Condemnation Confabulation

The City of Montgomery made national headlines recently — and not in a good way.

The kerfuffle involves city actions that some pundits are framing as “eminent domain through the back door.” The phrase “eminent domain” sets off alarm bells in large numbers of people, particularly after the United States Supreme Court’s controversial 2005 decision in Kelo v. City of New London. That holding expanded the ability of cities to take private property from landowners, and people are always worried when government starts talking about seizing property. Around here, demolitions of some houses have created a bit of a national media firestorm about whether the City of Montgomery is unfairly seizing property. We wanted to learn more.

In the News

Our city’s anti-blight laws have been tossed into a swirl of often-vitriolic conversation about property rights. Radley Balko wrote the most important (and high-profile) piece on the issue so far, published in Slate on Sept. 17. The piece is far from a neutral take on Montgomery’s actions, but can be easily consumed as a way of understanding the basics of the controversy.

Balko, a senior editor at Reason Magazine, is well known for this blog, The Agitator, and has done some important ground-breaking journalism. Among his best work are the pieces he wrote about autopsies performed in Mississippi by a controversial medical examiner named Steven Hayne. (More of that good stuff here and here).

While Balko is a great source of info on forensic science and SWAT team raids (his other area of expertise), his article about Montgomery is poorly-written and on shaky footing. Yet, he joins hacks like Christina Walsh over at the right-wing Daily Caller (it was founded by Tucker Carlson) in using our fair city as an excuse for picking up the property rights torch of the Libertarian movement, which is ever-alert to those instances when the government might be doing something, anything, that impacts the lives of citizens.

Rounding out the tiny little echo chamber is the fact that a Birmingham’s Fox News affiliate (WBRC) ran a piece on the phenomenon. It can be viewed (at least for now) here.

The Fox story, like Balko’s Slate piece, quoted a University of Alabama history professor named David Beito, who seems to be an interesting character.  He’s a the chair of the state’s advisory commission to the United States Commission on Civil Rights, which sounds pretty prestigious until you really start wondering about states forming committees to chip in advice to some quasi-important federal commission.

Still, Beito seems like a legitimate scholar and he’s obviously worked up about our blight laws as racist tools of white folks to deprive black folks of their property. Heck, in Balko’s Slate piece, he calls Montgomery’s enforcement of blight laws, “a civil rights crisis.”

On The Ground

In support of their discrimination claim, folks have been commonly citing the case of a lady named Karen Jones and her grandmother. Jones claims that her house (once owned by her grandmother) was torn down by the city unfairly. Citing the demolition as an example of runaway government, she ran for city council, competing for the slot left vacant by Willie Cook’s untimely death. Although Jones received a total of only 34 votes in the election, she has been the city’s leading critic on this issue.

Jones, who is the “CEO” of a “grassroots organization” called Whom It Concerns, spoke at a rally against the blight ordinance at the end of August at St. Matthews Missionary Baptist Church. Also on the “media advisory” were Bieto and Christina Walsh, who is Director of Activism and Coalitions at something called the Institute for Justice, which bills itself as “the nation’s only libertarian, civil liberties, public interest law firm.”

Is Montgomery facing another “civil rights crisis?”

If so, the city’s blight ordinance isn’t part of it. The advisory for the August rally compares the struggle of homeowners against the city’s anti-blight campaign to the struggle of Rosa Parks to integrate our city’s buses. Kim Fehl, City Attorney for the City of Montgomery, thinks that such comparisons are overblown, to say the least.

“It isn’t even the same thing as eminent domain,” she said. “At the end of the blighted property process, the city will demolish a house as a last resort, but the land owner does retain ownership of the land, unlike in eminent domain when the government owns the land.”

Is this a racist crusade by the government to destroy the homes of poor black folks in the city?

“Actually, the blight process usually begins with a complaint from the neighborhood,” Fehl explained. “We get a claim, investigate, if it’s not up to code, we go to the probate office and find out who owns the property, send a notice, and most of the time, they end up working with the city before it ever even comes before the City Council.”

Not only are owners given repeated notice that their homes are failing to comply with basic city codes regarding building safety, they have a chance to work with the city to bring the buildings into compliance. And there are plenty of chances for the property owner to rebut the claims, drag out the process, and make changes to bring the property into compliance. Fehl said she had never seen a house go from notice to demolition in less than six months, and many cases take considerably longer than that, sometimes stretching into year-long disputes if the owners are struggling over the legality of (and funding for) the construction efforts.

And what are these mysterious “building codes” that can be used as the pretext for government to force property owners to spend money fixing up homes?

“All cities pretty much have building codes,” Fehl said. “There might be electrical problems that risk fire, or a structural problem where the whole thing is at risk of collapse. People in the neighborhoods see these places and they’re often empty and if they’re not boarded up, they can become criminal habitats and drive down property values. People don’t want them there.”

As for the highly-public allegations of Jones and others about the city tearing down the homes and sticking the home owners with the bill, Fehl pleads guilty. Sort of.

“We have to pay a demolition agent and then we turn around and pass that bill on to the non-responding property owner in the form of a tax lien,” she said. “That way, if the property is ever sold, we can get our money back and it’s not on the tax payer.”

Fehl says many of the people who have complained to the media actually haven’t been on the deeds to the properties in question.

“All we can do is go by what’s on the deeds in the probate office. If the property has changed hands and the deed isn’t recorded, it is possible that we have been sending a few of the notices to the wrong addresses. But the only information we have in contacting a property owner is by going off the address that is on the deed on file.”

This may be little consolation to someone who discovers that the city has demolished a beloved (albeit perhaps a bit run down) home and is now sticking them with the bill. Certainly paying for someone to take an action you resent likely feels like a major stick in the eye, adding insult to injury.

But it’s also the product of lapsed real estate record keeping and the failure to check the mailbox of the home you own (or examine any of the large notices that the city affixes to property facing condemnation). Fehl repeatedly emphasized the city’s history of working with property owners struggling to bring their buildings into compliance with city laws.

What Have We Learned?

The city has not done a particularly good job of defending its position in the media. This controversy hasn’t been a national tempest like previous civil rights issues, but it has gotten some national attention, particularly due to the “government takings” angle of the demolitions and the imposition of a racial dimension. It’s important that the city’s leaders come forward with a strong public defense of its blight ordinances and the due process afforded those facing demolitions. The city should emphasize that many of the complaints about these properties stem from neighbors of these homes, not from police surveillance looking for a loose gutter or broken window as an excuse to dispossess black people of their homesteads.

What’s more, the city should take the offensive, showing how these blight ordinances actually improve neighborhoods. In fact, the authority to demolish non-complying homes was given to to all municipalities in the state by Act 522 of the Alabama Legislature in 2002. Before becoming state law (Section 11-53B-3), that act started out as House Bill 42, which was sponsored by a graduate of the oldest African-American university in the United States, Wilberforce University.

Yes, Libertarians (which tend to be white conservatives of above-average means) are saying that Montgomery’s new anti-black “civil rights crisis” is because of state legislation sponsored by Rep. Demetrius Newton (D – Birmingham), a former member of the Board of Trustees of Tuskegee University who would likely be rather skeptical of the idea that his bill was actually a racist tool for unfairly targeting black homes for destruction.

So, thanks but no thanks to the outsider agitator Libertarians and property rights crusaders. We in Montgomery know what eminent domain is and we recognize tyrannical government when we see it. And we promise to stand up against racism wherever we see it. The anti-blight demolitions are not the product of some conspiracy, and Montgomery residents ought to speak up for the ability of our city to improve neighborhoods by getting rid of dangerous eyesores (for example in the case of Martha Manor over in our neighborhood). In other words, fight for your right to fight blight.

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