The Private University and the Power of Eminent Domain

Vanderbilt Law Review Volume 27 Issue 4 Issue 4 - May 1974 Article 3 5-1974 The Private Use of Public Power: The Private University and the Power of Eminent Domain Charles Fels Special Projects Editor N. T. Adams Richard Carmody Margaret E. Clark Randolph H. Lanier See next page for additional authors Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Land Use Law Commons, and the Property Law and Real Estate Commons Recommended Citation Charles Fels Special Projects Editor, N. T. Adams, Richard Carmody, Margaret E. Clark, Randolph H. Lanier, James C. Smith, and Robert M. White, The Private Use of Public Power: The Private University and the Power of Eminent Domain, 27 Vanderbilt Law Review 681 (1974) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol27/iss4/3 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Private Use of Public Power: The Private University and the Power of Eminent Domain Authors Charles Fels Special Projects Editor, N. T. Adams, Richard Carmody, Margaret E. Clark, Randolph H. Lanier, James C. Smith, and Robert M. White This note is available in Vanderbilt Law Review: https://scholarship.law.vanderbilt.edu/vlr/vol27/iss4/3 SPECIAL PROJECT The Private Use of Public Power: The Private University and the Power of Eminent Domain The Vanderbilt Law Review wishes to express its gratitude to the Urban and Regional Development Center, Nashville, Tennessee, for its assistance and for the grant that made this study possible. TABLE OF CONTENTS INTRODUCTION ...................................... .682 PART ONE: THE PRIVATE USE OF EMINENT D O M AIN .............................................. 687 I. PRIVATE INTEREST GROUPS AND THE POWER OF EMINENT DOMAIN IN THE 19TH CENTURY .............................. 689 A . 1800-1850 .......................... ........... 690 B . 1850-1870 ...................................... 694 C . 1870-1910 .................... ................. 695 II. THE BROADENING SCOPE OF EMINENT DOMAIN IN THE 20TH CENTURY ................................................. 699 PART TWO: PRIVATE UNIVERSITY EXPANSION THROUGH EMINENT DOMAIN: SECTION 112 OF THE FEDERAL URBAN RENEWAL PROGRAM ....... 705 I. THE ORIGIN OF SECTION 112 ........................... 705 II. THE MECHANICS OF URBAN RENEWAL ................... 710 A. Public Participation ............................ 713 B. Qualifying an Area for Urban Renewal ............ 713 1. RehabilitationAreas ......................... 714 2. ClearanceAreas ............................. 714 C. Financingan Urban Renewal Project ............. 716 II1. SECTION 112 AND THE URBAN RENEWAL PROGRAM ........ 717 PART THREE: PRIVATE UNIVERSITY EXPANSION THROUGH SECTION 112; A CASE STUDY ............. 719 I. INTRODUCTION ......................................... 719 II. THE CITY OF NASHVILLE ............................... 723 VANDERBILT LAW REVIEW [Vol. 27 III. ORIGINS OF THE UNIVERSITY CENTER PLAN 1959-1961 .... 724 A. The Mayor of Nashville ......................... 725 B. Vanderbilt University ........................... 726 C. Early Planning ................................. 728 D. Application for a Federal PlanningAdvance ....... 730 IV. FORMAL PLANNING OF THE UNIVERSITY CENTER PROJECT 1962-1967 ............................................... 733 A. Surveying the Area ............................. 735 1. State and Federal Standards ................. 735 2. Application of the Federal Standards ......... 740 B. Delay 1963-1967 ................................ 745 V. LOCAL AND FEDERAL APPROVAL OF THE PLAN 1967-1968 . .. 752 A. The Plan and Its Advocates ..................... 752 B. The Response by the Neighborhood .............. 753 1. The Characterof the Project Area ............ 754 2. Understanding the Project ................... 755 3. Origin of the University Neighborhood A ssociation ..................................... 761 C. Passage of the Plan ............................. 762 V1. APPROVAL BY HUD .................................. 768 VII. IMPLEMENTATION OF THE PLAN 1968-1972 .............. 771 A. Vanderbilt Expansion ........................... 771 B. ClearanceArea Reaction ........................ 772 1. Eligibility Criteria .......................... 773 2. Administrative and Legal Remedies ........... 776 C. Formationof the PAC ........................... 778 VIII. THE LAST HURRAH 1972-1973 ....................... 785 IX. THE RESIDENTS' DAY IN COURT ........................ 792 A. The Constitutionality of Section 112 .............. 795 B . Due Process .................................... 797 C. Arbitrary and CapriciousAction ................. 800 1. The N H A .................................. 801 (a) Statutory Prerequisites ................. 801 (b) Objective Criteria ...................... 803 (c) Discrepancies .......................... 804 2. The Council ................................ 806 3. H UD ...................................... 807 X. CONCLUSION .......................................... 809 INTRODUCTION* Private property lay at the heart of the nation that was created * The authors of the present study would like to express their appreciation to Professor James F. Blumstein, Associate Professor of Law, and James W. Ely, Jr., Assistant Professor 19741 SPECIAL PROJECT in America in 1788. The American Revolution had been dedicated in no small part to the propositions that liberty and property were virtually indistinguishable and that the proper object of government was to protect both.' Indeed liberty and property were conceived to be almost identical, for the fullest expression of a man's liberty could only come through the free enjoyment of his own possessions. In what may have been the single most influential treatise in Ameri- can law, Sir William Blackstone observed that "so great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no not even for the general good of the whole community." '2 The original draft of the Declaration of Independence had recognized the unusual importance attached to private possessions by declaring that among the certain inalienable rights be- stowed upon all men by their creator were "life, liberty and property. ' 3 The federal constitution further recognized the signifi- cance of private property by providing that neither the federal nor later the state governments could arbitrarily deprive citizens of of Law, at the Vanderbilt School of Law for their generous and patient help during the research and writing that led to this article. Any errors in the text, however, are of course those of the authors alone. 1. As James Madison later observed in The Federalist, "Government is instituted no less for protection of the property, than of the persons of individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government." THE FEDERALIST No. 54, at 370 (J. Cooke ed. 1961) (J. Madison). The importance the leaders of the American Revolution attached to the institution of private property was characteristic of political and legal philosophies current in 18th century England and its American colonies. John Locke exercised a particularly important influence on 18th century views of the function of government, and Locke left no doubt that "The reason why men enter into society is the preservation of their property." Indeed as Locke progressed in the development of his political philosophy he declaimed that "government has no other end but the preservation of property," an observation that became an axiom of 18th century political theory and was endorsed by such prominent legal authorities as Sir William Blackstone and Lord Camden. J.W. GOUGH, JOHN LOCKE'S POLITICAL PHILOSOPHY 80, 95 n.2 (2d ed. 1973). For discussions of the philosophic importance of private property in 18th century America see R. HOFSTADTER, THE AMERICAN POLITICAL TRADITION 11, 13, 16, 31 (1957); C. RoSSITER, 1787: THE GRAND CONVENTION 61, 67-69 (1966); G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 404, 410, 411 (1969). For a modern view of the function of private property that is strikingly similar to that of the 18th century philosophy of property see Reich, The New Property, 73 YALE L.J. 733 (1965). 2. W. BLACKSTONE, COMMENTARIES ON THE LAW 74 (B. Gavit ed. 1941). Blackstone further observed that: The law will not authorize a violation of the right of property, even for the public good. Thus a new road through private grounds may be beneficial to the community, but it cannot be laid out without the consent of the owner of the land. In vain, may it be urged, that the good of the individual ought to yield to that of the community, for it would be dangerous to allow any private man, or even any public tribunal, to be judge of this common good, and to decide on its expediency. Besides the public good is interested in the protection of every individual's private rights, as modelled by the municipal law. 3. Thomas Jefferson later revised the phrase into the more felicitious and more familiar "life, liberty and the pursuit of happiness." Pennsylvania's constitution of 1776, however, proclaimed that "every member of society hath a right to be protected in the enjoyment of VANDERBILT' LAW REVIEW [Vol. 27 their property but instead must accord each owner the full

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