« PreviousContinue »
ing personal property, loss of rentals due to anticipated taking, and other losses and damages which frequently are real and substantial.*
In an earlier day, the issue of incidental damages was less significant than it is today. In a largely rural society with limited governmental activity, acquisitions of private property for public use were relatively infrequent and, being limited largely to such purposes as erection of court houses, police stations, and school buildings, they rarely involved mass takings. At the same time, of course, government played a relatively inactive role with respect to the economic welfare of individual citizens--public assistance, public housing, and unemployment compensation, for example, were unheard of.
In contrast, in our present rapidly urbanizing society, acquisition of land for public use in congested, built-up areas is constantly expanding. The concern for improving housing and conserving and reviving older central cities has resulted in a vast federally aided urban renewal program. The needs of national defense and national economic growth have brought about large-scale federally aided highways, many of which involve clearing land in built-up urban areas. Expanding needs of cities and States require property takings for schools, parks, office buildings, streets, and parking. Municipalities are turning more and more to enforcement of minimum building and housing codes, which displace people when they require reductions in overcrowding or force demolition. Paralleling the accelerated pace of displacement, government at all levels has accepted increasing responsibility for assuring minimum standards of welfare, housing, education, and employment for all groups in the population.
LEGISLATIVE MEASURES TO BROADEN COMPENSATION
The growing impact of displacement and expanded government responsibility for economic and social welfare has resulted in an increasing feeling in many quarters that government should compensate people for incidental damages associated with displacement. Apart from the justification based on the differences between a forced and a voluntary sale, such reasons as these are cited:
The government uses real property for projects expected to benefit the public. The public is expected to bear the burden of the costs of the projects. Where individuals suffer clearly established financial losses and damages as a direct consequence of the projects, fundamental fairness requires the public to bear these losses and damages just as it bears the costs of property actually taken and other project costs
Since it is unfair for the government to take property physically without compensation, it is no less unfair to deny compensation for losses and damages which occur as a direct result of the land acquisition activity * * *.5
A further reason given is that failure to provide full compensation and assistance for displaced people is self-defeating when it frustrates achievement of other governmental objectives. Thus, failure to provide adequate relocation assistance for people who suffer from economic and social disadvantages makes more difficult the tasks of housing and welfare programs.
Most courts have not broadened their interpretation of just compensation to cover incidental damages. Where they have, the standard of compensation "operates unequally, with some condemnees fully indemnified while many others are forced to bear considerable losses." Changes in public policy, therefore, have been sought through the Congress and State legislatures. As early as 1933, in establishing the Tennessee Valley Authority, Congress authorized TVA to provide assistance to persons forcibly displaced by TVA acquisitions. During the past decade, Congress has passed piecemeal a series of laws authorizing certain agencies to make limited administrative payments for moving expenses and closely related losses. These acts have different provisions, and a number of agencies still are without authority to pay these expenses. The wide variation in provisions and the fact that many property-taking programs have no provisions at all were important factors leading to establishment of the Select Subcommittee on Real Property Acquisition of the House Committee on Public Works in 1961.
- Henry H. Krevor, A Congressional Study of Just Compensation, article prepared for Manual of the American Society of Appraisers (mimeo., n.d.), p. 8.
sIbid., p. 9.
A number of States also have taken legislative action to authorize compensation for moving expenses and personal property losses. On the whole, however, the willing seller-willing buyer standard remains the test in most States, and many incidental losses continue to be uncompensated.
Legislative action takes two different approaches: (1) authorization and direction for administrative departments to pay compensation for moving and related costs of relocation with some specification of the types of costs to be allowed and maximum amounts; and (2) expansion of the eminent domain statute to authorize property-acquiring agencies and the courts to include moving and related costs in awards granted to property owners and, usually, tenants. The Federal Government has followed the first course exclusively. State governments have differed, mostly following the course of administrative payments. Included in this group are New York, Connecticut, Massachusetts, and Ohio. Those using the eminent domain approach include Maryland, Jinnesota, and Pennsylvania. In all cases, the statute establishes maximum limits on payments for all or various categories of incidental damages.
A MEASURE OF THE RELOCATION PROBLEM In a joint survey of municipal governments in cities over 100,000 population in the summer of 1964, the Commission and the U.S. Conference of Mayors ? sought information about relocation experiences and problems, including the volume of displacement. The 100 cities responding indicated that 36,900 families and 5,800 business concerns were displaced by all types of governmental action in the past year. They estimated that in the next 2 years 125,000 families and 16,000 businesses would be displaced, a yearly average of 62,500 and 8,000, respectively. A summary of the figures by program is shown in tables 11 and 12. Urban renewal and highway construction are the main causes of displacement, accounting for 61 percent of anticipated family relocation and 88 percent of business relocation in the next 2 Fears.
$ "Eminent Domain Valuations in an Age of Redevelopment: Incidental Losses," Yale Lore Journal, LXVII (1957–58), p. 74.
+ Hereafter cited as ACIR-CM survey.
TABLE 11.—Displacement of families by governmental programs, past year and next 2 years (estimated), 100 cities over 100,000 population
A. PAST YEAR
* Includes public housing, parks, schools, parking ramps, and lots. Source: Questionnaire survey of Advisory Commission on Intergovernmental Relations-U.S. Conference of Mayors, summer 1964,
TABLE 12.-Displacement of businesses by governmental programs, past year and next 2 years (estimated), 100 cities over 100,000 population
A. PAST YEAR
*Includes public housing, parks, schools, parking ramps, and lots.
Source: Questionnaire survey of Advisory Commission on Intergovernmental Relations-U.S. Conference of Mayors, summer 1964.
From the start of the Federal urban renewal program in 1949 through September 30, 1963, renewal projects displaced 176,908 families, 65,657 individuals, and 39,399 business concerns. The Bureau of Public Roads reported that, in the first 17 months of its relocation assistance program adopted by Congress in 1962 for Federal aid highways, 16,397 residents and 4,601 businesses and nonprofit organizations had been displaced. Further, it has been estimated that 825,000 families and individuals and 136,000 businesses and nonprofit organizations will be displaced by the federally aided urban renewal and highway program alone between 1964 and 1972.10
A simple listing of governmental functions that involve displacement (highways, urban renewal, public buildings, code enforcement, public housing) reveals a number of intergovernmental problems. The Federal Government shares in financing and sets relocation requirements for several major State and local programs causing displacement. Urban renewal and the Federal aid highway program fall in this category, and together they are by far the most frequent displacers of people and businesses. Other such programs are public housing and mass transportation. Federal property acquisitions not involving grants-in-aid, such as those conducted by the Corps of Engineers and the Department of the Interior, cause relatively little urban displacement. The General Services Administration, on the other hand, is responsible for constructing Federal office buildings ana creates some relocation problems at the local level. Similar problems are created by State and municipal building projects.
The Federal Government also has a leading role in determining policies, setting standards, and providing funds for economic and social programs that affect the ability of displaced persons and businesses to readjust. Among these are the public housing program, FHA Joan insurance, urban renewal, public assistance, unemployment compensation, Small Business Administration programs, programs for the elderly, and protection of the rights of minority groups.
State governments conduct or participate in federally aided construction programs such as the interstate and primary-secondary highway program and the Hill-Burton hospital construction program. They are, of course, in a central position with respect to relosation power and activities of their local governments, subject to limitations provided by constitutional home rule and court interpretation. State legislators have essentially full power to aid, direct, and limit local actions in causing displacement and providing relocation adjustment. States have granted localities considerable latitude in undertaking activities that cause displacement, but they have done relatively little to authorize local communities to provide relocation payments and services. They have done even less to provide technical and financial assistance for such services.
Because local governments are the most easily accessible to displaced persons and businesses, it is not surprising that they bear the brunt of complaints for dislocation problems regardless of which agency or
* From unpublished data of the Urban Renewal Alministration. • Study of Compensation and Assistance, op. cit., lip. 263, 265. 20 See note 1 above.
level of government has been the cause. Also, local governments are affected by the policies and activities of neighboring localities as well as those of the State and National governments. Zoning, housing, and building policies of individual municipalities in metropolitan areas affect the capacity of their neighbors to provide adequate housing for persons displaced within their boundaries.
PROBLEMS CONFRONTING DISPLACED PEOPLE AND BUSINESSES
Relocation is of most concern in metropolitan areas, where people and businesses are concentrated, governmental acquisition of property is most expensive, and intergovernmental relations are most complex. Much of what is known about the problems of displacement comes from experience with urban renewal, the first major urban program in which government accepted responsibility to assure adequate housing for those displaced by property taking. It has had considerable influence throughout the country on policies and procedures for handling relocation activities by municipal governments. Largely financed by Federal funds, shaped by Federal law and regulations, but carried on with considerable policy discretion by local agencies, urban renewal has also caused the most problems essentially because displacement, especially in the early years of slum clearance, has been so central to its purpose. The urban renewal program has also been characterized by resourceful efforts to ease the displacement hardships it causes and to make relocation an integral part of a government property-taking program. Thus it is an appropriate source of information on the difficulties posed by forced relocation and on the success of efforts to alleviate them.
REHOUSING FAMILIES AND INDIVIDUALS
Cities responding to the ACIR-CM questionnaire were asked to report any problems they faced in relocating families displaced by urban renewal projects. By far the problem most frequently mentioned was lack of an adequate supply of standard housing, particularly for large, low-income, and nonwhite families. Conversely, among those indicating no problems, the most frequent explanation was that there was an ample supply of housing in the community, available for all types of need. A similar conclusion was drawn from examination of “workable programs” submitted to the Housing and Home Finance Agency by cities participating in the urban renewal program. The status of the housing supply suitable to the various needs of displacees is thus--not surprisingly—the most important element in the relocation problem. Two kinds of housing make up the supply: public and private.
LOW-RENT PUBLIC HOUSING
As of September 30, 1963, the Urban Renewal Administration reported that 54 percent of the families displaced since the beginning of the Federal program had incomes that met the eligibility requirements of low-rent public housing. Under the law, these families have priority for public housing. Only 19.7 percent of the total