Nicole Gelinas has an interesting article on the expansive use of “blight condemnations” in New York. As she points out, New York courts have defined blight so broadly that virtually any area can be designated as such, and then condemned. This has created massive opportunities for abuse by politically connected interest groups who can use eminent domain to get the government to take property they covet.
Gelinas has an extensive discussion of two famous recent New York blight condemnation cases: the Atlantic Yards case, and Columbia University’s efforts to acquire property through condemnation in Manhattanville. I have written about both extensively. See here for my analysis of the Atlantic Yards decision, and here for the Columbia case. Both posts include links to earlier cases.
Unfortunately, New York is far from the only state that defines blight broadly enough to justify the condemnation of almost any area. As I discuss here and here, numerous other states have similar laws. This enables many state legislatures to pretend that they have banned Kelo-style “economic development” condemnations even as they allow them to continue under the guise of alleviating blight.
Mark N. says:
In the 3 1/2 years since you wrote that Legal Times piece, have there been any significant additional restrictions on blight condemnation either from legislatures or courts? I’m not able to find any in some brief research.
February 25, 2010, 8:08 pmJ. Aldridge says:
Blight condemnations is good policy (example: actions aginst slumlords), but with all policies can be politically abused. People should insist on narrow blight definitions and vary narrow definition of “public use” that prevents property from being taken on behalf of third parties, or for the advantage of some third party.
Used to be great outrage over giving private parties direct eminent domain powers and that practice was given up. People just need to raise a fuss that leads to constitutional reforms.
February 25, 2010, 8:42 pmNicole Gelinas on Blight Condemnations in New York | Liberal Whoppers says:
[...] here: Nicole Gelinas on Blight Condemnations in New York [...]
February 26, 2010, 12:04 amDavid Sucher says:
Yes she has written a good article except for her gratuitous anti-liberal spin.
All politicians like something for nothing and gimmicks and give favors to their supporters.
Misuse of eminent domain has nothing to do with, as she writes, “Eminent-domain abuse, dangerous though it is, is a symptom of a deeper problem: government officials’ belief that central planning is superior to free-market competition.”
Government officials have no guiding principles of “central planning” except the guiding principle of careerism and opportunism.
February 26, 2010, 2:09 amDavid Sucher says:
“Blight condemnations is good policy…”
Why not use abatement rather than condemnation? It is a whole lot simpler and cheaper than abatement.
In fact if officials truly care about “blight” then they can abate nuisances.
The only problem with abatement is that it does not act to transfer property from one party to another (i.e to “another” who is a friend or someone who wants to be their friend.)
February 26, 2010, 2:16 amSammy Finkelman says:
What I want to know is: Wasn’t this obvious 50 years ago? Wasn’t this obvious from the get-go? What’s really new about what Nicole Gelinas is saying?
As the saying goes: She just discovered America?
For that matter, there is the related question of why did anyone ever believe in “slum clearance” as an improvement?
I suppose all of this might have bene plausible at one point, to someone who didn’t live in those neighborhoods, but it hasn’t been at all plausible for at least 40 years.
February 26, 2010, 12:37 pmDilan Esper says:
The only problem with abatement is that it does not act to transfer property from one party to another (i.e to “another” who is a friend or someone who wants to be their friend.)
While I can’t say I am a fan of blight condemnations, this sentence overstates the issue. In fact, there can be a HUGE advantage to condemnation over abatement, which is that blight is often not isolated to one specific property. If you do abatement, you have to go ahead and have every property owner abate, and if they don’t do it, you might throw them in jail or fine them, but the blighted property remains, which then reduces the incentive for neighbors to abate.
Whereas if you condemn, you can then redevelop the entire neighborhood in a fashion that is not blighted. That’s a huge advantage in attempting to solve blight, which is often a form of collective-action problem.
The disadvantages are that these sorts of deals are rife with corruption (as you insinuate) and governments define any parcel that they lust after as “blighted” (the Kelo problem).
February 26, 2010, 1:53 pmDavid Sucher says:
I see Dilan’s point: yes condemnation (versus abatement) does offer a huge “advantage” and is more convenient. Of course so does shooting criminals before a trial. “Convenience” is not and should not be the issue in legal or urban planning terms.
The big issue and irony — beyond the myriad problems of eminent domain — is that governments simply are not capable of using those powers in neighborhood planning. I am not talking about the injustice or corruption involved with condemnation. I’m simply saying that there is no historical track record that (as you say) “…you can then redevelop the entire neighborhood in a fashion that is not blighted.” The reality is that tabula rasa planning in the vast vast majority of such efforts lead to tepid and boring (or worse) neighborhoods and in some cases (Pruitt-Igoe) even torn down. Interesting, healthy, diverse neighborhoods simply cannot be created out of raw land by government (or any one corporation or institution, in fact) no matter how well-meaning.
Contemporary urban planning theory suggests that slow evolutionary redevelopment is cheaper and better — and that does not require area-wide condemnation or even area-wide abatement.
February 26, 2010, 2:47 pmDilan Esper says:
I see Dilan’s point: yes condemnation (versus abatement) does offer a huge “advantage” and is more convenient. Of course so does shooting criminals before a trial. “Convenience” is not and should not be the issue in legal or urban planning terms.
I think you are belittling this way too glibly. If we assume urban blight is a problem at all (perhaps you believe that it is not), then you look around for solutions. And the problem with abatement is that, as I pointed out, there are pretty strong first order reasons why it doesn’t work very well.
Then you have another policy, using eminent domain power to condemn and redevelop. This is a much more serious infringement on property rights than an abatement order. And it can have pretty bad second order effects (governmental favoritism and the expansion of the definition of “blight”). But it isn’t simply a matter of “convenience” that governments choose it. It isn’t even simply a matter of wanting to pay off politicians’ friends and supporters, though clearly that is an ingredient in the process. They choose it because it works, whereas abatement often does not work.
EFFECTIVENESS of a policy isn’t really fairly characterized as “convenience”. There are plenty of reasons– many of which I would agree with– why we have to be cautious about choosing governmental policies that may be effective but also are susceptible to abuse and impose serious hardships on people’s rights. Indeed, this is an argument I make in the War on Terror and on crime and punishment issues all the time. But you can make that point without belittling the reason why redevelopment is such an attractive tool. It actually can solve a problem that less intrusive solutions are more likely to be ineffective at solving. That’s not “convenience”. That’s a lot more than that.
February 26, 2010, 6:31 pmDavid Sucher says:
Issues of law, equity and justice aside, what strikes me is that eminent domain as a tool of neighborhood redevelopment is not an effective tool. Eminent domain as a matter of policy is not effective, for a host of reasons.
Dilan, I believe that you claim that condemnation in reality works to redevelop neighborhoods — not that it might or possibly work, not that in theory reasonably, but one can claim that it is an historic fact: eminent domain has worked to redevelop neighborhoods.
If so, could you please offer some specific examples? of successful (and there are many measure, so take your choice) neighborhood redevelopment which have been essential in using condemnation? Anywhere in the USA? Where have been the wonderful results?
I don’t think you will find many if any. But empirically, and reality-based, I don’t think that they are such efforts in which eminent domain was dispositive. If I am wrong, then fine and demonstrate the value of eminent domain on an historical basis.
There may have been neighborhood redevelopment based on government effort which have been
1. rousingly successful
2. essential to condemnation.
But I can’t think of any. Can you? I am genuinely curious.
February 26, 2010, 11:39 pmBenjamin Hemric says:
As I was composing my comment off line, it seems David Sucher (Hi, David!) stole my thunder! Here’s my comment anyway:
I realize that people are talking from a legal perspective here and the main focus is whether something is legal / constitutional or not — not whether it is actually a good policy or not. But since people seem to be making assumptions about the “usefulness” or even the “necessity” of using eminent domain to fight blight in order to stimulate economic development, I think it would be useful to hear about examples of where people believe this has actually happened. (In other words, people should cite examples where eminent domain has been used successfully to fight blight in order to stimulate economic development — examples where no other approach would likely have been equally, or even more, successful.)
Although I haven’t done a study of the use of eminent domain to fight blight for economic development (but am interested in finding out about any such studies that people here may know about), it seems to me that such examples are extemely rare — or maybe even non-existent. Judging at least from an off hand recollection of the history of the City of New York, for example, I can’t think of any instances where it has been done SUCCESSFULLy or, in maybe some borderline examples (where it “appears” to have worked, where other approaches wouldn’t have worked out just as well or even better.
I should point out that I’m not talking about the use of eminent domain for traditional uses new public parks, new roads, new schools, new police stations, etc. Not only is the use of eminent domain for such public uses more “legitimate,” it also seems to be more successful, actually, in stimulating economic development too. Rather I’m talking about uses of eminent domain for conscious attempts at economic development.
It seems to me that government just doesn’t seem to be suited to the task of economic development. (Perhaps this is due, at least in part, to the two different and contradictory ethical systems and mindsets, one for the governmental sphere [the "guardian syndrome"] and one for the commercial sphere [the "commercial syndrome"], that Jane Jacobs describes in her remarkable [and very enjoyable] book on ethics, “Systems of Survival”?)
Sat., 02/27/10, 12:40 a.m.
February 27, 2010, 12:40 amUrban economist says:
J. Aldridge says:
“Blight condemnations is good policy (example: actions aginst slumlords)”
Why do you think actions against slumlords is necessarily good policy. To protect those who live in slums or those who live next to slums. As for protecting those who live in slums the problem is that they can often only afford to live in slums. So by condemning a slum you are effectively making people homeless.
As to protecting those who live next to slums could you just use civil nuisance? In my law and economics course we studied nuisance (specifically some retirement community in Arizona versus a cattle yard, it has been a long time), but in terms of private individuals. Could a city as representative of individuals use the courts to do shut effectively condemn those properties that were causing a nuisance? At least then they would have to “prove” their case and it wouldn’t just be an arbitrary decision of some politician or bureaucrat.
I am sorry if I messed up my terminology, but it has been a long time since I took that law class, and I hope you all understand me well enough to teach me.
February 27, 2010, 1:44 amDavid Sucher says:
Ilya,
I wonder to what extent (if at all) do the anti-condemnation attorneys marshall the evidence which Hemric and I are suggesting? i.e. we both claim that any legal issues aside, but is it true that eminent domain for “economic” and “neighborhood” development simply have no track record of success? And that such argument has been argued before the courts?
Such a finding would seem to be legally significant (“in the face of the weight of history such a policy favoring broad use of eminent domain is not reasonable”) but certainly as background penumbra it seems to me that any reasonable judge is going to wonder.
I surmise that many judges somehow assume that yes the broad eminent domain policies do in fact work. Yes they claim that they won’t second-guess the legislative authorities, but most judges also (I bet) assume that at least in many cases such neighborhood development plans based on ED do in fact work.
So has the argument that Hemric and I claim (“In addition, your Honor, ED just generally doesn’t work.”) actually been used before the Courts?
February 27, 2010, 3:15 pmDilan Esper says:
David and Ben:
I don’t claim to be an expert in community redevelopment, so I can’t provide any statistics or hard data for you. I can tell you about anecdotal examples I know about– for instance, in my hometown of Burbank, CA, there was an absolutely decrepit 41 acres in the center of town that was condemned and redeveloped into a very nice mixed-use development.
I think your arguments are really ideology dressed up as empirical claims. You guys don’t like infringements on property rights– I get that, and indeed would like to see a much greater burden imposed on governments who want to do this sort of things because of the corruption and overbroad definition of “blight” problems. But to claim that this has “never” worked is absolutely silly– it’s plainly obvious to anyone who doesn’t have complete ideological blinders on that it’s possible for government to condemn something in bad shape and build something better on the property. That fact may be ideologically inconvenient for libertarians who would like to think that the government can never achieve a better result than the private sector, but it is nonetheless true.
February 27, 2010, 8:27 pmDavid Sucher says:
Dilan.
February 28, 2010, 3:33 am1. You are wildly incorrect that I (for one) my “arguments are really ideology dressed up as empirical claims.” Just ain’t so. I am a capitalist and a liberal and it’s obvious that an orderly development context (including land-use laws) is essential.
2. It’s a bit bizarre that since I specifically wondered above if my own personal observation — that successful neighborhood development has rarely actually been used or needed by eminent domain — is supported by scholarly work. I’m asking for broad-based scholarly evidence and admit I don’t have it though I have observed a lot.
3. I think that the 41-acre project which you mention is “Burbank Town Center.” If so, itt appears to be a typical shopping center with a Macy’s and California Pizza Kitchen (And I do like both, fwiw). Eminent domain for a shopping center? That is exactly part of the problem. So QED.
4. Let’s try to create a large context, so “What would jane Jacobs ask?” about eminent domain? Of course we know the answer so maybe that is not fair. :)
5. I’d really ask you to look beyond eminent domain as an ideological matter. I am very much asking for empiricism: Has eminent domain actually worked to redevelop neighborhoods? (And god knows we should have 70 years of evidence by now)
Benjamin Hemric says:
Dilan Esper wrote:
I think your [i.e., David Sucher's and Benjamin Hemric's] arguments are really ideology dressed up as empirical claims.
Benjamin Hemric writes:
I think a fair reading of the entire post shows that it wasn’t a steadfast claim but that a genuine question was being asked — a request for concrete examples (“evidence”) that would meet certain criteria. Why should the discussion just be about abstract theories, generalities, and various unproven claims (which may, or may not, have anything to do with the actual world)? Why not also bring specific concrete examples (which would bring the discussion back into the real world) into the discussion? With the addition of specific concrete examples, people could then discuss whether some of the assumptions that appear to underlie this discussion are truly valid and/or relevant or not.
- – - – - – -
Dilan Espar wrote [added emphasis is mine -- BH]:
“. . . it’s plainly obvious to anyone who doesn’t have complete ideological blinders on that it’s POSSIBLE for government to condemn something in bad shape and build something better on the property. That FACT may be ideologically inconvenient for libertarians who would like to think that the government can never achieve a better result than the private sector, but IT is nonetheless TRUE.
Benjamin Hemric writes:
While it may be “possible” for government to achieve a better result than the private sector, it seems to me that the question under discussion here is whether this has or has not, in fact, actually been the case — and if so, where and when? How is something that is “possible” also “plainly obvious” and “true,” without the provision of either numerous, or outstanding specific concrete examples? I think that with the provision of concrete examples people would be in a much better position to discuss the issue of whether this has actually happened or not.
- – - – - – - – -
Dilan Espar wrote:
I don’t claim to be an expert in community redevelopment, so I can’t provide any statistics or hard data for you.
Benjamin Hemric writes:
Although I’m a student of cities, as mentioned above I haven’t really researched this aspect of the topic in an in depth way either. Again, my comment above was a request for more information.
At least at this point, however, it seems to me that specific concrete examples — examples that could be discussed regarding the validity of the claims being made for them — are more useful than statistical data. Until one has discussed specific concrete examples, one really doesn’t know what specific statistical data to collect and evaluate.
- – - – - -
Dilan Espar wrote:
I can tell you about anecdotal examples I know about -– for instance, in my hometown of Burbank, CA, there was an absolutely decrepit 41 acres in the center of town that was condemned and redeveloped into a very nice mixed-use development.
Benjamin Hemric writes:
While this information is somewhat useful, it would be more useful to know the actual name of the project so that people could look into it in more detail.
With more specific information, people could then look into, among other things, [a] whether the area was truly blighted in the first place; [b] why the area was the way it was (whatever the case may have been); and [c] whether condemnation by eminent domain was really necessary for it to be successfully redeveloped, or whether redevelopment that would have been just as successful (or even more successful) would/could have occurred via other means.
- – - – - – - – -
One reason for my skepticism is that in my research on various NYC redevelopment projects (which was spurred on by the 2007 exhibitions about the work of Robert Moses) it seems to me that, when one looks beyond the claims, the evidence just isn’t there. For instance, in the extensive exhibition “catalog” that is really more of a companion book to the 2007 exhibits on Robert Moses, there are lots of claims being made for his various redeveloment projects that utilized eminent domain but, when one looks behind the claims, the evidence just isn’t there — or actually seems contrary to the claims being made!
Another reason is that it seems to me that many people may be uninformed about the actual details behind various urban redevelopments: maybe assuming, for instance, that eminent domain was used in successful urban redevelopment projects when it wasn’t; maybe assuming that a redevelopment project is “successful” when it really isn’t; maybe assuming that something has only been subsidized a little when it has really been subsidized a lot; etc.
Also, it just seems odd that so many people seem to be assuming that eminent domain is a necessary tool for economic development without citing, up front, any examples that illustrate their point.
Sun., February 28, 2010, 1:26 p.m.
February 28, 2010, 1:26 pmDavid Sucher says:
Dilan,
Precisely before I’ve seen your posts and I have hitherto been impressed with them. So I don’t mean to be beating up on your comment. I’m not. Quite the contrary because you and so few people seem to be interested in the issue of eminent domain at all.
So for the record for those few I want to make one final remark:
That in many cases neighborhood redevelopment via eminent domain is not only indifferent in success but is likely (as I see it) actually negative. Whole neighborhoods — 41 acres in your example is a substantial area, maybe think of 41 square (typical) blocks — are developed by one intelligence, one approach to development.
A real neighborhood gains vitality by diversity of differing developers, approaches, business models, users etc etc.
And the irony, as I see it, the private (e.g shopping center developer) or non-profit (e.g. Columbia University) will in all likelihood produce a more profitable and interesting neighborhood where there is only one developer.
It’s a big issue and may not be one you have considered. So please just think about it neighborhood redevelopment:
1. eminent domain may not (empirically) be necessary;
2. eminent domain may produce (empirically) a sub-optimum development pattern.
So ED is not only unjust but also does not work (in neighborhood redevelopment.) That’s the bitter irony of ED.
February 28, 2010, 3:36 pmDilan Esper says:
I think that the 41-acre project which you mention is “Burbank Town Center.” If so, itt appears to be a typical shopping center with a Macy’s and California Pizza Kitchen (And I do like both, fwiw). Eminent domain for a shopping center? That is exactly part of the problem. So QED.
This is what I mean about ideology. Is the Burbank Town Center the Taj Majal? No, it isn’t. But having grown up there, I can tell you it is much better than what was there before, and couldn’t have been built without the government and eminent domain.
If shopping centers aren’t your cup of tea, fine, but on an economic level, the Burbank Town Center is much more productive than what was there before.
March 1, 2010, 1:11 am