Maybe a Mall Isn't a Public Use

In some good news on the eminent domain front, an Arizona judge has rejected a plan to seize land in Tempe for a shopping mall. "The anticipated private purposes and benefits outweigh any public benefit or purpose," said Maricopa County Superior Court Judge Kenneth Fields in a ruling released yesterday. "Profit, not public improvement, is the motivating force for this redevelopment."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    Damn activist judges!

  • ||

    'Tempe failed to show that the mall project constituted a "public use," Fields said.'

    Sounds like the judge actually considered the consequences of the plan, rather than just taking the city's word for it.

    In the fight between "public purpose" and "physical occupation by the public" as the marker of a public use, this decision is a point for the former.

  • ||

    Whoa! That was me. Don't know how that happened.

  • ||

    Even money says this gets overturned on appeal.

  • theOneState||

    The anticipated private purposes and benefits outweigh any public benefit or purpose

    Weird to measure public gain versus private gain on a balance, isn't it? What if it's better for private concerns but still pretty dang good for public ones? No dice?

    I think taking should be harder, not easier, but this is weird. That private concerns benefit shouldn't matter if it's a real public purpose and a legitimate taking, should it? The point should be that there is no legitimate public purpose (or use or utility or whatever your standard is), that the ONLY motiviation is private profit.

    Otoh, no new malls is good new malls.

  • ||

    How is a new mall a public benefit? I think that it could be easier argued that a new mall is hurtful to the public interest, if anything.

  • ||

    x

  • ||

    Frank, I would say that a new mall could be a public benefit if it promoted other public goals. For example, if a block worth of empty downtown buildings were turned into an urban "lifestyle center," as part of a plan to revitalize a troubled downtown. People go to the mall, they eat at nearby restaurants, people throughout the region get back into the habit of going out downtown, the rental and condo market in the area picks up because downtown is becoming a fun place...that sort of thing.

    If, on the other hand, the benefit being claimed is merely the jobs and economic activity of the mall itself, that is a private benefit.

    Which immediately raises the question, so who decides? If such a rule is established, every city and developer seeking to build a mall on the theory that they can make money off a mall will start making claims that their mall will spur a renaissance in the area. The Supreme Court in Kelo said that they would defer to the judgement of the locals - but with locals sometimes being so far in the pocket of developers, and with their planning staffs being bound to follow the directives of the local political leadership, there's an obvious conflict of interest there. On the other hand, what the hell does the state appellate court know about urban redevelopment? Judge Fields made a judgement call, but is that a call a judge can make?

  • ||

    If, on the other hand, the benefit being claimed is merely the jobs and economic activity of the mall itself, that is a private benefit.

    But wasn't that exactly the "benefit" claimed in the Kelo case, which you supported?

  • theOneState||

    will start making claims that their mall will spur a renaissance in the area

    Er...don't they do that already to help justify the tax breaks and other government freebies they "need" in order to proceed with the "risky" venture?

    Better to let economiic growth bring malls than to hope your mall will bring economic growth.

    Now, if they were building stadiums, they might have a point. Oh, wait...no.

  • ||

    joe,

    You'd know better than I would, has a new mall ever actually spurred a downtown renaissance? The two that I've seen personally that claimed to have that effect(Waterbury, CT, and Scranton, PA), didn't.

  • MP||

    A big problem with attempting to relate this to Public Use issues from the Constitution is that this was not a case decided in Federal court. Thus, the myriad of Arizona local and state laws regarding ED come into play.

  • ||

    Jennifer, I've stated a number of times that I had a problem with the level of deference the court gave to New London's plan. To the extend I supported the Kelo decision, it was on the "public use" definition being read to include public benefits outside of government ownership or occupation of the land by the public. In other words, I supported the holding that a "use that promoted a public benefit" counted as a "public use," but I did not support the holding that the court should apply a high degree of deference to the government's claims that a certain project would produce public benefits. Which puts me closest to O'Connor, I guess.

    theOneState, "Better to let economiic growth bring malls than to hope your mall will bring economic growth." The idea is to alter a condition that is driving away private investment. In some cases, the physical condition of an area makes it unattractive for private development, and a government fix can make the area more attractive.

    David, downtown malls-as-malls are a pretty bad idea - you can't just plop a suburban model into the middle of a city, because a city center can never compete with a suburban site in the areas of parking convenience and highway access. OTOH, the project to convert an old industrial complex on M Street to a mall was a major sput for the redevelopment of Georgetown. It was closely attuned to the existing layout and character of the urban district, so it was a success, and spurred further redevelopment around it.

  • ||

    Jennifer,

    I think joe supported the process being followed rather than the Kelo case itself.

    You're right though, that was the public purpose used as justification. I like to think of it as "let's drive the poor out and make this town nice enough so the poor can't afford to live here anymore. Then we can talk about how we've improved our tax base, raised the median salary, and restored our former glory with our new wealthier residents."

    It reminds me of Bridgeport's "revival", in that the idea of improvement largely centers around people who moved away when the projects were demolished.

  • MP||

    because a city center can never compete with a suburban site in the areas of parking convenience and highway access

    Never say never. I think the malls in Providence, RI and Stamford, CT are well integrated into the city. The parking they supply is a benefit to the downtown areas.

  • R C Dean||

    For example, if a block worth of empty downtown buildings were turned into an urban "lifestyle center," as part of a plan to revitalize a troubled downtown.

    If, on the other hand, the benefit being claimed is merely the jobs and economic activity of the mall itself, that is a private benefit.

    For the life of me, I can't see the distinction. Isn't "the revitalization of downtown" nothing more than the jobs and economic activity that is relocating downtown?

  • ||

    RC, the difference lies in whether the project will spur development throughout the area, or whether the project itself is the only development.

    The first is about the overall economic environment (and, yes, private individuals benefit from broad economic advances, as well as from every other public benefit), while the latter is about the economic prospects of a private party.

    It's the difference between taking land for a guy's driveway, and taking land for a street.

  • ||

    MP

    Exactly right. I use the the mall's garage in Providence whenever I go into the city. It's a hell of a lot more convenient than circling around searching for a spot.

  • ||

    "Profit, not public improvement, is the motivating force for this redevelopment."

    It sort of bothers me that divining the motivation is what led to this. All it does is tell developers and politicians that, regardless of the actual project, you just have to dress it up enough. It also bothers me that he says public *improvement* and not public *use*. Yes, I know, we went through all that before, it's settled law blah blah blah.

    Asking about urban malls actually revitalizing, here in San Diego people speak well of Horton Plaza, though since I wasn't here I can't personally attest to its effectiveness or how many giveaways there were. I'm always a little skeptical about these claims. I've certainly seen other downtown malls that failed miserably.

  • ||

    Which immediately raises the question, so who decides? If such a rule is established, every city and developer seeking to build a mall on the theory that they can make money off a mall will start making claims that their mall will spur a renaissance in the area. The Supreme Court in Kelo said that they would defer to the judgement of the locals - but with locals sometimes being so far in the pocket of developers, and with their planning staffs being bound to follow the directives of the local political leadership, there's an obvious conflict of interest there. On the other hand, what the hell does the state appellate court know about urban redevelopment? Judge Fields made a judgement call, but is that a call a judge can make?

    This is the point of hair-pulling frustration for me. (Metaphorically. Been bald, didn't like it, won't repeat it...)

    Let me make sure I follow this:

    * We can't trust the developers, because they'll cheerfully tell you why the project will be great for everyone

    * Ditto for the local government and its planners

    * The state courts have no reasonable ability to second-guess the local governments - what do they know, after all?

    * The federal courts are out of this

    The Constitutional issue is dead, fine. I'm at loss for good reasons why private-to-private takings shouldn't be utterly banned in order to protect the public, based on just your arguments, Joe.

  • ||

    Forget that. Street vs. driveway is a lousy example - too much extra baggage there.

    Think of it this way: a grant to allow a homeowner to buy an air conditioner to clean up the air in his house is a private purpose. A grant to allow a factory to install filters in its smoke stack is a public purpose.

    The former is like a mall qua mall; the latter is like a mall qua focal point of a redevelopment plan.

  • ||

    Aw, shucks, Eric. It must just be killing you that you can't think of a solution, and the only way out is to severely curtail the government's power. Need a hug? ;-)

    It's the same problem the courts have with any kind of "expert testimony." At the local level, such judgements are made by zoning boards and planning boards - people who (presumably) are experts in exactly this kind of judgement. Maybe something similar could be established at the federal level to review plans, or maybe the courts could adopt some higher level of scrutiny, combined with a panel of "special masters."

  • ||

    But what if the mall has a really sweet food court? You know, with a Cinnabon and shit.

  • ||

    Aw, shucks, Eric. It must just be killing you that you can't think of a solution, and the only way out is to severely curtail the government's power.

    As opposed to your tortuously pained reluctance to establish federal oversight of local development plans? :)

    I think this goes beyond the challenge of expert testimony, since that's usually about matters of science, not dueling unsupportable claims by competing parties ("this will revive our downtown!" vs "this will line their pockets!"). Or am I misunderstanding, and you're saying that there are real, quantifiable aspects of a development plan that can be analyzed to predict whether it will cause economic benefit to a community - aspects that could sensibly argued, before the fact, in a court of law?

  • ||

    But what if the mall has a really sweet food court? You know, with a Cinnabon and shit.

    Cinnabons could revitalize a downtown. Think of all the people following the seductive, sweet, cinnamon smell while frequenting local shops.

  • ||

    Speaking of eminent domain: good news out of North Dakota ...

  • ||

    "Think of it this way: a grant to allow a homeowner to buy an air conditioner to clean up the air in his house is a private purpose. A grant to allow a factory to install filters in its smoke stack is a public purpose."- joe

    The basic problem is it quite apparent that the air conditioner will primarily benefit the homeowner, while the smoke stack filters will improve general outdoor air quality. The difference between a development that is a giveaway to private interests and a revitalizing one is not that kind of obvious. Indeed, it is heavily dependent on speculation which may not come to pass even if the government was honest in what in it was trying to do. In that case giving governments a great deal of leeway in applying eminent domain for such projects is foolish and dangerous to the rights of the individual citizen.

    Gee, Ethel, those "streets" look an awful lot like driveways!

  • ||

    Now if we could just get rid of our snake Governer without having to send her to the goddamn US Senate (which is what she really wants, I'd bet a hundred dollars).

  • MP||

    Speaking of eminent domain: good news out of North Dakota ...

    Sprynczynatyk. WOW! That's the coolest name I've ever seen.

  • ||

    Sprynczynatyk. To ge rid of her all you have to do is say Kytanyzcnyrps.

  • ||

    "As opposed to your tortuously pained reluctance to establish federal oversight of local development plans? :)"

    Touche.

    As far as your (and MP's) question about the ability to dispute about the validity of a plan in a quantitative, non-speculative manner - I'd say it's roughly equat to, maybe a little be stronger than, the disputes about whether living in mommy or daddy's home would be best for a child's development.

  • dagny||

    I think if they're going to argue that a mall is for public improvement, they shouldn't the charge the public rent to put up a shop there, right?

  • ||

    As far as your (and MP's) question about the ability to dispute about the validity of a plan in a quantitative, non-speculative manner - I'd say it's roughly equat to, maybe a little be stronger than, the disputes about whether living in mommy or daddy's home would be best for a child's development.

    Oof. Well, this is my thought process:

    The kid has to go somewhere and you have two people with conflicting claims, so you have to go through those gruelling disputes and end up with an often arbitrary decision. It's often a farce, but it's either live with Mommy, live with Daddy, or live with Mommy and Daddy and have regular reminders of how they utterly hate each other.

    The land doesn't have to change ownership. The government just wants to give it to someone else. Why go through the hassle of a custody-battle style situation? Why not just disallow private-to-private takings?

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement