Tuesday, March 29, 2011
Martin Gold (Sidley Austin) and Lynne Sagalyn (Columbia Business) have posted The Use and Abuse of Blight in Eminent Domain (Fordham Urban Law Journal) on SSRN. Here's the abstract:
Blight findings have functioned as a cornerstone for condemnation since the great urban decline of the mid-twentieth century prompted governments at all levels throughout the country to intervene in the real estate market. Elements of blight, and then the term itself, became a basis for this intervention. But the use of blight as a basis for takings has become increasingly controversial as its application has migrated from slum clearance to urban renewal, then to economic development projects, and on to revenue-enhancing projects. And, at the same time, the definition has been expanded to give government greater and greater latitude. Immediately following the largely negative reaction to the U.S. Supreme Court decision in Kelo vs. City of New London, home owners, business activists and state politicians sought "reform" to their state’s eminent domain statutes. One of the most important items on the agenda was the use and abuse of blight.
In this paper, we take a close look at the issue. We briefly describe the origins of the use of the term and discuss how, in the absence of a clear, unambiguous definition, the eminent domain statutes of the nation’s fifty states describe blight through locally developed definitions and criteria which are complicated and diverse. Even prior to Kelo, several states enacted reforms aimed at curbing abuses arising from their blight criteria, but these reforms did not change the character of the definition or the highly subjective aspects of its application. Eminent domain is a balance between government and public needs on the one hand and property owner rights on the other. As a means of evaluating the use of eminent domain and blight findings, we lay out a hierarchy for projects in which the level of public benefits is compared with the level of private benefits. Where a particular eminent domain taking falls along our spectrum will depend upon its ratio of public benefits to private benefits.
In addressing abuses in the use of blight criteria, we look at the reforms made in the post-Kelo era. Although forty-three states enacted Post Kelo reforms, clashing political and business forces failed to check the permissiveness under which private property in most states can still be condemned as "blighted." So we turn our attention to the creation of a better definition and criteria. We focus on two major reforms: the elimination of the most abused criteria and the use of quantification. Believing, as we do, that there are clear and compelling reasons for using the power of eminent domain for public purposes (and not just pure public use) our purpose is to see established thoughtfully crafted, objective and measurable, standards for the determination of blight.