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Guiding Principles for Community-Based Decision Making

The DNI and BHA takings are easy cases. They demonstrate that community-based strategic planning can create a principled framework for using eminent domain to serve a genuine public purpose. While Kelly’s proposal for community consent may succeed in blocking uses of eminent domain that are detrimental to homeowners, standing alone it does not offer the kind of structured cost-benefit analysis and broad-based community engagement that are at the heart of the success of DSNI and OPRA—and, indeed, the Save Middle East Action Coalition in East Baltimore.

Residents presented with a take-it-or-leave-it proposal often lack the information they need to make a judgment on any basis other than perceived individual self-interest. The challenge for residents and planners alike is to evaluate whether the benefits of a proposed development project will truly outweigh the human, social, and economic costs.

For community consent to be informed, participatory, and focused on the interests of the whole community, municipal officials, residents (renters and homeowners), and civic and business leaders must engage in an intensive strategic-planning process focusing not only on a community’s deficits but on its assets, including both economic and human capital. This collaborative process has the potential to fundamentally alter any subsequent dialogue on eminent domain.

Most important, a comprehensive strategic plan identifying local strengths, needs, goals, and opportunities, including the economic potential of existing businesses, should precede an evaluation of the benefits and costs of future development. While Kelly’s community consent requirement would allow property owners (but not renters) to vote on a proposal, without an effective planning process residents may lack the tools needed to evaluate proposals thoughtfully and act on any basis other than immediate self-interest.

Where a proposed redevelopment requires displacement, state statutes should also mandate an analysis that weighs the full range of economic and social costs. Promises of new jobs are inherently speculative, while shutting existing small businesses can harm both the affected neighborhoods and the city as a whole.

Finally, human costs must be taken into account. How many people will a proposed taking displace? Will the harm disproportionately affect communities suffering from years of disinvestment and neglect? Will residents have preference in occupancy—and will affordable replacement housing be made available? Is comparably priced alternative housing readily available in the neighborhood, or will those displaced be pushed out of the community, adding to overcrowding and housing shortages in adjacent neighborhoods? To what extent are existing social networks and community institutions disrupted?

To fully protect residents, a project imposing a high cost in displacement and disruption of the social fabric should be deemed to fail the public-purpose test unless local stakeholders conclude that the proposed benefits are truly extraordinary and will serve the community on whom these human costs are imposed. If a taking meets this stringent test, in place of Kelly’s market-driven calculus, redevelopment statutes should require a high, fixed level of compensation: for homeowners, at least 50 percent above appraised value, and for renters, double the benefits otherwise mandated under the Uniform Relocation Act.

In the context of intensive community engagement, eminent domain has proven a powerful mechanism for positive change and a catalyst for both resident empowerment and market-based investment. Tying the use of eminent domain to a structured, in-depth planning process, focused on local assets and resources, will help avoid the devastating consequences of past urban-renewal schemes, while empowering residents, CBOs, and business leaders to help shape the future development of their communities.

As one proud DNI homeowner declared, “Having people have the power to make decisions about their neighborhood—it’s so empowering.” Legislative protections for community residents need to assure that residents are provided the information, tools, and decision-making framework to wield that power for the benefit of the entire community.