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Advocates Want The City To Take Back Penn Plaza Through Eminent Domain, But It’s Complicated

Margaret J. Krauss
90.5 WESA
The Penn Plaza apartment complex was torn down in June 2017 to make way for a commercial and retail development. Advocates are urging the city to use the power of eminent domain to rededicate the land to affordable housing.

Randall Taylor and Jessica McPherson volunteer with Penn Plaza Support and Action, an advocacy group fighting to rebuild affordable housing at the site of the former Penn Plaza Apartments in East Liberty. 

On a recent Sunday afternoon, they sat in Enright Park, just over the fence from the 9-acre gravel lot that used to be Taylor’s home. He said it's hard for people to really understand the trauma of being displaced. 

“It's just a very difficult thing to live through," he said. "Sometimes I think too much about it and it really, really does hurt."

While the buildings are gone, Taylor, McPherson and other advocates say Pittsburgh officials can still salvage affordable housing on the site by exercising a power of government as old as the United States itself.

Since April, more than 500 people have written to Mayor Bill Peduto, online and through the mail, urging him to take the land through eminent domain and to build affordable housing there. Eminent domain has a long and complicated history in Pittsburgh, but advocates say it could be used at Penn Plaza to help solve the city’s housing crisis.

Credit Margaret J. Krauss / 90.5 WESA
90.5 WESA
Randall Taylor and Jessica McPherson volunteer with Penn Plaza Support and Action, a group that continues to oppose a planned commercial development on the land formerly home to lower-income residents.

Since 1966, the land at the corner of Penn and South Negley avenues has been owned by Pennley Park South, an affiliate of LG Realty Advisors, which is run by the Gumberg family. Three years ago, the company served eviction notices to more than 200 tenants, mostly seniors and people with limited incomes. The news ignited an ongoing discussionabout affordable housing in Pittsburgh, one that frequently employs “Penn Plaza” as a kind of shorthand for gentrification. The last of Penn Plaza’s residents moved out in March of 2017 and the buildings were torn down in June of that year.

LG Realty Advisors initially planned to redevelop the land with market-rate apartments and a Whole Foods grocery store, but that project was rejected by the Pittsburgh Planning Commission in January 2017. After numerous lawsuits and an extended mediation process between Pennley Park South, the city and some community groups, a development plan is again moving forward.

LG Realty has every legal right to build retail and office space on the site, but that doesn’t make it morally right, argued McPherson.

“The city, as they have in other cases, can step up ... and use the threat of eminent domain to bargain [the Gumbergs] into being good actors instead of bad actors,” she said. “They missed an opportunity here. But they can still make it right.”

The city unsuccessfully offered to buy the Penn Plaza site a number of times, but Mayor Bill Peduto said he does not want to use eminent domain to take the land.

“You should never use government in order to take somebody’s property,” he said. “The precedents that that would begin would be devastating to democracy.”

The political precedent could be problematic, but cities take land all the time, whether through negotiating voluntary sale or using eminent domain, said Gerald Dickinson. He teaches constitutional law at the University of Pittsburgh and studies eminent domain; he also sits on the board of nonprofit community development organization Neighborhood Allies. Dickinson said the state legislature delegated the power of eminent domain to municipalities.

“Clearly the law does permit government to identify and designate property that it needs for a justifiable viable public use and take it,” he said.

But, it’s complicated.

The Fifth Amendment to the U.S. Constitution says no person “shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” That means there are two main conditions for using eminent domain: buying the land for a fair price and providing a satisfactory explanation for why the government needs the land for public use. The latter is where things gets sticky, said Dickinson.

“The longstanding traditional use has been for what we call the kind of narrow conception of public use, that is a use that is by the public,” he said, citing things like utility easements or roads. For example, as recently as this year, Pittsburgh City Council authorized the use of eminent domain for an improvement project on Banksville Road. Doing so will allow the city to access utilities and to widen the road.

But there’s an additional interpretation of justifiable public use: a city can argue it has to take land for economic development. Throughout the 20th Century, Pittsburgh used eminent domain to advance “urban renewal” projects. In fact, they got so good at it, the city was lauded as an example of how to redevelop. A string of mayors bulldozed huge swathes of the city—the Point, the Lower Hill, East Liberty—to make way for office towers and new roads. In the process they forced out hundreds of businesses and thousands of residents, usually poor and usually African American.

It’s a dark history, said Dickinson.

“Eminent domain has historically has been targeted in those communities largely because of the idea that those communities don't have as much political power to push back,” he said.

Peduto said the ripple effect of those projects is precisely why he’s opposed to eminent domain.

"It was absolutely wrong that we were taking people’s homes… so why are you talking about taking somebody else’s property in order to do what you want?" Peduto said.

But McPherson rejects that kind of absolutist thinking. She said eminent domain could be used the opposite way, to include people rather than exclude them, said McPherson.

“Just because somebody swings a hammer at someone else's head does not make a hammer a bad tool,” she said. “If a hammer is used in the right way, for the way that it was intended, you build something good.”

However, there’s not much precedent for using the creation of affordable housing to justify eminent domain. In Boston, the Dudley Street Neighborhood Initiative was granted the power of eminent domain to create a land trust and build affordable housing. But it’s unclear how a similar move might play out in Pennsylvania, said Dickinson.

Penn Plaza Support and Action, Dickinson and Peduto all agree the city needs to meet the demand for affordable housing. But tools that could make that possible – zoning changes, tax abatements and a citywide land bank – are still being developed. Proponents of eminent domain say their plan could produce results right now, not in the distant future.

While advocates like McPherson say building retail and office space on the Penn Plaza site would only deepen disparities in East Liberty, developer and president of LG Realty Lawrence Gumberg disagrees.

He said in a statement that the Pennley Park South development will create jobs and contribute to Pittsburgh’s affordable housing trust fund, calling it “the right solution for the property and the city as a whole.”