Eminent Domain, Northside Regeneration and the St. Louis American

by Michael R. Allen

The most recent edition of the St. Louis American‘s lively Political Eye editorial column deals with the Missouri Supreme Court consideration of the Northside Regeneration redevelopment agreement and tax increment financing bills, invalidated by Circuit Court ruling in July 2010. The Supreme Court took the case under advisement after a November 28 hearing and will issue a ruling early next year.

As a longtime observer of the Northside Regeneration project concerned with both its historic preservation and cultural impacts on north St. Louis, I was struk by one of the Political Eye’s statements:

The EYE is certain McKee would have taken the right to eminent domain had he been able to finagle it, but he was not. Both the Land Assemblage Tax Credit legislation that lavishly benefitted his project and the Northside redevelopment agreement with the city expressly forbid the use of eminent domain.

Actually the use of eminent domain has never been forbidden for Northside Regeneration by state or local statute — although Mayor Francis Slay has stated several times that he would not support the use of eminent domain on owner-occupied housing for the project. Section 99.1205 of the Revised Statues of Missouri, or the Distressed Areas Land Assemblage Tax Credit Act, mentions eminent domain only once. The definition of “eligible parcel” — the parcels for which the application can receive 50% of purchase price and 100% of mortgage interest costs — includes this clause: “Which has been acquired without the commencement of any condemnation proceedings with respect to such parcel brought by or on behalf of the applicant.”

In other words, a parcel acquired through eminent domain is not eligible for the Distressed Areas Land Assemblage Tax Credit, but a parcel acquired without eminent domain for a project that uses eminent domain to acquire other parcels is still eligible. The Distressed Areas Land Assemblage Tax Credit does not “expressly forbid” the use of eminent domain — it just doesn’t pay back half the costs of stealing private property.

The Redevelopment Agreement (ceremonially signed on the front lawn of the James Clemens, Jr. House in November 2009 by Mayor Francis Slay) in section 3.2 expressly does not authorize the use of eminent domain by Northside Regeneration LLC. Then the section’s language backtracks to name the other local laws that already authorize eminent domain for redevelopment, and states clearly that utilization of such authority is permissible for the project. Note the use of the phrase “additional legislation”:

The use of eminent domain will not be allowed pursuant to the Redevelopment Plan or pursuant to this Agreement. However, the use of eminent domain may be allowed (a) for a public use, as such term is used in Article XXI of the City’s Charter in accordance with additional legislation of the Board of Aldermen; or (b) pursuant to existing or additional legislation of the Board of Aldermen, if the Developer has pursued and exhausted efforts to voluntarily acquire property the Board of Aldermen deems necessary to implement one or more portions of this Redevelopment Plan and deems critical to the Redevelopment Plan’s success. The Board of Aldermen may approve such use of eminent domain under clause (b) above pursuant to other statutes, such as The Land Clearance for Redevelopment Authority Act, Sections 99.300 to 99.660 of the Revised Statutes of Missouri, as amended, or The Planned Industrial Expansion Law, Sections 100.300 to 100.620 of the Revised Statutes of Missouri, as amended.

The Board of Aldermen passed a redevelopment agreement that did not directly authorize use of eminent domain, while the language of the agreement essentially stated that such authorization was not necessary since other laws already would make eminent domain possible. (Among current officeholders on the board in 2009, only Aldermen Antonio French and Terry Kennedy voted against the redevelopment agreement bill’s final passage.)

The truth about Northside Regeneration and eminent domain is more complicated than the St. Louis American would lead us to believe.