Dicta: Urban History and the Takings Clause

Professor Molly Brady
Associate Professor of Law

 An example of the practice of "grading." Photo courtesy of The City of Seattle Office of the City Clerk.

An example of the practice of "grading." Photo courtesy of The City of Seattle Office of the City Clerk.

Since deciding to become a law professor, I’ve been intrigued by bits of lost urban history and what that history can teach us about law. Studying a city and its development can reveal failed legal strategies, the political economy of local decisions, or the forgotten novelty of legal rules and doctrines that we take for granted. About four years ago, while reading a book for pleasure, I came across a picture that stopped me in my tracks. It depicted a house on top of what looked like a cliff, accompanied by a short byline noting that people often weren’t compensated when the streets in front of their homes were lowered (in some cases by close to one hundred feet). At the time, I was a PhD student, and I was about to go on the academic job market to become a professor. Though many of my advisors were slightly worried about my newfound passion for nineteenth-century roadways, I decided to spend the remainder of my doctoral years investigating “street grading”: an era of American infrastructural development in which municipal and state officials leveled streets to reduce the cost of street and train transportation. By raising and lowering the streets to make them level, these officials inflicted devastating injuries on property that the law needed to grow to accommodate. In a series of Virginia Law Review articles—one accepted before my arrival here and one forthcoming this spring—I have been exploring what the legal responses to grading teach us about property, land use, and constitutional law.

The first of my articles, “Property’s Ceiling: State Courts and the Expansion of Takings Clause Property,” explored one set of responses to the crisis posed by street grading. Early on, many jurisdictions did not award the landowners suddenly stranded by grading projects any damages or compensation. In fact, these abutting owners were often charged money in the form of assessments to finance the grading projects that essentially forced them to abandon their homes. In that article, I discuss an interesting judicial response to the perceived injustice of giving affected owners nothing: several courts, beginning with Ohio, began recognizing a “right of access” that they treated as a property interest. By recognizing access rights as property, grading projects that eliminated a property owner’s ability to conveniently access their homes and stores took property for public use, rendering the property owners entitled to compensation under the state and federal constitutions. This development is interesting for a lot of reasons, but—as any student of mine will know—I love questions about institutional capacity. Most scholars who study property think that the definition of property rights is a good subject for legislatures, who have informational and logistical advantages over courts. But the invention of the “right of access” is an outlier: a new property right formed by a court, ostensibly because legislatures could not be trusted to do the right thing. For decades, legislatures behaved badly by foreclosing avenues for property owners to obtain compensation. It is particularly troubling that several grading projects were instrumentally used to clear neighborhoods of “undesirable” people: rather than use eminent domain to condemn a low-income or immigrant neighborhood, which would be expensive, legislators could just initiate a regrade in the area, forcing people out of their homes with no payment and clearing the way for more desirable development. In such circumstances, I argue, courts are actually institutionally well positioned to step in and create new forms of property to protect landowners from political failures—even though legislatures may be the best creators of property rights in other instances.

The second article, currently titled “The Damagings Clauses,” is forthcoming this May in the Law Review. In this article, I explore a second response to grading issues: twenty-seven states amended or drafted constitutional provisions meant to address the types of consequential damages caused by these activities. In most cases, this involved adding language to the standard takings clause: these states often prohibit property from being “taken or damaged” for public use without just compensation. I have unearthed hundreds of pages of state constitutional convention debates indicating the hopes of the drafters and the concerns of those opposed to the new language. By and large, the language won out when introduced: drafters of these damagings provisions argued that it was unfair that someone suffering a de minimis appropriation of land would get compensation, but someone who lost 90% of their property value because of a non-appropriative activity (like a nearby regrade) would receive nothing. The language was remarkably popular. Strikingly, every single state that entered the Union after 1870 adopted the language, with the exception of Idaho. But in the article, I discuss a surprising fact: in most states, the language has nearly no meaning, adding no protection for property owners above the protection of the standard, federal Takings Clause. I explore how the meaning of these provisions was lost over time through judicial interpretation, and I argue that the language should be given more meaning than it currently has. The article is getting some interesting buzz—I was recently presenting at the ALI-CLE conference for eminent domain practitioners in Charleston, South Carolina, where it was discussed at several panels and where several attorneys told me they plan to cite it in upcoming briefs. More excitingly, I think that judges seem receptive to revisiting this forgotten language. Last fall, a Georgia Supreme Court justice wrote a concurrence in which he suggested revisiting the differences between Georgia’s damagings clause and the federal takings clause in light of the linguistic difference. Here in Virginia, at an oral argument last summer, one of the state Supreme Court justices noted “the big difference [between the federal and the Virginia state takings provisions] is the word ‘damage.’ That’s a huge conceptual difference.” I am excited to see if the idea gets picked up and causes courts to revisit their state constitutional interpretations.

I continue to be fascinated by questions of urban history and infrastructure; my current projects involve seventeenth-century roadways, eighteenth-century boundary markers, and nineteenth-century railroads. And I am always on the lookout for pictures and examples that suggest there is property history to be explored. If you have any, you know where to find me!

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mbrady@law.virginia.edu