, and ordered to put things back the way they were.

Mr. Rational|4.28.09 @ 2:56PM|#

Just a hypothetical thought. What would happen if everyone who had their property taken UNFAIRLY (like it was given to another citizen for private development) just waited until the new structures were built and then burned them down. I would think, hypothetically, that developers would make sure everyone had voluntarily agreed to these deals. Just sayin.

|4.28.09 @ 3:15PM|#

What's rational about arson?

I agree with LarryA, and I'll add that any judge who doesn't uphold their own order should be removed from the bench.

|4.28.09 @ 3:58PM|#

All the best to Jimmy McCall and Jim Peera in their fight against the gov't of Alabamastan

|4.28.09 @ 4:19PM|#

What's rational about arson?

Well, I think Mr. Rational was pointing out that the response to arson would be rational, per RC'z First Iron Law.

|4.28.09 @ 4:44PM|#

Eminent domain, it's just another part of the Bush/Cheney legacy:
http://www.washingtonpost.com/wp-dyn/content/article/2005/06/23/AR2005062300783_pf.html

I'm sure that twit appointee Harriet Miers that Bush laughably nominated would have gone along with the Republican machine/Scalia vote just the same.

Fight the power. Way to go Specter.

DavidW|4.28.09 @ 7:24PM|#

This is the sort of thing that makes me wonder if I should buy a gun. You'll never know when you see a monstrous tractor in front of your home, about to tear it down.

hmm|4.28.09 @ 10:05PM|#

This is the sort of thing that makes me wonder if I should buy a gun. You'll never know when you see a monstrous tractor in front of your home, about to tear it down.
Wondering if you should buy a gun is like wondering if you should wear a condom. You never know the consequences of not acting until it's to late.

God made man and Sam Colt and John Moses Browning made them equal.

hyperbole ftw

G. Hamid|4.29.09 @ 9:28AM|#

Kj, maybe you should read the article you link to:

"Stevens was joined in the majority by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer."

"O'Connor was joined in her dissent by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas."

|5.1.09 @ 4:23PM|#

arson is the most rational thing in this thread. fuel + oxygen = fire.

if your home, which is protected under a court-negotiated and court-enforceable settlement is attacked, defend it with force of arms. money is only money, but dead people don't come back to life in alabama.