Proposed California Referendum Initiative Would Make it Even Easier to Declare Property “Blighted” and Condemn it

Timothy Sandefur of the Pacific Legal Foundation has a good post outlining the the dangers posed by a California ballot question drafted by local governments interested in expanding their already very broad power to condemn property:

[J]ust before Christmas, the law firm of Rutan & Tucker—the leading California law firm for cities that want to steal your land for redevelopment—filed a new ballot initiative [that]… would bring back redevelopment as the “Jobs and Education Development Initiative.” But what’s even more remarkable is how it would expand the power of eminent domain even further than California’s already extremely broad Redevelopment Law allows. Indeed, if this initiative were to pass, it would essentially declare the whole state of California “blighted….”

Quick background: to take property for redevelopment, a local redevelopment agency (typically the City Council) has to declare an area “blighted.” They don’t have to declare each structure to be blighted—they can condemn whole neighborhoods, including perfectly adequate property, if lots down the street or around the corner are “blighted.” And what is the definition of “blight”? The Redevelopment Law contains two lists of factors (“physical” and “economic”), and the officials have to declare that one item from each list is present. That’s all. And the factors are already very vague. My personal favorite is “conditions that prevent or substantially hinder the viable use or capacity of buildings or lots.” What does that mean? It means whatever the government says it means.

That’s the current law. It is already so bad that practically any property in the state can be declared blighted if local officials want to do it. What the new initiative would do is expand these two lists even more.

For example, it changes “conditions that prevent or substantially hinder the viable use or capacity of buildings or lots” to “Factors that prevent or substantially hinder the viable use, reuse or capacity of buildings of areas.” And it adds “faulty or inadequate infrastructure, or other similar factors” to the list of items that demonstrate “physical” blight. It also adds a new item to the list of “economic” factors that prove blight: “Unemployment rates in the locality or the county that are in excess of the national or statewide average, as determined by the latest information from the United States Bureau of Labor Statistics and the California Employment Development Department.” Again, the government only has to prove one “physical” factor and one “economic” factor to prove blight—and then that lets them use eminent domain.

Under this list, the mere existence of a structure would be a physical factor proving blight—since the existence of a structure “substantially hinders” the “reuse” of that “area.” And potholes or traffic jams would certainly prove “inadequate infrastructure.” As for unemployment, not only is California’s unemployment rate always higher than the national average, but note that this initiative doesn’t impose any time limit. If the area’s jobless rate exceeds the national rate for even a single day, that would be an “economic” factor proving the existence of blight, and authorizing the use of eminent domain.

California is just one of many states that has enacted largely ineffective post-Kelo eminent domain “reform” laws that actually do very little to constrain takings. But if this initiative passes, California would rival New York as the state where property can most easily be declared “blighted” and condemned. While the rationale for these kinds of takings is the need to promote economic development, in reality blight and economic development condemnations routinely harm local economies more than they benefit them, as well as often victimizing the poor and politically weak for the benefit of powerful interest groups.

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