To the Editor:
In their letter to the editor last week, Nate Macek and Bob Wood, co-authors of the Waterfront Plan Work Group final report, remind readers that the Work Group "was in broad agreement that eminent domain should play no part in the acquisition of private property along the City's Waterfront." This sentiment was not shared by all, as member David Olinger requested, to no avail, that the bracketed word be added to Group Recommendation 3.69, as follows: "Pursue eliminating the ODBC parking lot along the Strand [preferably] through negotiation with the ODBC."
At the Council's Jan. 21 hearing on the Plan, I asked the Council to adopt Mr. Olinger's version. In the ensuing Council discussion, Mayor Euille proposed to so amend Recommendation 3.69, and it was adopted as part of the 5-2 vote in favor of the Plan. Messrs. Macek and Wood apparently view this action as inappropriately grounded in the attitude that "eminent domain and negotiation [are] equal alternatives with one simply 'preferable' over the other." On its face, however, the revised wording does not suggest any such equality; negotiation is still the preferred option, but eminent domain is not ruled out, despite the determined efforts of the Work Group majority.
The Work Group majority's unqualified hostility to eminent domain is indefensible. In the classic case of its use — to acquire right-of-way for a new public road — eminent domain is a residual power that is needed to neutralize strategic efforts by landowners to hold out for windfall profits by rejecting a fair market value offer for their land. When that happens, eminent domain is used to take the land and the road gets built without delay. On a separate track and timetable, a judge or jury will decide how much the taken land was worth. Faced with this prospect, there is every incentive for all landowners in the way of the road to act reasonably in the negotiations that invariably precede resort by the government to exercising the power of eminent domain.
Perhaps the Work Group was thinking about cases where the "public use" requirement for invoking eminent domain is questionable, as in the controversial Kelo v. City of New London case decided by the Supreme Court in 2005. The Court, by 5-4, let stand the City's use of eminent domain to condemn neighborhood homes so that the land could be transferred to a private developer promising an influx of jobs and revenue along with its plans to redevelop the taken land.
A moment's reflection makes clear that any residual use of eminent domain to eliminate the ODBC parking lot would be very much like the classic right-of-way situation of "public use," not an urban renewal scenario with the City acting at the behest of a private interest. If there is one thing all sides in the Waterfront Plan debate agree on, it is that the most important attribute of a successful Waterfront Plan will be continuous pedestrian connectivity all along the Waterfront. Nowhere is this more critically important that in the vicinity of the foot of King Street, where pedestrians currently encounter a chain link fence around the ODBC parking lot that is as high as it is unsightly and uninviting. The only difference from the classic case is that here, the "road" need by the public is for pedestrians, not automobiles.
I am not privy to the City's negotiations with the ODBC, but we can all have far greater confidence that those negotiations will be successful if the use of eminent domain remains clearly available as a residual, but not the preferred, method of advancing the public interest in a successful Waterfront.
David W. Brown
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