This Land Is Green Land

Jesse Walker | July 8, 2005

One silver lining to Kelo: It's giving conservationists a lesson in the value of property rights.

Comments

Jeff|7.8.05 @ 12:01PM|#

Somebody, I forget who, once said that the most effective way to save the rain forest is to buy it.

|7.8.05 @ 12:05PM|#

That argument is a reach. Here's the comment I tried to post:

"The problem with that theory is that exurban and rural areas, by definition, have huge amounts of land available for development. If they want a subdivision, Farmer Bob's parcel is just as good as Farmer Bill's, and if neither of them need the money (yeah, right), the there'e always Farmer Ted.

"This isn't the case in cities trying to redevelop, in which the targetted area is the only location where the redevelopment project can be. New London can't build its attractive riverfront mixed use neighborhood on a parcel a few miles away from the riverfront. A city can't revitalize a blighted neighborhood by buying up a few parcels on the other side of town. They are locked into a specific location, and if they want to carry out the plan, they have to have the specific targetted properties. This simply is not the case in undeveloped areas."

|7.8.05 @ 12:21PM|#

Before everybody jumps all over joe, as I understand it he's not arguing that farmers shouldn't enjoy secure property rights. He's simply saying that ED doesn't threaten property rights on the edge of a metro area to the same extent that it threatens property rights inside the metro area. Which is not a defense of ED, simply an analysis that Kelo's impact will be bigger in some areas than others.

Agree or disagree with joe as you will, but don't accuse him of saying things that he didn't say.

|7.8.05 @ 12:24PM|#

If they want a subdivision, Farmer Bob's parcel is just as good as Farmer Bill's,

That's not exactly true. While in the early stages of development, developers have more options, as these once small cities grow, they cannot just skip over 160 acres of land and build their subdivision farther out of town. The infrastructure costs of doing that would be very uneconomical and would provide "just cause" to use the new SCOTUS ruling to make the farmer sell his land.

|7.8.05 @ 12:31PM|#

Yogi,

The key phrase in your post is "as these once-small cities grow." The following is an oversimplification, but since the topic is about a broad trend, it may be useful:

When an exurban/rural area is small, there are plenty of options for the subdivision's location. But once there is enough growth and building that open fields and farms become somewhat scarce, those fields and farms become An Important Public Resource that is essential to Protecting the Community's Character, and their protection, not their development, will become the overriding public purpose that the land can serve.

Not in every case in every growing exurb, to be sure, but almost always.

|7.8.05 @ 12:45PM|#

joe,

I guess what I was trying to say was that certain parcels of land make more economic sense to develop than others, no matter how many other options there are. So that's what got these guys scared now, because it means a town could say, "Well, it's better for the town economically to grow to the south to hook up with the Interstate that's south of town." They may have farmland north of town that's for sale, but if they want to move south, they could with this new interpretation of the law.

|7.8.05 @ 12:47PM|#

joe,

Isn't that still eminent domain, then? The owner of that scarce green space has just had the market for his property dwindle by government decree on what can and can't be done with it.

MP|7.8.05 @ 12:52PM|#

thoreau,

Nice try with the preventative defense. Too bad Russ D didn't take heed.

|7.8.05 @ 1:00PM|#

Yogi,

Municipalities generally do development projects, and use ED, when the market won't achieve the public goals. In the example you cite, the market would attach greater value to homes near the interstate than distant from it, and would steer growth there.

But that's in the aggregate. I can imagine a town facing a lone farmer who doesn't want to sell for personal reasons. That would be a hell of a fight, though. I can't envision such a taking being politically feasible in the type of community we're talking about.

Adam|7.8.05 @ 1:01PM|#

In the immortal words of Jerry Garcia and Robert Hunter, "Every silver lining's got a...touch of grey.."

|7.8.05 @ 1:05PM|#

Russ D,

I've never heard of ED being used for the purpose of farmland protection. Tax abatement strategies, the purchase of conservation easements, and providing other incentives to the landowner is the process through which most farmland protection occurs.

But the point I was making is that getting rid of a growing town's remaining farmland will almost never provide any benefit that will overcome the desire of rural residents, and the suburbanites who decided to leave near them, to Protect Our Rural Character, and thus, it would be unlikely in the extreme that such a town would ever use its ED powers for that purpose. Anyone who proposed it would get booted from office.

|7.8.05 @ 1:07PM|#

MP,

LOL!

I was responsing to joe's reply to Yogi, not his original comment.

I suppose it goes back to the property being annexed by a town in the first place. I thought the bigger trend was unincorporated farmland being developed privately first, then the subdivided land being incorporated by a municipality much later.

|7.8.05 @ 1:19PM|#

(Parenthetical post:

joe,

I was trying to phrase a sentence and wasn't happy with it, so I took it out to make the rest clear. But I was going to try to say that it is a sort of de facto ED rather than actual hard-and-fast ED. )

|7.8.05 @ 1:35PM|#

Let's use this example, which isn't too far from some real-life examples near my hometown:

An area begins to grow and sprawl in a certain direction, due to whatever forces affect it: proximity to infrastructure, etc. However, there is a wealthy landowner (I know some just like this) who love their old town so much, and hate what the sprawl is doing, that they refuse to sell their land---which just happens to be thousands of acres directly in the line of development. Now, the developers, thwarted by this guy, have a couple of choices: they can move one municipality over, and take their tax revenue with them, or the town can force Mr. Landowner to give up his land via ED. Sure, the politicians might get some bad publicity, but that sure as hell didn't stop the fucks in New London, did it?

It is precisely these kinds of cases that I'm sure the environmentalists & anti-sprawlers are concerned about. Joe, you might say, oh, well, they could just move to the next property owner. But when these wealthy conservationists own massive swaths of land right in the path of development (and I know certain landowners who have bought large parcels with the express intent of thwarting sprawl), well, then, it's a different story.

|7.8.05 @ 2:06PM|#

It just occurred to me that there are several communities of Mennonites in VA and PA who would probably have something to say in this discussion. In mennonite families land is passed down through the generations. The idea is to maintain an agricultural lifestyle, developers be damned. In Harrisonburg VA, for example, you can step outside one of the biggest sprawl areas and see cows. THis is due to the city having expanded to the point where they are up against Mennonite land in just about every direction. New housing communities there have tended to have to position themselves a small way out of town to get around this.
I'd love to see what would happen if the city planners get the balls to try to move these Mennonites off their land. It would be pitchforks and torches literally.

|7.8.05 @ 2:09PM|#

Evan,

There was broad agreement among the public in New London that the city needed to be revitalized, and attract new jobs, residents, and tax dollars, by redeveloping its waterfront. The City got a lot of bad press nationally, but most of their residents seem to be behind it.

I've yet to hear of a suburbanizing rural area where there is support for converting farmland to strip malls and subdivisions. Mr. Wealthy Landowner Conservationist is more likely to get a parade than a condemnation notice.

|7.8.05 @ 2:12PM|#

I've yet to hear of a suburbanizing rural area where there is support for converting farmland to strip malls and subdivisions.

True. The support is usually for additional roads.

|7.8.05 @ 2:17PM|#

...and the residents are shocked and horrified that people build strip malls and subdivisions along those new roads.

|7.8.05 @ 2:25PM|#

joe's comment got me thinking.

St. Louis County is famously broken up into dozens of little autonomous towns or municipality. I grew up in the one called Florissant. In my suburban neighborhood there was a farm practically in the middle of it. There were no other farms adjacent to it or particularly close by. Basically, it was an island of Green Acres surrounded by a sea of Leave It to Beaver.

Around the time I was 18, a developer bought the farm and it is now a shopping center. I don't know the details of the purchase, but I could easily imagine such a purchase taking place under forced terms similar to Kelo. I would think a large plot of farmland surrounded in this way would become very attractive to a commercial developer as the housing around it spread outward and filled in the gaps of any other remaining open lots nearby. If the farmer had a hold-out mentality (and apparently he was determined to hold onto his land much longer than any of his neighboring farmers did), I'm sure the developer would have pushed for ED.

For ex-farmland turning into suburban areas with growing populations, I don't know if this was a very rare situation, or a fairly common one.

|7.8.05 @ 2:28PM|#

Oops, while I was composing my last post, this got posted:

I've yet to hear of a suburbanizing rural area where there is support for converting farmland to strip malls and subdivisions.

That is exactly what happened in my childhood neighborhood. The isolated farm became a strip mall anchored by a large supermarket.

|7.8.05 @ 2:32PM|#

Stevo,

How'd that go over amond the locals? Yippee, the farmland's going away - was that the general sense? A developer can push for Eminent Domain all he wants, but if the community isn't behind the plan, he's not going to get it.

It sounds to me like the destruction of character-defining farmland for sprawl development is a market-driven phenomenon.

|7.8.05 @ 2:35PM|#

By the way, in my neighborhood, the supermarket and strip mall were welcomed. There was already a small supermarket in the neighborhood, but now people had a choice of another supermarket to go to without driving (at that time) a half hour away.

|7.8.05 @ 2:38PM|#

Oops, we're cross-posting like mad, joe.

Since there was in fact local demand for a place to shop, probably ordinary market forces would have led to the farmer being bought out sooner or later. I'm sure that's what happened in reality. But if they farmer really, really didn't want to sell his land, Kelo opened up a way to force him.

|7.8.05 @ 2:43PM|#

but most of their residents seem to be behind it. Still doesn't make it right.

Everything is motivated by self interest. The developers who want to build & make tons of money. The landowners who want to sell & make tons of money. The public officials who want to build and get tons of tax money. The existing community who wants to stop growth, increasing their existing property value (and make tons of money).

Typical native response "I just moved here into this new subdivision. Now you can stop all the Gawddamned development. After all we need greenspace, since I just gobbled up another acre"

|7.8.05 @ 2:52PM|#

Ironchef,

"'but most of their residents seem to be behind it.' Still doesn't make it right."

I was making a point about practical effects and likelihoods, not principles.

As for your typical native response, let me add, "...and it ruins my appreciation of the rustic, rural character when I have to smell your cows' manure and listen to your tractor at 6AM."

|7.8.05 @ 2:54PM|#

There was broad agreement among the public in New London that the city needed to be revitalized, and attract new jobs, residents, and tax dollars, by redeveloping its waterfront.

I don't give a fuck what "broad agreement" (whatever that means) the "public" (whoever they are) reaches about what I should do with what is mine.

This statement certainly doesn't describe principle under which the taking of land can be justified, and it doesn't even describe a process. Rather, it is the justification of the mob. Not good enough, in my book.

|7.8.05 @ 2:58PM|#

Your book's out of print, RC.

Anyway, I wasn't making a comment about the principle of the thing, just a reading of the real-world dynamics.

|7.8.05 @ 2:58PM|#

Stevo,

When was this? 50s/early 60s? What part of the country?

MP|7.8.05 @ 3:15PM|#

But if they farmer really, really didn't want to sell his land, Kelo opened up a way to force him.

Unless you see some way in which "public use" doesn't mean "private establishments whose primary function is to serve the general public", Kelo didn't open up a way that wasn't already available, particularly when we are talking about shopping malls. Kelo addressed an issue of intent (which is why I think it was wrong) but not an issue of use.

|7.8.05 @ 3:17PM|#

Oh, real-world dynamics. Well, that makes it OK, then.

Lemme get this straight, then: If the "real world dynamics" of "the public" are "broad agreement" that something should be done, well, then, that thing should be done.

(It is taking a great effort of will to keep from violating Godwin's law at this point. Let's try an example that joe might respond to.)

So, since the real-world dynamics in 1942 indicated that the public was in broad agreement that Japanese folks should be shipped off to camps, then is was perfectly OK to do just that.

|7.8.05 @ 3:19PM|#

joe --

It was in Florissant, Missouri, which I believe is the largest municipality in St. Louis County. If you're unfamiliar with St. Louis County, it's a bean-shaped collection of small cities -- either suburban, small-townish or semi-urban in character -- that surrounds the north, west and south of St. Louis City. Florissant has a small "Old Town" area that resembles a small town, surrounding by suburban sprawl.

The farm was in the neighborhood I grew up in during the 1960s and 1970s. It was sold and turned a shopping center into circa 1980.

|7.8.05 @ 3:23PM|#

So, since the real-world dynamics in 1942 indicated that the public was in broad agreement that Japanese folks should be shipped off to camps, then is was perfectly OK to do just that.

Only if you can show that locking up the Japanese increased city tax revenues!

Did the Japs live in blighted neighborhoods? 'Cause if they did, they were clearly asking for it.

|7.8.05 @ 3:28PM|#

RC,

If you go back over my posts, you'll notice a distinct absence of "shoulds."

I'm writing descriptively, not prescriptively.

|7.8.05 @ 4:10PM|#

Help me understand something about ED. I live in an ex-burb of Dallas. It never had a town center as it is about a 4sq mile area that was incorporated around a cotton gin in the 30s. It was mostly just ranch land before the city started to grow. There's a strip of old (not historic, just plain old) houses right along the main road the city envisions, as our future town center. The strip screams for development, but I don't want to see people screwed out of their property. Does a developer have to first make an offer to the homeowners or can the city just use ED right off the bat to take over that land?

|7.8.05 @ 4:24PM|#

Yogi, check out the Phoenix metropolitan area. Farms laid out in 160 acre sections are being skipped helter-skelter by developers. It's not uncommon to drive two miles and pass a cotton field, then a subdivision, then a cotton field, then another subdivision.

|7.8.05 @ 4:25PM|#

There was broad agreement among the public in New London that the city needed to be revitalized, and attract new jobs, residents, and tax dollars, by redeveloping its waterfront. The City got a lot of bad press nationally, but most of their residents seem to be behind it.

Yay, democracy.

|7.8.05 @ 4:29PM|#

ralphus,

ED is such a long, expensive, difficult, uncertain process that no city is going to go through the trouble without trying to work out deals with willing buyers first.

|7.8.05 @ 4:31PM|#

"Farms laid out in 160 acre sections" would be Quarter Sections. A Section is One Square Mile or 640 Acres.

|7.8.05 @ 5:10PM|#

ED is such a long, expensive, difficult, uncertain process that no city is going to go through the trouble without trying to work out deals with willing buyers first.

The argument is the Kelo decision seems to have enabled the ED process to be shorter, less expensive, less difficult, and less uncertain.

Mike|7.8.05 @ 5:19PM|#

The argument is the Kelo decision seems to have enabled the ED process to be shorter, less expensive, less difficult, and less uncertain.

Are you sure? I haven't heard anyone claim Kelo makes things easier -- it broadens (or clarifies, depending on your bias) the purposes for which the property can be taken, but it doesn't remove any of the obstacles involved.

nmg|7.8.05 @ 5:30PM|#

Joe is clearly grasping at straws in an effort to justify the tyranny of the majority. He clearly picks and chooses when he thinks the tyranny of the majority should prevail.

nmg

|7.8.05 @ 6:22PM|#

Joe,

"A developer can push for Eminent Domain all he wants, but if the community isn't behind the plan, he's not going to get it."

Take a look at Seattle. All kinds of projects being considered and approved by the City Council and the Mayor the the bulk of the population opposes. The officials just figure that they can get away with it while filling their election coffers. Seattleites usually don't have the gumption to actually stand up for themselves against the government. Pity.

|7.8.05 @ 7:12PM|#

There was broad agreement among the public in New London that the city needed to be revitalized, and attract new jobs, residents, and tax dollars, by redeveloping its waterfront. The City got a lot of bad press nationally, but most of their residents seem to be behind it.

You know what's a bad way to attract new residents? Kick out the existing residents.

|7.8.05 @ 10:07PM|#

I didn't say it was a good idea, Phil.

Russ D, I disagree. The Kelo decision didn't make the ED process any faster or easier.

It didn't really even expand the use of ED, just confirm that the longstanding practice is, as everyone has been assuming, constitutional.

The Kelo decision isn't notable because it created a sea change, but because it failed to. And because it drew attention to existing conditions.

|7.9.05 @ 11:04PM|#

What's the lbetrarian view of slave holding? Isn't that a property rights issue? Did the government ever mandate it?

Jesse Walker|7.9.05 @ 11:44PM|#

What's the libetrarian view of slave holding? Isn't that a property rights issue? Did the government ever mandate it?

1. Against, of course.
2. Sure -- it's a clear violation of the slaves' property rights.
3. The government was intimately involved in enforcing and protecting it.

|7.9.05 @ 11:54PM|#

But the government didn't initiate slaveholding, right? Slaveholders did and then relied in part on the government to enforce it. But the government eventually criminalized slaveholding. So sometimes personal rights trump property rights and, in the case of slaveholding at least, the establishment of perosnal rights required government intervention. How about workers' rights and unions?

Jesse Walker|7.10.05 @ 12:23AM|#

I don't follow your argument. I don't see how the government's turnaround on slaveholding means that "sometimes personal rights trump property rights"; I'm not even sure what personal rights you're talking about. Nor is it clear that "the establishment of personal rights required government intervention." Slavery has certainly existed in the past without the government enforcing it -- in certain stateless Indian tribes, for example -- but in the southern states the institution couldn't have survived without an elaborate state apparatus backing it up.

If your point is that private actors, like states, can be oppressive, then I agree with you. If your point is that slaves were considered property and that therefore libertarians face some sort of contradiction here, I don't agree. Not every property claim is just.

|7.10.05 @ 1:47AM|#

My point as simply that the government didn't institute slavery. I'm not looking for contradictions in libertarianism, I'm just wondering how certain phenomena fit into your world view. You didn't address my question about workers' rights and unions.

|7.10.05 @ 1:26PM|#

Only tangentially related, but since this is the current designated Kelo thread I thought I'd offer some scenarios related to a post from last month:

The basic libertarian objection to Kelo is that obviously any use of ED is wrong, regardless of whether the recipient is public or private, but this decision is awful because it expands the scope of ED and will no doubt increase the frequency of ED takings. More theft is worse then less theft.

Well, let's consider a few very hypothetical scenarios. Not all of these scenarios accurately reflect the way decisions are made in the real world, but they do highlight some dilemmas for libertarians.

1) Grandma's house is going to be taken. No two ways about it. But there are 2 possible uses that it might go to: Either a publicly-run facility for after school tutoring programs, or a private tutoring center (something like Sylvan).

(I realize that in real life the use would be identified before the taking, but I want to illustrate a dilemma for libertarians. Also, I deliberately made the uses as similar as possible to avoid any extraneous issues. I realize that there are still differences between the 2 uses, but those differences aren't as big as the differences between, say, Walmart and a public hospital.)

Which of those uses is worse from a libertarian perspective? If we look strictly in the context of this single case, one could argue that, from a libertarian perspective, the public use is worse, since it will incur ongoing expenses to the taxpayers. But if we look at the bigger picture, the private sector use is arguably worse since it widens the scope of ED beyond public-sector use and hence expands the number of reasons that might be used to take houses in the future.

(And yes, joe, I know, some of the things I'm complaining about were allowed before Kelo. I'm trying to set up dilemmas for libertarians to think about, not deliver a history lesson.)

2) Grandma's house is taken and given to a private investor. The house is demolished and construction begins on the lot. But the developer's funds run out. Grandma doesn't want the lot anymore: Her home (which had sentimental value) is gone, she's now established in a new home bought with her compensation, and building a house there and moving yet again would be more stress than a sweet old lady of her age can really take.

The city decides to sell the lot. Who should get the money?
A. The city
B. Grandma

One could argue that the city should get it since Grandma already got money for the lot (against her will, but at least she got it). Moreover, the city had to rob the taxpayers to pay Grandma, and now they should be compensated.

However, we all know that cities don't use windfalls to compensate the taxpayers. They use windfalls to pursue new projects. To avoid rewarding bad behavior on the part of the city government, one could argue that the money should go to Grandma. After all, she had to suffer through the trauma of being evicted from the home where she lived for 50 years and raised her family. Sure, no amount of money is enough, but better that it go to her (the wronged party) than to the city council (which will spend it and brag about the spending).

Discuss.

|7.10.05 @ 2:49PM|#

Thoraeu:

CurrentLY designated..., idiot.

|7.10.05 @ 3:48PM|#

My point as simply that the government didn't institute slavery.

Your point is wrong. Slavery requires the government creating a property right in Human Beings.

|7.10.05 @ 4:15PM|#

I don't know if, strictly speaking, slavery needs a government, but it sure helps.

In, say, some sort of anarchy, a person with enough guns and thugs to enforce their captivity could keep slaves without the support of a state. Of course, one could argue that "enough guns and thugs to enforce their captivity" means that the slave-owner is effectively a tiny state unto himself.

But most slave owners exist in a situation where the state is some entity other than the slave owner. In that case, slavery can only be maintained under one of 4 conditions:

1) The state explicitly recognizes and upholds the property rights of the slave owner: If a slave escapes and the cops find him they will return the slave to the owner, just as they'd give you a call if they found your stolen car.

2) The state recognizes but doesn't actively enforce the property rights of the slave owner: If a slave escapes the cops won't try to find and return him, but they won't interfere if the slave owner wants to track down the slave by himself (or hire people to do so). In that case the slave isn't exactly property, since the law won't actively enforce the property right, but more like a second-class citizen, since the state won't protect the slave from coercion.

3) Black Market Slavery (version A): The slave is kept under lock and key in the shadows. Such slavery apparently goes on in the US, and exists in spite of the law.

4) Black Market Slavery (version B): The slave owner uses only a minimum of coercion to control the slave, because the slave owner is actually protecting the slave from the state. This sort of slavery could occur with illegal immigrants. Somebody is lured to the US with the promise of work, but the wages aren't enough to cover the illegal immigrant's debt to his smuggler. The immigrant is kept in a condition of chronic debt, and can't find more profitable work (to escape this condition) because of the threat of force from both the owner and the state. The state limits the slave to seeking work "under the table", limiting the work options available to the slave. The owner uses force and threats to discourage the slave from pursuing even that limited range of work options. This condition also exists in the US.

Anyway, I'd say that the institution of slavery exists more easily with at least the tacit support of the state, but condition #4 on my list shows that the relationship between the state and slavery can be a complicated one.

|7.10.05 @ 4:38PM|#

Isaac,

No, the slave trade was a private enterprise that needed government intervention to bring it to an end.
But what about labor unions? How do libertarians view workers' rights to collective bargain?

|7.10.05 @ 4:46PM|#

Sorry,Sam, to collective bargainING.

Jesse Walker|7.10.05 @ 9:14PM|#

You didn't address my question about workers' rights and unions.

I didn't answer it because it wasn't obvious what the question was.

Now that you've clarified, I'd say that libertarians generally support the right of workers to form unions but not the right of governments to enforce a closed shop.

I'm not sure what any of this has to do with Kelo.

|7.11.05 @ 12:38AM|#

If they want a subdivision, Farmer Bob's parcel is just as good as Farmer Bill's, and if neither of them need the money (yeah, right), then there's always Farmer Ted. -joe

Is this a reference to Sixteen Candles?

Relax, would you? We have seventy dollars and a pair of girls underpants. We're safe as kittens. -Farmer Ted

|7.11.05 @ 10:21AM|#

I'm afaid I'm going to have to take those underpants for, uh, a public use.

Thanks. Now, if you'll excuse me...