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Wednesday, October 12, 2005

A Tale of Two Blight Statutes

Consider the following definition of blight from Pennsylvania's Urban Redevelopment Law:

35 Penn. Stat. § 1702:

It is hereby determined and declared as a matter of legislative finding--

(a) That there exist in urban communities in this Commonwealth areas which have become blighted because of the unsafe, unsanitary, inadequate or over-crowded condition of the dwellings therein, or because of inadequate planning of the area, or excessive land coverage by the buildings thereon, or the lack of proper light and air and open space, or because of the defective design and arrangement of the buildings thereon, or faulty street or lot layout, or economically or socially undesirable land uses.

. . .

Therefore, [blight clearance and related redevelopment activities] are declared to be public uses for which public money may be spent and private property may be acquired by the exercise of the power of eminent domain.

This definition of blight is absurdly overbroad.  It allows for eminent domain to be used to take property that falls into any one of the laundry list of conditions in paragraph (a).  Any of the categories in this list could be subject to abuse, but focus on the last one:  "economically or socially undesirable land uses."  Here is a translation of that language:  "Kelo-style economic development takings can be done in Pennsylvania under the guise of blight."  To add insult to injury, property owners are held to a high standard in challenging blight designations.

Now consider this definition of blight, from the same chapter of the Urban Redevelopment Law:

35 Penn. Stat. § 1712.1

(a) Notwithstanding any other provision of this act, any Redevelopment Authority shall have the power to acquire by purchase, gift, bequest, eminent domain or otherwise, any blighted property as defined in this section . . .

(c) Blighted property shall include:

(1) Any premises which because of physical condition or use is regarded as a public nuisance at common law or has been declared a public nuisance in accordance with the local housing, building, plumbing, fire and related codes.

(2) Any premises which because of physical condition, use or occupancy is considered an attractive nuisance to children, including but not limited to abandoned wells, shafts, basements, excavations, and unsafe fences or structures.

(3) Any dwelling which because it is dilapidated, unsanitary, unsafe, vermin-infested or lacking in the facilities and equipment required by the housing code of the municipality, has been designated by the department responsible for enforcement of the code as unfit for human habitation.

(4) Any structure which is a fire hazard, or is otherwise dangerous to the safety of persons or property.

(5) Any structure from which the utilities, plumbing, heating, sewerage or other facilities have been disconnected, destroyed, removed, or rendered ineffective so that the property is unfit for its intended use.

(6) Any vacant or unimproved lot or parcel of ground in a predominantly built-up-neighborhood, which by reason of neglect or lack of maintenance has become a place for accumulation of trash and debris, or a haven for rodents or other vermin.

(7) Any unoccupied property which has been tax delinquent for a period of two years prior to the effective date of this act, and those in the future having a two year tax delinquency.

(8) Any property which is vacant but not tax delinquent, which has not been rehabilitated within one year of the receipt of notice to rehabilitate from the appropriate code enforcement agency.

(9) Any abandoned property. A property shall be considered abandoned if:

(i) it is a vacant or unimproved lot or parcel of ground on which a municipal lien for the cost of demolition of any structure located on the property remains unpaid for a period of six months;

(ii) it is a vacant property or vacant or unimproved lot or parcel of ground on which the total of municipal liens on the property for tax or any other type of claim of the municipality are in excess of 150% of the fair market value of the property as established by the Board of Revisions of Taxes or other body with legal authority to determine the taxable value of the property; or

(iii) the property has been declared abandoned by the owner, including an estate that is in possession of the property.

Unlike Section 1702, Section 1712.1 is a serious and reasonable attempt to define property that is actually blighted.  The contrast between the two contains two related lessons for post-Kelo economic domain reform.  First, legislators considering reform must take a hard look at all of the definitions of blight in their state.  Second, definitions of blight like Section 1702 must systematically be replaced by narrower definitions like Section 1712.1.

Ben Barros

http://lawprofessors.typepad.com/property/2005/10/a_tale_of_two_b.html

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