When I used to have more time on more hands (or more energy for my time) I did some blogging about eminent domain issues. One of those blog entries received a comment a few days ago that I wanted to address:
I appreciated your article on the TIF struggle in Des Planes. In Newton, IL, the mayor and his rubber stamp council (seven of eight) are making plans to establish a TIF district. I do not think that it can be legally done, but need help.
I’d love to help, but for a legal fight, you’re going to need help from a lawyer with experience fighting TIFs. I’ll get back to this.
I have read that the first prerequisite for a TIF is that it must occupy an area that, by statute, is blighted. The proposed district includes a strip of territory a block or more wide on either side of our two main streets (the business district); the public square and adjacent territory; and the “Pale Jumbo” Industrial Park (which has never had an occupant). There is no possible way that this, or any area our little country town of about 3,100 population, contains five of the necessary conditions to be, by statutory definition, blighted.
You’d think, and you’d hope, but it’s not so straightforward. The TIF act requires five factors out of a possible 13, and it’s not that hard to meet them. Cities hire law firms and consultants who are experts at putting together arguments in favor of TIFs. They’re really good at it. Take a look at the presentation from the consultants who put together the Des Plaines TIF. (Related documents are also available on the Des Plaines web site.)
Some of the 13 factors are vague and not that hard to establish. The easiest is probably Lack of Community Planning. In other words, if the town government has never interfered in an area before, that automatically gives them one of the five factors needed to interfere with it now.
Another factor is Excessive Vacancies. The unused industrial park alone probably meets this qualification. Heck, the International Plaza shopping mall in Arlington Heights was over 90% occupied, and it was still grabbed for a TIF.
The town government has two big advantages in declaring an area blighted. First of all, they can influence some of these factors in their favor. For example, they can refuse to allow curb cuts and zoning variances, and then they can argue that the property has a Deleterious Layout that’s not good for anything. Also, just by attempting to declare a TIF, they can discourage tenants from moving in, and they can discourage property owners from maintaining their property, leading to Excessive Vacancies and Deterioration.
The second advantage the town has is that they get to define the TIF district. So, for example, they can meet the requirements for lower-than-average property values (already true by definition for half the town) by choosing properties carefully. Combine a thriving corner restaurant with the empty building next door, and they get to take them both.
The proposed district also includes twelve acres adjacent to the city that the mayor proposes to purchase. This acreage was a bean field last season, and though it is slow to drain it is not chronically flooded; I feel certain that it can not be considered blighted. Are these fact alone sufficient to defeat the proposition? What should I do?
The town doesn’t have to prove that every single property meets the five-factor test, just all the properties combined. So, one polluted property, one dilapidated property, one obsolete property…
If you have any literature, suggestions or tips that you can let me have, I will certainly appreciate it. Also, if you know of anyone who is knowledgeable on the subject and who lives in the vicinity of Newton and would speak on behalf of the opposition at a hearing, please give me his name and address.
So far, I’m just trying to scare you into action. Now you want actual help?
The number one resource for all things eminent domain is The Castle Coalition, which is part of the Institute for Justice, the public-interest law firm that fought the Kelo case into the Supreme Court. They probably can’t give you legal help—there are too many cases and too few lawyers at the IJ—but their survival guide explains how to find lawyers and mount a public offensive against eminent domain abuse.
It’s important to keep in mind that although the main action is the legal battle, the war against an eminent domain abuse takes place on a much larger front. You need to try to win the battle for people’s hearts and minds, to put pressure on the town government.
Even more important, you need to try to shut off the money. In many cases, the town already has investors lined up to receive the property, often because the investors are pushing for the eminent domain action for their own benefit. You need to try to drum up bad publicity against the investors and subject the project to long delays to encourage them to do something else with their money.
Finding a way to get the developer out of the picture will often end the active eminent domain effort, even if you can’t win the legal battle. I know of a couple of cases where the prospect of delay and public ill-will caused the money to back out of the deal. The TIF districts are still there, and some actions are still pending in court, but without the money, nobody is actually pushing for the eminent domain action to continue.
So, start with the Castle Coalition Survival Guide and let me know what happens.