FINAL_FY14_Eminent-Domain-Report

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Panelists’ Written Statements 59governments. One of the first was Alabama’s law of 2005 (followed up by another, more restrictive law,in 2006), which prohibited the use of conventional eminent domain for economic development. 3All of our members, regardless of partisanship, ideology, or race, agreed on the need to pursue the issue.As a result, the Advisory Committee convened two public forums. The first was in 2008 at the historic16th Street Baptist Church in Birmingham, Alabama. The church was an early meeting place for civilrights activists. In 1963, it was the scene of a tragic bombing which resulted in the deaths of four schoolchildren. During our meeting, several citizens from around the state came forward to sharetheir grievances about property rights abuse. One of these was Jim Peera, a developer in Montgomery,whose family had left Africa in the 1970s because of persecution of Asian minorities. Peera recounteddisturbing examples of how blacks in Montgomery, a city often called the cradle of civil rights, werelosing their property through an extensive application of Section 11-53B-1 et. seq. of the Alabama code.This provision leaves a major loophole for the indirect taking of property outside of conventionaleminent domain. The legislature did not repeal it as part of its post-Kelo eminent domain reforms. 4The first two paragraphs of 11-53B-1 et. seq. give some sense of its permissive nature:“It is estimated that within the municipalities of the state, there exist several thousand parcels of realproperty that due to poor design, obsolescence, or neglect, have become unsafe to the extent of becomingpublic nuisances. Much of this property is vacant or in a state of disrepair and is causing or may cause ablight or blighting influence on the city and the neighborhoods in which the property is located. Suchproperty constitutes a threat to the health, safety, and welfare to the citizens of the state and is animpediment to economic development within the municipality. ... It is the intent of this chapter to authorizea municipality of the state to proceed with the demolition or repair of a structure based on its own findings,and to set out a method for collecting the assessment liens so imposed.” 5In contrast to the standard eminent domain process, Montgomery property owners on the receiving endof Section 11-53B-1 et. seq. do not have any right to compensation, even in theory. Once declaring theproperty a nuisance, the city typically demolishes the structure and then bills the owner, often byslapping a lien on the property, for the costs of demolition including the carting away of the rubble. AsPeera pointed out, because the owners are often poor, many cannot afford to pay and thus have to sell orabandon the land. He charged that the city was demolishing buildings which, by any reasonablyobjective standard, were neither blighted nor a nuisance. Of course, this point is somewhat academicsince Alabama law gives governments maximum leeway to interpret the standards of blight andnuisance as well as to selectively apply them. 63 “Alabama Limits Eminent Domain,” Washington Times, Aug. 4, 2005,http://www.washingtontimes.com/news/2005/aug/04/ 20050804-120711-4571r/, accessed July 20, 2011; and Ilya Somin,“Controlling the Grasping Hand: Economic Development Takings after Kelo,” SUPREME COURT ECONOMIC REVIEW 15(2007), 245-47.4 Meeting Transcript, Alabama Advisory Committee to the United States Commission on Civil Rights, Apr.29, 2008, 260-270, copy available from the U.S. Commission on Civil Rights.5 Code of Alabama, 1975, 11 53-B1, http://alisondb.legislature.state.al.us/acas/CodeofAlabama/1975/coatoc.htm, accessedJuly 20, 2011.6 Radley Balko, “Blight Flight: Why is the City of Montgomery Condemning the Property of African Americans along aCivil Rights Trail?” Slate, Sept. 17, 2010, http://www.slate.com/id/2267743/, accessed July 20, 2011.
60 The Civil Rights Implications of Eminent Domain AbusePeera’s information played a key role in convincing the Alabama State Advisory Committee to call asecond public forum in April 2009 to focus on the situation in Montgomery. During that meeting, Peerashowed the audience a map of demolitions in a single year. Most were in a small area in Montgomery’smost heavily black areas, including Rosa Park’s old neighborhood. There were more than fiftydemolitions in 2008. The city council approved 29 more in 2009, 62 in 2010, and 18 by the end ofMarch 2011. Most notably, at this meeting, Peera also told us about the case of Jimmie McCall who, asa result, testified. 7In his willingness to fight city hall, McCall was a rarity among Montgomery’s property ownersthreatened with demolition of their homes. He has lived in the city for several decades. For years, he hasscraped together a living by salvaging rare materials from historic homes and then selling them toprivate builders. Sometimes months went by before he had a client. Finally, he had put aside enough topurchase two acres in Montgomery and started to build. He did the work himself using materialsaccumulated in his business including a supply of sturdy and extremely rare longleaf pine. 8McCall only earned enough money to build in incremental stages but eventually his “dream house” tookshape. From the outset, however, the city showed unremitting hostility. He almost lost count of theroadblocks it threw up including a citation for keeping the necessary building materials on his own landduring the construction process. More seriously, in 2007 he was charged under Section 11-B-1 et. seq.on the grounds that his home, then under construction, was a nuisance. 9The reaction of Montgomery’s city fathers seemed strange to McCall. Wasn’t he trying to fight blight bybuilding a new home? McCall suspects that wealthy developers are trying to get their hands on theproperty: a rare two-acre parcel on a major thoroughfare. Unlike countless others in similar straits,McCall fought back and hired an experienced local lawyer. He negotiated a court-enforced agreementwhich gave him eighteen months to complete the home. Only a month after the agreement took effect in2008, the city demolished the structure. Local bureaucrats, obviously in a hurry, did not give him noticewhen they sent in the bulldozers on the same day as the court order authorizing them. McCall appealedto the same judge who had allowed the demolition. Stating that she had been misled, she ordered the cityto 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. 10On April 15, 2010, I received a phone call from Karen Jones, another black property owner fromMontgomery. She related a case which was no less compelling than that of McCall’s. Only a day before7 Balko; Sarah Netter, “Montgomery Residents Accuse City of Demolishing Homes to Sidestep Eminent Domain Laws,”ABC News, August 26, 2010, http://abcnews.go.com/US/montgomery-residents-accuse-city-demolishing-homes-sidestepeminent/story?id=11470620&page=2, accessed July 20, 2011; Brandon Pizzola, Maffucci Fellow at the Institute for Justice,“Authorized Demolitions Since 2010,” copy in author’s possession; Meeting Transcript, Alabama Advisory Committee tothe United States Commission on Civil Rights, Apr. 29, 2009, 22-35, copy available from the U.S. Commission on CivilRights.8 Balko; Netter; and Benjamin Solomon, “How to Steal Land in Montgomery,” False Magazine, January 2008,http://falsemagazine. org/content/montgomery_al.php, accessed July 20, 2011.9 Balko; Netter; and Solomon.10 Balko; Netter; and Solomon.
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