Thursday, October 13, 2005
I was just on Smart Talk, a public affairs show on WITF, our local PBS station here in beautiful Harrisburg, PA, for a panel discussion on Kelo and eminent domain reform. The other guests were Dana Berliner of the Institute for Justice and Ed Troxell of the Pennsylvania State Association of Boroughs. Surprisingly enough, we all agreed on many issues. Dana and Ed predictably sparred a little bit over the inherent goodness of local government officials (e.g., whether eminent domain is used as a last resort), but Ed and his organization are in support of reasonable eminent domain reform so there wasn't anyone on the show arguing for local governments' ability to take homes and replace them with box stores.
Two of the more interesting issues that we discussed were raised by people who called into the show. One asked about the potential for future government condemnation of conservation easements. This seems like a real potential problem to me. Dana raised the very good point that if you take away government power to engage in economic development takings, you take away a lot of the potential desire for governments to take the conservation easements.
The other issue raised by a caller was what to do when the government no longer uses taken property for a public use. The example raised by the caller was land taken to protect a watershed twenty years ago that was recently sold to a developer who put houses on the property. One possible solution to this problem is to have the property revert back to the original owner when the government ceases using it for a public use. I'm not a big fan of reverter clauses because (a) I prefer to avoid future interests whenever possible; (b) if the reverter has too long a duration, finding the former owner (or successors) can be difficult; and (c) the owner already received compensation for the property.
If anyone has any thoughts on these issues, please leave a comment. [As always, comments require approval before posting, so there may be a delay]
Wednesday, October 12, 2005
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.
Wednesday, October 5, 2005
Kaimi Wenger over at Concurring Opinions has an interesting post on a California bill designed to make it easier to remove racial covenants from titles:
Racial restrictions were declared illegal half a century ago, in Shelley vs. Kraemer. It's not as if anyone is enforcing them today. But they remain in the titles to many pieces of property, and they serve as a painful reminder of the past. Under current law, property owners can petition to have them removed, but the process is cumbersome and time-consuming, and it affects only single parcels.
AB 394 would provide a streamlined method for removing these covenants from entire subdivisions. Seems like a reasonable idea to me.
I haven't seen much academic discussion of the legislative response to Kelo, which to me is far more interesting than the Court's decision itself. The Kelo backlash presents a rare opportunity to get state legislatures to pay attention to eminent domain law and procedure. This opportunity extends beyond the relatively narrow "economic development takings" issue raised by Kelo. I think that in the current political climate, many legislatures are willing to consider a wide range of reform ideas.
I will have some substantive postings on legislative reform soon, but in the meantime, I'm trying to put together a list of links to resources on the issue. Here is what I have so far:
The Castle Coalition maintains listings of pending legislation on the federal, state and local levels. They also have model legislation and the Institute for Justice's white paper on legislative reform.
Will Baude has posted notes on a debate on the issue between Merrill and Nicole Garnett (Notre Dame).
I've given testimony to the Pennsylvania legislature on the issue.
I'm sure there is more out there. Please e-mail me or leave a comment if you know of anything I should add to the list. To be clear, I'm not looking for material about the Kelo decision itself; rather, I'm looking for material on what legislatures should do (or not do) in response to Kelo.
[Please note that there might be a delay in comments going up because they won't appear until I have had a chance to review them.]
Tuesday, October 4, 2005
My students sometimes ask me why we don't cover more of the Restatements in our first year property class. In torts and contracts, the Restatements are all over the place. In property, they don't come up much at all, though I do cover the Restatement (Third) when I'm teaching servitudes. My answer varies, but is based on the following impressions: (1) there is far less uniformity across jurisdictions in property than there is in, say, torts and contracts; (2) the first two Restatements reinforced a lot of silly common law rules and as a result academics don't like them much; and (3) courts are less willing to change the common law of property than they are in other common law disciplines, so the Restatements of Property have had less impact than the Restatements of other subjects.
I don't have any real empirical support for these impressions, and feel free to correct me in the comments if you think I'm wrong about any of them. I've read enough property decisions to think that number 3 is true. Courts are always hesitant to upset expectations by changing the rules in mid-stream, and the long duration of many property relationships reinforces this tendency. Major change in property law, the courts often say, should be done by the legislature.
So if courts are hesitant to reform and rationalize property law, why do we keep doing Restatements? I'm generally a fan of the Restatement (Third) of Property, Servitudes. Among other things, abolition of the distinction between real covenants and equitable servitudes makes a great deal of sense -- the difference between the two is a relic of the division between law and equity, and it seems silly to have different rules if a covenant is going to be enforced through an injunction or money damages. Some courts might be bold enough to make such a radical change, but my bet is that most would not. So why be court-centric? Why don't we put the same substance into a Model Law of Servitudes and try to reform property law through the legislatures? Some legislative property reform might raise takings issues (a subject I'll address in a future post), but I have a hard time seeing that as a problem with servitudes reform.
Comments are open. There might be some delay in the comments showing up on the blog because I have to approve them before they post.