But What About "Reverse-Poletown"?
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A while back we all celebrated the downfall of the Poletown doctrine of eminent domain in Michigan (i.e., the monstrous notion that the Constitution's "public use" requirement for public taking of private late could be satisfied solely on some perceived "net economic benefit to the community" rather than a bona fide public structure).
But what about this example of what could be called the "Reverse-Poletown Doctrine"?
Isn't this the bearded-Spock parallel universe equivalent of Poletown? Aggressive zoning generally, targeted zoning against a particular company, environmental impact statements, etc., are all bad enough. But to require a property owner to in essence "win back" his property rights a priori by having to prove a negative (i.e., no net economic harm) is exactly the same kind of perverse reasoning that was just soundly rejected in Wayne County v. Hathcock, the Michigan case that overturned Poletown. "Heads, we win -- tails, you lose."
Who exactly in Los Angeles will get to decide whether the "net economic benefit" is positive or negative? To whom? By what metrics? Over what geographic area? Over what period of time?
Wal-Mart should challenge the Los Angeles ordinance and should argue the Poletown refutation as an analogy. There is a limit, which we now see after Poletown, to how far government should be allowed to say "It's your property, but only in the ways we want it to be."
More praise of Poletown's demise at Hit & Run, Reason and Freespace.
UPDATE: Read about another Poletown-style disgrace here.
(Cross-linked with Outside the Beltway.)
But what about this example of what could be called the "Reverse-Poletown Doctrine"?
The Los Angeles City Council is trying a new tactic in the escalating battle over building or banning the new jumbo-sized Wal-Mart stores. Rather than blocking superstores outright, as some council members originally proposed -- a move that Wal-Mart could challenge in court or angry bargain hunters could overturn at the ballot box -- the council passed a hairsplitting law last week. It bars construction of retail-and-grocery superstores if a newly required analysis finds that they will harm a neighborhood economically more than help it.
Isn't this the bearded-Spock parallel universe equivalent of Poletown? Aggressive zoning generally, targeted zoning against a particular company, environmental impact statements, etc., are all bad enough. But to require a property owner to in essence "win back" his property rights a priori by having to prove a negative (i.e., no net economic harm) is exactly the same kind of perverse reasoning that was just soundly rejected in Wayne County v. Hathcock, the Michigan case that overturned Poletown. "Heads, we win -- tails, you lose."
Who exactly in Los Angeles will get to decide whether the "net economic benefit" is positive or negative? To whom? By what metrics? Over what geographic area? Over what period of time?
Wal-Mart should challenge the Los Angeles ordinance and should argue the Poletown refutation as an analogy. There is a limit, which we now see after Poletown, to how far government should be allowed to say "It's your property, but only in the ways we want it to be."
More praise of Poletown's demise at Hit & Run, Reason and Freespace.
UPDATE: Read about another Poletown-style disgrace here.
(Cross-linked with Outside the Beltway.)
Posted by KipEsquire on
17 August 2004
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