Clifford LevineOf Thorp Reed & Armstrong

Other than the constant chatter about the real estate bubble, the story that has garnered the most attention this year from the media and the public is the issue of eminent domain. In its June 5 to 4 decision on the Kelo v. New London case, the Supreme Court ruled that the Constitution did not prohibit state and local governments from using eminent domain to compel private land owners to sell their property–at fair market value–if public officials were using the property for legitimate economic development and revitalization purposes. After the ruling, Congress and a number of states responded with legislation designed to curb eminent domain in such cases. Clifford B. Levine, partner in the construction, land use and regulatory practices group with the law firm of Thorp Reed & Armstrong in Pittsburgh, believes that there has been unfounded overreaction to the Kelo opinion and that it could create detrimental consequences to redevelopment projects throughout the country. He has also served as the vice chairman of the City of Pittsburgh Planning Commission and its Zoning Board of Adjustment for 12 years now.

GlobeSt.com: What’s your take on Kelo?

Levine: I think there’s been an unfortunate overreaction and mischaracterization of what took place in Kelo and what the court actually did. One would think from reading press clippings that there had been a change in the law when, in fact, the Supreme Court followed precedent from the last 150 years and particularly the last 50 years concerning redevelopment. There really was no change in the law and if people understood this they would appreciate that there were really legitimate reasons why redevelopment would be appropriate as proposed. New London came up with a comprehensive plan that would have really helped the economic situation. Nobody was saying these people shouldn’t be compensated.

GlobeSt.com: Why was the Kelo decision misunderstood?

Levine: Legal issues were converted to sound bytes. And unfortunately, we’re reacting to them as opposed to real experiences. We’re trying to fix a problem that really doesn’t exist and dealing with hypothetical horror stories that just aren’t happening.

GlobeSt.com: How do you do help people to understand?

Levine: With much of American politics and government these days it’s hard because there’s 24-hour cable news. One of the ways I’ve tried to counteract that is to talk with people, talk with legislators and try at least to get them to understand what Kelo stood for, what the underlying facts were and how the redevelopment law works. If we’re really going to address issues like urban sprawl and the terrible land-use patterns we’ve developed over the years, we can’t completely take away all tools and opportunities for our urban areas to revitalize themselves.

GlobeSt.com: What’s your biggest frustration with Kelo?

Levine: We have eminent domain in our society. Nobody’s saying you can’t bulldoze these same homes to build a highway or a sewer line or a new prison. It’s the situation where the municipality says how about if we actually try to revitalize our community because for 40 years we’ve been building highways that cut through our city core and neighborhoods. What if we try to revitalize that and somehow that’s being treated as this horrible situation? The regions suffer.

GlobeSt.com: What are some projects that have used eminent domain?

Levine: Pittsburgh’s famous Golden Triangle is probably the first example of the use of eminent domain for urban redevelopment. It was called Pittsburgh’s Renaissance I. There was a subsequent Renaissance II in the 1980s that also relied on eminent domain. During my tenure at the planning commission there have been a number of projects where eminent domain was used, proposed or at least in the background in terms of being available as a tool for site acquisitions for urban redevelopment projects.In Pittsburgh there are really interesting questions raised. We have a number of situations where neighborhood groups have been frustrated by the dilapidation and deterioration of certain key commercial stretches. There was an opportunity to acquire property over a two- or three-block area and community groups worked with developers to build tremendous housing providing the opportunity to bring the middle class back into the city. It creates a vibrancy that not only is focused on those few blocks but then expands and can really turn around a whole neighborhood. I’ve seen those work over and over again.

We should welcome plans like Baltimore’s Inner Harbor–taking a dilapidated area and come up with some plan that really becomes exciting. First tourists come. It evolves into houses and businesses and that then spreads to benefit the whole area. Projects like Inner Harbor can be catalysts for an entire metropolitan area. That could not happen if the legislation that follows this Kelo hysteria is enacted.

GlobeSt.com: How will Kelo affect projects in the future?

Levine: I’m a true believer that 20 years from now where there’s a trend toward downtown living, this legislation would slow up that process to a considerable degree. Just with the announcement of Kelo and some of the backlash, there has been at least one developer backing out of a project. A lot of developers are leery of getting into what they perceive will go through years and years of litigation.

GlobeSt.com: How will the makeup of the Supreme Court affect future cases?

Levine: In the short term, O’Connor and Rehnquist were in the minority so it shouldn’t affect it at all. Eight of the nine Justices said if you want to eradicate blight, it’s appropriate to use eminent domain.

GlobeSt.com: Do you have any advice for those dealing with the eminent domain issue?

Levine: I urge public officials and those who care about urban areas and revitalization in our cities to take a deep breath and focus on what has been the history in your community and to really look and ascertain the success stories. And we shouldn’t throw out what has been a tremendous redevelopment tool simply because of some hypothetical fears. We should address legitimate fears and figure out strong redevelopment plans. It’s important to have condemnation not just for roadways and sewers, but for very meaningful redevelopment projects. There’s a narrow view that it’s only a public benefit if it’s a government use.

GlobeSt.com: What do you think about the state and federal legislation that came about after Kelo?

Levine: I think it’s very, very counterproductive. The federal legislation is potentially banning use of federal monies if there’s a commercial operator. You would basically eliminate a lot of the significant redevelopment that’s taking place in our urban areas. It produces a very anti-urban result. Is this good public policy? If you frame it that way, people would say they’d love to see their urban areas revitalized. It’s easy to acquire greenfield sites, but in an urban area, it becomes prohibitively expensive. Is it fair for a single homeowner to hold up an entire redevelopment project so he can recover five or six times the value of his home?