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Once Blighted, Always Blighted:

One of the many serious problems in current eminent domain law is that many states have definitions of "blight" so broad that virtually any area can be declared blighted and thereafter subject to condemnation whenever local governments want. I have often written about this problem (e.g. - here). A less-recognized, but also serious problem is that once an area is declared "blighted," many state laws allow the designation to persist for decades. Blight designations - and the associated power to condemn property - are allowed to persist even if local conditions change and even if there is no proof that condemnation is actually necessary to eliminate any blight that remains.

As I discuss in my paper on recent eminent domain reform efforts, California is one of many states with a broad definition of blight that allows condemnation of almost any property. However, back in 1993, the state legislature enacted a modest reform law that set a deadline of 40 years or January 1, 2009 (whichever comes later) for the completion of blight redevelopment plans begun before 1994. After the deadline, local governments could not condemn property in the "blighted" area without first getting a new blight designation (which in California is usually easy to do). Indeed, the 1993 law was enacted at the behest of California local governments themselves in order to " stave off more radical" reform efforts.

However, even this modest restriction is now unacceptable to California planning bureaucrats and the private interests that benefit from taking over condemned property in "blighted" areas. As Dan Walters of the Sacramento Bee reports (hat tip: Tim Sandefur), they are trying to get the state legislature to pass a bill to extend the deadline in the 1993 law, so that the over forty year old blight "redevelopment" plans that expire on January 1, 2009 will still be able to license condemnation after that date.

I don't think you have to be a development expert to realize that a redevelopment plan that has failed to eliminate "blight" even after over forty years of trying is probably not going to succeed now. Indeed, long-lasting blight designations are likely to impede development more than promote it. After all, people are likely to hesitate to invest their money in property that could be condemned at any time. Endless blight designations are therefore unlikely to actually help develop communities - even those that are genuinely "blighted" as opposed to merely designated as such under expansive state laws. But permanent condemnation authority is a treasure trove for local politicians. They can use it to transfer condemned property to influential developers and other interest groups that can help them stay in power.

loghinfast:
Eminent Domain? You have a problem with that, Ilya? Is not our entire country built on land stolen from the previous owner? Ever heard of an investor Andrew Jackson (the one smiling from 20 dollar bill)?
2.23.2008 10:48am
PersonFromPorlock:

Is not our entire country built on land stolen from the previous owner?

This would have more force as a moral argument if the previous owners hadn't played pretty fast and loose with others' territory themselves.
2.23.2008 11:46am
Sean M:
Unfettered executive power? You have a problem with that, Ilya? Is not our entire country built on the work of citizens that had an all-powerful King chosen by God to rule? Ever heard of King George?

:)
2.23.2008 11:56am
seadrive:
I heard about a dispute in Arcadia, CA in which the site of a restaurant is blighted because it's not part of the Mercedes dealership across the street.
2.23.2008 1:25pm
Christopher Cooke (mail):
I agree with Ilya's point about this particular law, and that redevelopment efforts should be done within 40 years. That seems to be a no-brainer. But, I consider this post emblematic of Ilya's obsession with private property rights uber alles, even to the detriment of other rights--such as my right not to have the air I breathe polluted by my neighbor burning trash in his yard, or to have the water I drink contaminated with sewage dumped by some business into a stream or lake. After all, there is nothing more sacred about private property rights than a host of other rights conferred on individuals in our society, by our government, through our society's social compact (the constitutions of the federal and state governments). Such rights exist only because we choose to recognize them, as having some utility to promote the overall welfare of all of us. The right to own private property, like the right to speak freely, is not an unqualified right to do whatever you want, fellow citizens be damned. When you put too many constitutional restrictions on our governments, by saying for example, that any act that diminishes the value of private property is a takings, you are in effect hindering the will of the majority of citizens, as expressed through their elected representatives. That is why I support Kelo's result, as a matter of constitutional law, even though I oppose the particular governmental decisions made by the local government in that case, as a matter of policy.
2.23.2008 1:40pm
trotsky (mail):
Really, this argument has almost nothing to do with eminent domain and everything to do with the property-tax revenues that redevelopment agencies divert from counties, cities, schools and the state.

Really, I'm against abusive use of condemnation, but redevelopment agencies in Calif. must do billions of dollars worth of deals every year. In my own city, the money helps build roads, industrial parks, and even part of a new police station. In the past decade, at least, none of it's involved a bit of condemnation.
2.23.2008 2:01pm
another anonVCfan:
"But, I consider this post emblematic of Ilya's obsession with private property rights uber alles, even to the detriment of other rights--such as my right not to have the air I breathe polluted by my neighbor burning trash in his yard, or to have the water I drink contaminated with sewage dumped by some business into a stream or lake."

Most libertarians would respond by saying that pollution is a form of trespass. So the problem is not that property rights are being enforced too vigorously, but that they are being enforced selectively.
2.23.2008 2:11pm
vitamins:
The best sample of abuse might be the Golden Cicada. A tavern just across the river from WTC. Area now called a Gold Coast because of prices. An arch-Catholic mayor, certain drunkard named Healy, wanted to give the tavern to Catholic school, because their football field was some 7 feet short of offical size, and they could not officaly host games. Healy ran like a cockroach, when ACLU nailed him:
link
2.23.2008 2:36pm
HLSbertarian (mail):

When you put too many constitutional restrictions on our governments, by saying for example, that any act that diminishes the value of private property is a takings, you are in effect hindering the will of the majority of citizens, as expressed through their elected representatives.


There isn't much of a point to individual rights unless they sometimes "hinder[] the will of the majority of citizens."
2.23.2008 2:40pm
Tony2 (mail):
I live in a rather nice neighborhood in San Jose, a city where the redevelopment agency is somewhat out of control. (One of their achievements was a huge shopping mall that never had more than a handful of tenants. A total disaster.)

Our neighborhood was designated as "blighted" and one of the justifying observations on some bureaucrat's form was "wet leaves on tennis court". Really. You couldn't make stuff like that up.
2.23.2008 2:42pm
Fub:
Christopher Cooke wrote at 2.23.2008 1:40pm:
After all, there is nothing more sacred about private property rights than a host of other rights conferred on individuals in our society, by our government, through our society's social compact (the constitutions of the federal and state governments). Such rights exist only because we choose to recognize them, as having some utility to promote the overall welfare of all of us.
There are at least two views of how and why citizens have rights. This view of rights "conferred ... by government" is one.

Another is that rights pre-exist governments, and that the Constitution and Bill of Rights enumerate and recognize (as distinct from "confer") some of those rights, without disparaging any other rights.

Perhaps Ilya holds this latter point of view.
The right to own private property, like the right to speak freely, is not an unqualified right to do whatever you want, fellow citizens be damned. When you put too many constitutional restrictions on our governments, by saying for example, that any act that diminishes the value of private property is a takings, you are in effect hindering the will of the majority of citizens, as expressed through their elected representatives. That is why I support Kelo's result, as a matter of constitutional law, even though I oppose the particular governmental decisions made by the local government in that case, as a matter of policy.
Expressly "hindering the will of the majority" is one reason the Bill of Rights exists in the first place.
2.23.2008 2:44pm
Wahoowa:
Christopher:

Not to put words in Ilya's mouth, but I imagine most of the problems you complain of are still readily manageable in his view--that's what nuisance law is for.
2.23.2008 3:20pm
Ilya Somin:
I think other commenters have already responded sufficiently to the comment about my "obsession" with property rights. I will only add two points:

1. I am an academic expert on property rights, so naturally I post about them. Murder, for example, is worse than the violation of property rights. But I don't post about it much because I lack the expertise to say much about it that is original.

2. Property rights in fact have great importance in stimulating economic development, expanding individual freedom, and protecting indviduals from abuses of government power.
2.23.2008 5:14pm
Ilya Somin:
Eminent Domain? You have a problem with that, Ilya? Is not our entire country built on land stolen from the previous owner? Ever heard of an investor Andrew Jackson

The fact that the US government did something wrong 150 years ago doesn't mean that we should ignore later wrongs of the same general type. The 19th century US government also promoted and protected slavery. Does that mean that we should tolerate slavery today?
2.23.2008 5:15pm
Gideon Kanner (mail):
Christopher Cooke says that his "right not to have the air I breathe polluted by my neighbor burning trash in his yard, or to have the water I drink contaminated with sewage dumped by some business into a stream or lake" should trump "property rights." But what does that have to do with eminent domain which is what Ilya talked about? Also, harms of that sort are subject to interdiction through the law of nuisance precisely because such activities interfere unreasonably with the property rights of others. Sic utere tuo etc.

Finally, the lesson of reality is that it is societies that protect property rights through a rule of law that have the highest degree of personal and political freedoms, as well as the best environment. It is they that have made the greatest strides in controlling pollution. On the other hand, societies that have not been protecting property rights have fewer personal and political liberties and a more severely degraded environment. There is a lesson in that, Cooke, and I'm sure you will discern it if you think about it.

All this needs stressing because it is a tired old wheeze of affluent NIMBY suburbanites who maintain the exclusivity and value of their turf by masquerading as environmentalists, to disdain "property rights" even as they dwell in large, expensive suburban homes that overconsume land, infrastructure and energy, and make efficient public transportation difficult or impossible to implement.

Also, speaking of pollution, can someone explain why the property rights fans would want to breathe polluted air and have their kids drink contaminated milk?

I recommend two books: Bernard Frieden, The Environmental Protection Hustle, and James V. DeLong, Property Matters. Bernie Frieden is Chairman of the Planning Department at MIT.
2.23.2008 8:26pm
TheDude:
But, I consider this post emblematic of Ilya's obsession with private property rights uber alles, even to the detriment of other rights--such as my right not to have the air I breathe polluted by my neighbor burning trash in his yard, or to have the water I drink contaminated with sewage dumped by some business into a stream or lake.

If these examples bore any resemblance to the actual fact patterns that we see in litigation, most people would agree with you. However, none of the cases I am familiar with have involved neighbors burning trash in their yards, or contaminated water, or anything of the sort.

Many of the so-called "blight" takings involve areas that are not blighted at all. "Blight" is commonly used as a pretext for taking homes and small businesses that are perfectly fine. Because local governments are generally free to create their own definitions of "blight," the pretext is an easy one to use. For example, in Norwood, Ohio, the city and developers used a series of truly laughable factors to declare the area blighted, including a little gem called "diversity of ownership." Do you know what that means? It means that for the area being considered, the more owners there are, the "worse" the neighborhood is. More owners = high diversity = blight. Since basically every neighborhood is made up of homes owned by individuals, pretty much any neighborhood can be declared blighted. The only thing that isn't "diverse," and therefore blighted, is a development with only one owner (i.e., the mall the city wants to build after it takes your land). How convenient.

Several years ago, Lakewood used a definition of "blight" that was so broad it covered 90% of the city, including the mayor's home. To avoid a "blight" designation you needed a house with 3 bedrooms, 2 bathrooms, an attached 2-car garage, and central air. Your 3 bedroom house only has 1 bathroom? Apparently, you are living in a slum. You chose not to install an air conditioner because you live just off of a cold, windy lake? Too bad for you. We are taking your house. And of course, your neighbors have to have all these things as well, or else you live in a "blighted area" that can be seized in toto.

Well maintained, profitable businesses are often seized because a larger corporation wants their land. Ever wonder why the NFIB files amicus briefs in these case, in support of the property owners? It's certainly not because they are hoping to burn leaves in the yard.

Nor do the social benefits of "redevelopment" have to outweigh the land's current use for property to be seized. National City, California is trying to seize a gym that houses programs for at-risk children, so that luxury condos can take its place. This isn't about one stubborn guy who refuses to move down the street. The social harm is obvious, and it is going to be borne by those most in need of society's support.
2.24.2008 12:31am
FWB (mail):
Blight is in the eye of the beholder. No one including the government holds any valid authority to take property because of perceptions of "blight". The property owner has the right to do whatever he/she wishes with his/her property so long as what the property owner does with the property has no effect on the health and safety of others. Even then the proper resort is for the government to require the owner to meet health and safety standards. In the 19th century, the courts at least recognized that taking property from private party A to give to private party B was not only a travesty but illegal and immoral. The road to hell is paved with good intentions.
2.25.2008 12:27pm