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Blight, Sweet Blight - The Problem of Blight Condemnation After Kelo:

My op ed on condemnation of "blighted" property was published today by the Legal Times, and can be read here.

In the wake of Kelo v. City of New London, there has been a major backlash against condemnations of private property for "economic development," but not enough attention has been paid to the even greater harm caused by condemnation of supposedly "blighted" property. A brief excerpt:

...[E]ven many critics of Kelo ignore the danger posed by blight condemnations. In her scathing Kelo dissent, Justice Sandra Day O'Connor emphasized that she believes that such takings are constitutional. None of the 11 state supreme courts that banned Kelo-style economic-development takings have imposed parallel restrictions on blight takings. And only a handful of the states that have enacted post-Kelo reform laws restrict blight condemnations in any meaningful way. Unfortunately, blight condemnations have most of the same shortcomings as takings for economic development: They transfer property to private parties, often fail to help their supposed beneficiaries, and are vulnerable to exploitation by powerful interest groups. Moreover, a ban on economic-development takings is unlikely to be effective without parallel restrictions on blight condemnations. Effective reform efforts must address the two major flaws of current blight takings: overexpansive definitions of blight and abusive takings in truly blighted areas.

David Sucher (mail) (www):
Why not abatement instead of condemnation?

What I find most puzzling about defense of condemnation based on 'blight' is that largely the same goal can be achieved through 'abatement.'

The only thing missing if we use abatement is economic development. An abated property -- say a vacant lot which upon which once sat a rat-infested fire-trap of a house -- may remain vacant. But if we don't like condemnation for economic development then we are not losing anything by getting rid of condemnation for blight. Or at least so it seems to me. What am I ignoring?
8.14.2006 6:41pm
Gordo:
If your point is that blight declarations have been grossly misused in many instances, and have been uised to put in replacelemnt development ending up worse that the original blight, I have no argument.

But it's a big step from "condemnation of blighted areas is bad public policy" to "condemnation of blighted areas is unconstitutional."
8.14.2006 8:12pm
Kevin L. Connors (mail) (www):
We might also through in partial takings, realitive to other property owner's "rights" vis-a-vis views, eyesores, etc..
8.14.2006 8:57pm
Ilya Somin:
But it's a big step from "condemnation of blighted areas is bad public policy" to "condemnation of blighted areas is unconstitutional."

I didn't say that it is ALWAYS unconstitutional. It is, however, if "blight" is defined so broadly as to include virtually any property or if the condemnation of even genuinely "blighted" areas is just a tool for transferring the land to politically powerful interest groups at the expense of local residents and the general public. Neither of these is a "public use" under any defensible definition of the word. As I explain in the op ed, the exact same constitutional objections that can be made against Kelo-style condemnations also apply to many blight takings.
8.14.2006 8:59pm
dick thompson (mail):
Who defines blight?

There was an article in the SacBee about 6 months ago about a neighborhood in Sacramento that the city wanted to use for new condos and offices. The neighborhood consisted of Victorian homes that had been restored and were selling when available for around a million or more. The city called it blighted and tried to get the homes by eminent domain. The neighborhood took action and I don't know what the final resolution was but the photos of the neighborhood in the SacBee looked anything but blighted. The article claimed that the only way the city could go ahead with all the downtown plans was to declare the neighborhood blighted.

That was why I asked who defined blight?
8.14.2006 10:08pm
Gordo:
Yes Ilya, the problem is in the definition. "Blight" has been misused by many local governments, as I have seen by personal observation - and as one who disagreed on fairly narrow grounds with the Supreme Court's Kelo decision, "blight" can easily be used as a back door to similar takings.

But the problem with previous blight definitions, as with those behind the original Berman decision in Washington D.C. as well as many in post-war urban America is not that viable neighborhoods were destroyed. Although some were, many were truly blighted and beyond redemption, even by someone with the zeal of Jane Jacobs. The problem is what arose in their place, the monstrosities of Cabrini-Green, Pruitt-Igoe, the Robert Taylor Homes, and other such disaster. They were bad public policy exemplified.
8.14.2006 10:26pm
Ilya Somin:
Who defines blight?

As a general rule, it is the state legislature, subject - potentially - to judicial review.
8.15.2006 12:00am
Lev:

Who defines blight?


It appears from Kelo, that Florida case, and the Sacramento incident described about, it is whoever wants the property.
8.15.2006 12:07am
Kevin L. Connors (mail) (www):
Ilya:

As a general rule, it is the state legislature, subject - potentially - to judicial review.

I don't know, Ilya. Here in SoCal, particular along the hot I-15 corridor through San Diego and Riverside Counties (read: Elsinore), VAST tracts of land have been declared "blighted." And they are really no better or worse than they were 30 years ago.

Only difference: Now the property is prime for development.
8.15.2006 2:17am