It's Not "Eminent Domain," But Is It Legal?
Southern Methodist University (where Prof. Postrel teaches) is the front-runner for the GW Bush presidential library, much to the chagrin of short-sighted faculty who don't like the president. In fact, a presidential library would be a huge research coup for the school, which is not exactly Stanford (which refused, foolishly IMHO, the Reagan library). The proximity to the Clinton Library in Little Rock would be a great help to scholars of the period.
Now comes word in the New York Sun that SMU is in trouble over trying to use eminent domain to obtain the library land. The headline on Meghan Clyne's article, which reflects the text, is "Lawsuit Over Eminent Domain Could Snarl Bush Library Plans." There is indeed a lawsuit, and it could indeed snarl those plans. But it has nothing to do with eminent domain. Clyne is missing a rather important public-private distinction.
What SMU did was buy up condos in a complex adjacent to the university. Over time, the university came to control the board. Disgruntled owners, some of whom are suing, alleged that the SMU-controlled board deliberately let the place run down so that owners would sell and give the university further control. (My memory of Dallas Morning News coverage is a little hazy, but I believe general expansion, not a presidential library, was the original reason for the university's alleged tactics.)
SMU's actions may or may not be legal, but they don't constitute "eminent domain" or justify a context paragraph about "increasing outrage among Republicans over the use of eminent domain and other coercive measures to obtain private property for public projects." The government is only involved here as an enforcer and interpreter of contracts. The real issue is what a private developer can do to acquire land currently occupied by condos, governed by a homeowners' association, rather than an apartment building or a bunch of independently controlled private homes.
Aside from my local connection, I find this question interesting because I sometimes wonder whether a bad condo complex--there are a few in my otherwise nice Dallas neighborhood--is, long-term, the worst aesthetic blight a neighborhood can have. An ugly house or apartment building will eventually get bought and torn down or remodeled, but condo complexes, because of their fragmented ownership, are much harder to change. When I originally read about SMU's tactics, I thought, Aha, there's the answer. You buy up condos in the complex until you have a controlling interest, in most cases a supermajority. But maybe that doesn't work. Interesting questions here. [Via D Magazine's FrontBurner.]