"The lesson here is that government does not need eminent domain to promote redevelopment."

Great news out of Nashville, Tennessee as the city's Metropolitan Development and Housing Agency agrees to drop eminent domain proceedings against Country International Records owner Joy Ford. At issue was Ford's refusal to sell her land to a private developer, which wanted to erect a new office building where Joy's record label and music publishing business now stands.

As happens all too often in such cases, once it became clear to local authorities that Joy wasn't selling, they decided to simply seize what they wanted via eminent domain, prompting the fine folks at the Institute for Justice to get involved on Joy's behalf. Yesterday, the two sides reached an agreement that takes eminent domain off the table. From The Tennessean:

Neither Ford nor [developer] Lionstone will receive any money in the settlement. Ford will, however, end up with slightly more land than she now owns, and more of it will front Music Circle East, where it can be accessed easily.

The pact will let Lionstone build a 225,000-square-foot office building with ground-floor retail on land surrounding Ford's property. The firm has already lined up two tenants, which will take up about 60 percent of the building, and it is in talks with banks for a construction loan, [Lionstone representative Doug] McKinnon said.

The trade will force Lionstone to redesign the tower's parking garage, but the firm has already asked its architect, Nashville-based Earl Swensson Associates, to come up with a new plan. Lionstone hopes to have those plans in place and start construction by the end of this year.

[…]

"This is an example of private parties' sitting down and coming together," said Scott Bullock, an attorney with the Institute for Justice, an Arlington, Va.-based firm that represented Ford. "The lesson here is that government does not need eminent domain to promote redevelopment."

Whole thing here. reason's interview with IJ founder Chip Mellor here.

Comments

[cunnivore]

"The lesson here is that government does not need eminent domain to promote redevelopment."

Er, the threat of eminent domain seems to have greased the skids pretty well, though. Not that I'm a fan of ED, but Ford probably wouldn't have given up the concessions she did for free if she didn't know her land would get seized otherwise.

[horsewithnonick]

On the other hand, the two parties "sitting down and coming together" could have happened much earlier had Lionstone not believed that they had the leverage of eminent domain to simply take what they wanted on gov't-mandated terms.

[cunnivore]

They did have that leverage. This is a case of them not wanting to wait for a court battle to start construction.

The city would have won the case eventually. I love the folks at IJ, but their track record on ED cases is not a successful one.

[hotsauce]

You have any specifics, cunnivore? And even if your claim is true, which I doubt, there's more to the ED fight than just winning in court. IJ is winning in the marketplace of ideas. Actual change comes incrementally.

[Episiarch]

Didn't Tennessee pass some legislation restricting eminent domain after Kelo? That might be a reason that they decided to settle rather than slug it out in court.

[SugarFree]

The best thing Nashville ever did for its economy was repeal the open container law for pedestrians. It's so nice to walk around downtown drinking a beer. (Are you listening, other cities desperate to revitalize your downtown?)

[joe]

I love the folks at IJ, but their track record on ED cases is not a successful one.

The legal arguments they bring to bear on ED cases are wholly implausible. Their purpose is to use the court system to generate political momentum. They leave an awful lot arguments on the table that could help their clients, but aren't ideologically acceptable - for example, procedural due process claims about the plan that leads to a taking. They don't want to acknowledge that there is a due process for that, so they leave that arrow in the quiver.

(Isn't it odd that we've gotten to the point that we need a modifier on the term "due process" to make it clear that we're talking about process?)

[R C Dean]

The firm has already lined up two tenants, which will take up about 60 percent of the building, and it is in talks with banks for a construction loan, [Lionstone representative Doug] McKinnon said.

How is that possible? I thought the credit markets were frozen?

The legal arguments they bring to bear on ED cases are wholly implausible.

I dunno. I find the argument that taking land for private use is not taking land for public use as allowed by the Fifth Amendment eminently plausible. As is the argument that no amount of due process can paper over a fundamental failure to satisfy the substantive requirements of the Constitution.

[joe]

Big buildings designed to wrap around little buildings whose owners won't sell are cool. Design constraints are a spur to creativity. Think of Fenway Park.

Especially 60 years later, when the little building is gone.

[joe]

Well, RC, you might have noticed that the legal and judicial community doesn't agree with you.

Wholly implausible in this universe, not Rainbow Puppy Island. It really doesn't matter that you can phrase it in a self-serving way.

Ladies and Gentlemen of the court, my interpretation of the relevant constitutional standard is the right one, and my opponent's is the wrong one, because my interpretation is the right one.

[economist]

That's right, joe, if the people in power think it is so, then it must be so.

[R C Dean]

Ladies and Gentlemen of the court, my interpretation of the relevant constitutional standard is the right one, and my opponent's is the wrong one, because my interpretation is the right one.

Speaking of phrasing it in a self-serving way . . . .

And how was my summary of the libertarian position "self-serving?" I was merely pointing out what the Constitution says ("public use"), observing the disconnect between those words and the development at issue, and noting that this is a substantive issue, not a due process issue.

You wouldn't say, after all, that torture was allowed as long as it was administered after "due process", would you? Arguing that torture is unconstitutional, but that the prisoner should get due process before being tortured, does not strike me as a winning legal strategy if your goal is to keep people from getting tortured.

[joe]

I was merely pointing out what the Constitution says ("public use"), observing the disconnect between those words and the development at issue, and noting that this is a substantive issue, not a due process issue.

...and then saying that, because that's your opinion, it isn't an implausible legal argument. Despite the fact that your reading has never once been upheld, and has been rejected several times, it wasn't an implausible argument to make before the court, because it's right, dammit.

You wouldn't say, after all, that torture was allowed as long as it was administered after "due process", would you? If there had been a long legislative history upholding torture as perfectly legal, and I was trying to stop a client from being tortured, I certainly would argue that. I wouldn't walk into court, argue the long-rejected position, and refuse to argue due process. If I was trying to get some press, on the other hand, and actually stopping my client from being tortured was secondary, then I'd probably leave the due process argument to the side, and put forward the doomed argument.

This isn't about what arguments you agree with, RC. It doesn't matter if you think Hechts and the rest of the cases defining public use going all the way back to the mill acts were wrong. That's the law, and if you walk into the Supreme Court putting all your eggs in the basket marked "overturn the central holding from a century and a half of caselaw," you are making an implausible argument, no matter how right you think your position is.

[cunnivore]

hotsauce, do you know how many ED cases IJ has taken on? Do you know how many they've won? It's not a high percentage.

In any case, I was attacking the ridiculous assertion that eminent domain played no role in this settlement. I guess being robbed at gunpoint, but not actually harmed physically, shows that transfers of wealth can happen without violence, too.

[joe]

Yes, econmist, the final word on how Supreme Court cases turn out lies with the justices of the Supreme Court.

This has been another edition of "Really Obvious Points That Joe Shouldn't Make."

[joe]

And even if your claim is true, which I doubt, there's more to the ED fight than just winning in court. IJ is winning in the marketplace of ideas. Actual change comes incrementally.

Yep, they are clearly more concerned with bringing about gradual change in the political arena than winning in court.

[Boston]

That's interesting joe, I would have thought that they did that. Looked it up, seems that they did lodge some procedural due process issues, just none for eminent domain cases (at least that I could see). Though, im not sure where you were going with the Fenway example.

[joe]

Boston,

I meant, Fenway gets its character from its odd shape, which was the result of being hemmed in by other buildings, which are now gone.

[Boston]

Ah, I thought the little building was refering to Fenway.

[Boston]

It seems like they might have used procedural complaints in some of there cases in New York .

[economist]

joe, one of these days you can actually point address my main argument.

I wasn't claiming that the judicial establishment doesn't have an expansive view of state power. I was merely pointing out that their views do not make reality. The problem with trying to stop eminent domain seizures by procedural complaints is that it implicitly accepts that the state has a right to seize private property when it suits the state's interests.

[joe]

As a matter of fact, economist, when the reality being discussed is the out come of Supreme Court cases and the understanding of case law, the views of the Supreme Court DO make reality.

The problem with trying to stop eminent domain seizures by procedural complaints is that it implicitly accepts that the state has a right to seize private property when it suits the state's interests. The bolded portion of your statement is reality. You don't have to like that reality, but if you're a lawyer representing a client's interest, you really should ackowledge it.

I addressed the very heart of your argument. Twice now. You just don't like the answer.

[joshua corning]

This has been another edition of "Really Obvious Points That Joe Shouldn't Make."

This is a state case based on state law. Not a federal case.

Kelo not included.

and this is another addition of "Josh points out how joe is playing a shell game".

Hey joe tell us once again how Fannie Mae stopped making sub-prime loans but be sure to leave out how Fannie Mae was still buying them up like mad.

[joe]

You must be thinking of someone else, joshua, because I've never written that Fannie Mae stopped making subprime loans.

Are you thinking of the times I asked you to explain how a bill that would have required Fannie Mae to buy more MBSs would have prevented the financial crisis caused by MBSs? Waht is your answer to that anyway, joshua?

This is a state case based on state law. Not a federal case. A New York State law, as a matter of fact. You know, New York State. The place that just upheld the NYT's takings case.

It's so cute when you think you've got me. It's like playing chess with my daughter, except I don't feel bad about taking your queen. But keep talking down to me. That's awesome.

[joshua corning]

Great news out of Nashville, Tennessee as the city's Metropolitan Development and Housing Agency agrees to drop eminent domain proceedings against Country International Records owner Joy Ford.

A New York State law, as a matter of fact. You know, New York State. The place that just upheld the NYT's takings case.

When did the NYT move to Nashville?

[joe]

Whoops, I was thinking about the Brooklyn Yards case.

[joe]

...while the discussion I was having with RC Dean was about federal constitutional law. You know, the Fifth Amendment he brought up?

[Joshua Corning]

Are you thinking of the times I asked you to explain how a bill that would have required Fannie Mae to buy more MBSs would have prevented the financial crisis caused by MBSs? Waht is your answer to that anyway, joshua?

Mind showing me where in this bill that Fannie Mae would be required to buy more MBSs?

http://www.govtrack.us/congress/billtext.xpd?bill=s109-190

And isn't the problem really that Fannie Bought MBSs indiscriminately? MBSs were traded in the past only that there were real market incentives to do due diligence on those products....it was only when Fannie Mae began buying them up without due diligence that the problems started.

From the looks of the senate bill cosponsored by McCain is that fundamentally it would require Fannie Mae to do its due diligence before buying these things.

Now i am a libertarian and of course i will consider the possibility that even though the intent of the bill is to force Fannie to do its due diligence but in actual practice would do nothing of the sort. Government fucks up all the time.

But if we are to give credit to dems for trying to get "poor minorities" (rich white democrats) into homes even though it ended up causing a financial crisis should we not at least give Republicans the credit for trying to stop that financial crisis?

And yes joe you just got your ass kicked for the third time.

To rehash:

I kicked your ass on pointing out that state law does not equal federal law

I kicked your ass by pointing out New york is not in Nashville

and this last one i kicked your ass by showing you how Dems fucked up our economy.

[economist]

No, joe, you merely restated your opinion that the state has a right to seize private property. Rights are not simply what courts, legislatures, or even constitutions say they are. That's why I think most legal defense efforts are misguided, because they are working a flawed system that can only give flawed results.

[economist]

Then again, city planners have a notorious disregard for private property rights. Those pesky holdouts aren't making way for progress!

[economist]

I would love to see how the left would react if a hippie commune got "eminent domained" for a railroad, factory, or shopping mall.

[economist]

Then again, we already saw how the statist left reacted to the seizure of lower-middle and working class homes to make way for high-end vacation homes, so I'm not really holding my breath.

[concedrd observer]

haver you ever considered making yourpoints in a single post you douchebag. youre obvoiusly not an economist so whydo you call yoursefl one you are a hypocrite.

[economist]

Well, observer, maybe you could proofread your posts. And I'm pretty sure your economic philosophy boils down to "big corporations evil, government good".

[economist (on meth)]

AAAagh!! Cosntitutional righst!

[economist]

Whoever posted as "economist (on meth)".
You're obviously not an accomplished humorist. Go screw yourself.