Consider this a plug . . .

As you may remember, I received a wonderful holiday gift of David Byrne's Bicycle Diaries.  I finally finished the book yesterday.  Such is the life of a young child's parent, I suppose.

The bulk of the book is a compilation of Byrne's diary-style musings, founded on his adventures in cities around the globe.  As an internationally recognized musician and artist, Byrne has traveled extensively across the Americas, Europe, and Asia.  When he travels, he packs a folding bicycle (such as this one) that he uses as a primary source of getting around his destination cities.  With this mode of transportation as a unifying theme, Byrne's writings delve into a diverse variety of subjects - art, music, politics, sociology, psychology, urban planning.  I described the book to one friend as both "geographically and substantively all over the place."  

While I very much enjoyed the diary aspects of the book and found Byrne's perspectives on his multifarious topics quite interesting, the epilogue continues to resonate in my mind.  In ten pages or so, Byrne managed to capture the essence of modern urban planning theory, a subject that I once spent an entire semester trying to grasp through the writings of the field's well-known theorists, activists, and policymakers.  But even more enlightening was how he found that essence.  Byrne admits that he sort of fell into his perspective and ideology about urban planning; he did not come to it through academic or philosophical study.  Rather, he developed it by living his daily life in urban America.  (New York City, to be exact.)  He's found that the aspects of urban planning that modern thought espouses - mixed use, reasonable densities, and choice in transportation - really do make life engaging and make it interesting to get out of bed everyday and see what's going on outside our doors.  Its a philosophy of incorporation rather than isolation.  It's about puttin' the "social" back in "society," y'all.  

So, in sum, I highly recommend Bicycle Diaries.  Pick it up, or at least go to the bookstore, sit down with a cup of coffee, and read the epilogue.  It will be time well spent.

Thanks to some thoughtful and astute gift-givers . . .

. . . for a topically relevant Christmas present - Bicycle Diaries!  I'm only a few pages in, but I can already tell that Byrne has a unique perspective on urban sociology and city planning, all generated through his bike commuting in cities across the globe.

See previous posts "Cities for Cycling" and its follow-up.

Let's Talk About E.D.

Have you talked to you city councilperson or state legislator about E.D.?

No, not that E.D., although we will bring up Viagra maker Pfizer.

Rather, I am referring to eminent domain, the state's power to seize private property for public use.  The concept looks, sounds, and feels very Big Brotherish.  It seems to fit better in a medieval monarchy or a World War era dictatorship.  But eminent domain is very much a part of sovereign power in the United States.  Its foundation is in the Fifth Amendment to the Constitution, which provides that a person shall not be "deprived of . . . property, without due process of law" and that "private property [shall not] be taken for public use, without just compensation."  So while this language seems to generally prohibit government taking of private property (a "taking"), it actually works to permit takings, so long as the property owner receives due process and just compensation in the action.

Why the out-of-the-blue eminent domain discussion?  E.D. has been on my mind because of three scenarios.

1.) Post-Kelo Irony: The 2005 Supreme Court decision in Kelo v. City of New London set the stage for the firestorm of E.D. debate in the last five years.  While some legal scholars believe that Kelo is a logical extension of the Court's prior eminent domain precedent, this particular case sparked public outcry in the name of private property rights.  And maybe the circumstances warranted that.  Briefly, the case arose out of New London's plans to redevelop its sliding Fort Turnbull neighborhood.  Plans for the revitalization of the neighborhood - including a waterfront hotel, restaurants, shopping, and marinas- were anchored to some degree by a new research and development facility for pharmaceutical giant Pfizer.  When some existing property owners balked at selling to the development authority (a public entity), the city exercised its eminent domain powers to acquire the properties.

What distinguished the New London acquisitions from more typical E.D. cases is the purpose - economic redevelopment rather than more traditional public buildings, roads, etc.  The real rub of the case is that the eminent domain powers were used to essentially transfer property from one private owner to another.  That fact, no doubt, further fueled the ire of the landowners who stood to lose their homes to the government plan.  The property owners challenged the city's authority to take their property for economic development.  The case went all the way to the U.S. Supreme Court, where, in a close 5-4 decision, the Court held that economic redevelopment was a valid "public use" under the Takings Clause of the Fifth Amendment.

But that ruling should not be considered as wide-sweeping as my statement makes it appear.  The justices, particularly swing-voter Justice Kennedy, relied on the fact that New London had formulated a "carefully considered" plan for its redevelopment of Fort Turnbull and that the prospective economic benefits would not be minimal.  Thus, while there would certainly be some incidental private benefit to the new developers, such as Pfizer, the public benefit of Fort Turnbull's revitalization justified the economic development takings.

Nearly five years later, the story lives on thanks to Pfizer's September announcement that it will close its New London facility in the wake of its merger with Wyeth.  What happened to New London's "carefully considered" plan that apparently won the day in 2005?  Very few of the other pieces of the plan have fallen into place in the last half decade, so Pfizer's announcement is, in effect, a grand slap in the face.  The news, no doubt, validates, at least in the minds of the Kelo plaintiffs, their resistance of New London's acquisition for the project.  It will almost certainly further galvanize property rights advocates who fight the use of eminent domain in the name of property owners.  

What interests me is whether Pfizer's departure and the seeming failure of New London's plan will change judicial scrutiny in eminent domain cases.  Only time will tell.  I should note that, in the wake of Kelo, 43 states enacted legislation designed to restrict eminent domain powers.  Regardless, leading scholars and practitioners believed that, generally speaking, a comprehensive plan backed by data and studies would allow a government entity to justify use of eminent domain powers, so long as it fit within permissible statutory schemes.  My question is whether the failure of New London's redevelopment plan will heighten the scrutiny with which such plans are reviewed.  Will governments seeking to effect an economic development taking be required, at least to some degree, to guarantee or predict success? Further consider the tough economic market, particularly for real estate, and governments could find a tough row to hoe for redevelopment and urban renewal projects.

(A corollary issue is whether we even want judges making such decisions.  Their role is to decide legal issues, not to make judgments about data, research, and projections that government officials spend months, years, and careers ruminating and scrutinizing.  I am going to sidestep my soapbox here, but this is certainly worth some thought.)


A final note before I leave Kelo.  A sequel recently went to the Supreme Court for appeal.  The Goldstein case arose from similar circumstances, this time in Brooklyn.  The Atlantic Yards project will house a new arena for the New Jersey Nets, office buildings, high-rise apartments, and a hotel.  Homeowners challenged the city's authority to acquire their property via eminent domain and transfer ownership to the project's developer, Bruce Ratner, also owner of the Nets.  The Supreme Court declined to hear the appeal.  Technically, that decision has no precedential value, but it does indicate that the Court is not ready to reopen the economic development takings issue.  Given that three new justices have come to the Court since Kelo (C.J. Roberts, along with Justices Alito and Sotomayor), it will be interesting to see the result if another eminent domain case does find its way to the Court in the near future. 


2.) RTD's use of eminent domain for FasTracks light rail expansion: The Regional Transportation District, the governmental entity that operates the Denver-metro area transit system, has been in the news as well.  RTD is empowered to use eminent domain to acquire property necessary for the operation of the local buses and light rail.  The district has garnered negative headlines in the last two years because of its exercise of that power as part of the FasTracks project, which aims to expand light rail service to more of the metro area.  Some homes and several local businesses have been impacted as RTD has sought to acquire property necessary for the new rail lines and related infrastructure.


Opponents cried foul on the moves, claiming that they were economic development takings, rather than actually necessary for transit infrastructure.  And those claims were not entirely inaccurate.  Transit-oriented development (TOD) is an element that RTD and other transit proponents hope to incorporate into the rail expansion.  TOD aims to incorporate commercial and residential elements into the communities surrounding transit.  Ideally, instead of a gigantic park-and-ride lot, a transit stop features some nearby living options and necessary commercial services.  At the least, perhaps there is a coffee shop or small grocer on the ground level of a parking deck.  Regardless of the form, obviously RTD will not be operating the Starbucks that goes in next to fair booth.


Capitalizing on the anti-E.D. sentiment that has been growing since Kelo, state lawmakers attempted to pass a bill that restricted RTD's eminent domain authority to stations, parking, and maintenance facilities.  The bill ultimately died in committee, but it - and the rest of the property rights resistance RTD is facing - illustrates that governments will endure strict public scrutiny, even if they ultimately face no legal scrutiny.  Use of the eminent domain power must be judicious, strategic, carefully executed and cleverly publicized in order to avoid a property rights maelstrom.

3.) Eminent domain of wind rights: Finally, the following case from Minnesota came to my attention.  There, a government-owned public utility is seeking to use eminent domain to acquire the "wind rights" necessary to establish a wind farm.  The utility owns the property on which the farm will sit.   But state law requires any wind farm owner to obtain the wind rights of adjacent property in order to ensure free flow of wind into the farm turbines.  As the second linked article indicates, some private wind farm owners have succeeded despite this regulatory twist.  The current case is intriguing because the use of eminent domain to acquire such rights is unusual.  It is also interesting because the state, through its utility, is seeking to promote renewable energy sources.  As one commentator suggests, maybe there are better ways to advocate for alternative energy.  Regardless of its shrewdness, he also notes that, even under a narrow interpretation, the acquisition of these wind rights is probably a constitutionally permissible taking.  I will be interested to see how this scenario is ultimately resolved.


I suppose my fascination with eminent domain is that it directly pits sovereign authority against private property rights, a concept whose role cannot be underestimated in this country's founding, settlement, and expansion.  While affirming private property rights and a person's right to due process and just compensation, the doctrine also recognizes that private property rights are far from absolute.  And rightly so, I think.  What good is government authority if it must yield to private interests?  As I said before, I do believe sovereign powers like eminent domain require careful consideration and judicious exercise.  I am certainly not advocating for abuse of power.  But I am advocating for a government's right to make assessments of and decisions about what best promotes the health of its community - socially, economically, philosophically, environmentally.  While controversial and often tough to swallow, tools like eminent domain are necessary to make those decisions reality.

Living With the Land: An Experiment Worth Watching

A new town is being developed outside Portland, Oregon, the goal of which is to chip away at the established boundary dividing urban and rural. This boundary is particularly pronounced in Oregon, where legally mandated urban growth boundaries (UGBs) set firm limits on the expanse of urban development into surrounding farmland and green space. If all goes according to plan in Damascus, the town will maintain active commercial farming in productive soils while less-productive tracts will sprout housing and other structures necessary in the town. There remain some questions as to whether the town will be able to legally accomplish its aims under Oregon's statewide land use regime. Proponents intend to be creative with the regulatory tools available to them, and, thus far, state regulators seem willing to at least entertain those ideas. Read more about Damascus in this article from OregonLive.com.

Aside from the legal and regulatory issues that I find interesting, the thing I want to applaud in the Damascus experiment is the idea of centering a community on the land where it exists - farmland - and fostering a lifestyle that incorporates what the land has to offer rather than subduing and altering the land to fit a lifestyle. Proponents in Damascas have visions of farmers' markets selling local produce, restuarants featuring those products, and education centers where residents can learn to cook with, use, and preserve the local items readily available to them. It would be a perfect model of the slow food movement here in the U.S., a movement that has quickly gained popularity in Oregon.

There are so many overlapping concepts embodied in the proposed development of Damascus that they are hard to segregate and pinpoint. Let me try to sum up my feelings with a few statements. Many of us spend a lifetime fighting against the land we inhabit and the habitat in which we exist. We want to grow green lawns in the desert. We want to raise crops suited to climates of far away regions. We want to do what we want where we want to do it, often without regard to the basic practicality of doing so, much less the myriad of potential consequences of that action. To an extent, the people of Damascus, Oregon, will be bucking those trends. Farming, already the predominant economic engine of the region, will continue to fill role because that is the use to which the land is suited. The products raised locally in accordance with local practices and climates will nourish the residents. As envisioned, Damascus would become a pocket of localization in a continually globalizing world. In doing so, that town would express to the world its commitment to community, to the environment, and to the general wellbeing that these concepts promote individually and in concert.

I will certainly be tracking the progress of the Damascus experiment.

Be sure to check out the OregonLive.com article, as it provides more details than I have in this post. "Bluring the Urban-Rural Line in Damascus," OregonLive.com, August 8, 2009.

Thinking Comprehensively About Development

In an interview with PBS's Blueprint America, Rep. Jim Oberstar discusses the current state of transit policy in the U.S., his theory on how that policy needs to be reformed, and how his Surface Transportation Authorization Act of 2009 would help steer the country in that direction.

I appreciate that Rep. Oberstar recognizes that land use and growth should drive transit development rather than the opposite. Though his bill deals specifically with transit funding and planning, the fundamental principle he seems to advocate is a comprehensive analysis of all aspects of proposed urban or suburban development. A common pattern in the U.S. today is for a new road to be built first, and development around that road comes later. This generally promotes piecemeal, spotty development. Such an approach really prevents planners from accurately projecting the needs of transit, utilities, and public services required for the development.

To me, Rep. Oberstar is promoting an approach that will strive, as much as possible, to get things right the first time. Comprehensive planning could help to avoid such problems like needing to retrofit a larger roadway or a rail system onto an area that is designed to accommodate it. Such planning relates to the sustainability of development. Are we promoting development that will be accessible, livable, and desirable for years to come? Or are we thinking only about capitalizing on opportunities in the short-term? Ideally, projects could be developed in a way that attempts to satisfy both the goals of attracting private investment and building a community that will become and remain a community rather than just another place on the map.

Thoughts on Neal Pierce's "Obsolete Notion of States?"

In his recent piece, "Obsolete Notion of States?", Neal Pierce asks the question: "Are America's state governments becoming obsolete?" Taken out of context, this question borders on absurd. The states are governmental institutions enshrined in the Constitution and a necessary component of the federal government (e.g., the legislature). Besides, what would the United States be without the States?

However, in context, Pierce asks a shrewd question that ought to be given due consideration. Are state governments the right place to seat control of everyday affairs? To clarify, again, Pierce is not advocating for the dissolution of state governments. Instead, under his scheme, state governments could concentrate attention on their "indispensable priorities." For example, he posits higher education systems, a truly state-wide institution, the general governance of which can be relatively similar across all locations in the state.

What Pierce does propose is to vest greater autonomy in regions as the state's political subsidiary. Thus, for instance, Denver and its surrounding suburbs and communities would ideally form a regional council of governance that would foster cooperation among the individual members as well as promote consistency of policies that cross municipal boundaries. In fact, such an organization already exists to address some of the regional issues (e.g., regional transit, regional planning, water issues) in the Denver-Metro area. See www.drcog.org for more information. Pierce does not indicate whether he believes such regional organizations would be or should be granted binding authority, and, if so, how that authority would relate to the municipal authority of its members. Would the regional councils serve primarily as advisory boards and forums for inter-municipal discussion? Or would the regional councils essentially be another level of governance inserted between the state and municipal governments? In either case, more autonomy is given to the local unit of government to recognize, confront, and address issues specific to the local unit, rather than relying on a state legal scheme that must attempt to adequately serve the distinct needs of urban and rural regions within the state.

For Pierce, this approach makes sense because life in the United States does not revolve around the state. Rather, in terms of population, economics, jobs, etc., life occurs in metropolitan regions. The interconnectedness of these metropolitan regions - logistically and philosophically - is thus a key aspect of continued growth. Perhaps under Pierce's scheme, metropolitan areas in close proximity could jointly develop laws and regulations to make it easier for businesses operating in both areas - establish one level of governance rather than force corporate citizens to deal with the regulations of multiple municipalities or multiple states.

A crucial point is that power still resides in the state government. Any autonomy given to regions or metropolitan areas must be granted by the state. State governments would still exist to manage state-wide institutions (e.g., higher education, as noted previously) and to represent the interests of its subsidiaries in the federal government. As Pierce notes, given the financial difficulty facing many state budgets, reducing the role of state government may be a timely means of easing those crises somewhat.

Taken in context, Pierce's question about the obsolescence of state governments may be a bit less absurd than previously thought. Nonetheless, this delegation of authority by the state to its regional or metro units remains quite unlikely. Does it make sense in that it conforms more to the realistic division of life in the United States? Yes. But many obstacles exist, not the least of which is rural resistance to a scheme that would no doubt increase urban progressive influence in the state and federal government. However, as citizens, we should be constantly mindful both of reality and aspiration and encourage our law and policy makers to be so as well.