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The Use and Abuse of Blight in Eminent Domain

2011; Fordham University School of Law; Volume: 38; Issue: 4 Linguagem: Inglês

0199-4646

Martin E. Gold, Lynne B. Sagalyn,

Property Rights and Legal Doctrine

Introduction I. Blight Determinations: More Facilitating Than Limiting II. The Hierarchy of Uses III. Blight and Public Purpose in Columbia's Expansion in Manhattanville IV. Attempted Reforms V. Conflicting Political Forces VI. Creating Better Safeguards Conclusion INTRODUCTION Blight findings have functioned as a cornerstone for condemnation takings since the severe urban decline in the middle of the twentieth century prompted governments at every level, throughout the country, to actively intervene in the real estate market. Elements of blight, and then the term itself, became a foundational basis for this governmental intervention. But using blight as a basis for that intervention has become increasingly controversial as its application has moved from slum clearance to urban redevelopment, then to economic development projects, and on to revenue enhancing projects--all the while its definition expanded. Immediately following the outcry over the U.S. Supreme Court's decision in Kelo v. City of New London, (1) homeowners, business activists, and state politicians, organized to reform their state's eminent domain statutes. A redefinition of blight became a top agenda item. Over its more than half century of use, blight had become a well-worn term of art. But its application to takings is subjective and malleable, so much so that it can now be said to be in the eyes of the beholder. When applied in the interests of curing slum conditions and remedying unsafe and unsanitary urban conditions, it generally functioned as intended. When applied for the purpose of initiating urban revitalization, it also functioned mostly as intended, but all too often with very negative consequences for the large numbers of low-income and minority households and businesses that were uprooted and displaced. But as its application has moved into other domains, including pure fiscal gain and competitive quests to retain and expand corporate facilities, it has been stretched and misused. In this Article, we take a close look at the issue of blight, its use, and its abuse. In Part I, we briefly describe the origins of the use of blight, and discuss how, in the absence of a clear and unambiguous definition, the eminent domain statutes of the nation's fifty states describe blight through multiple and very diverse criteria. Even prior to Kelo, several states enacted reforms aimed at curbing abuses arising from tabula rasa blight criteria, but these reforms did not change the highly subjective character of its determination. Part I! is devoted to laying out a hierarchy of project uses and benefits. Eminent domain is a balance between government and public needs on the one hand and property owner rights on the other. By creating the hierarchy we can compare the amount of public benefits on the one hand and private benefits on the other in any project. This ladder of uses and benefits moves from pure public benefit at the top, down to nearly total private benefit at the bottom. Where a particular eminent domain taking falls along the spectrum of the hierarchy will depend upon its ratio of public benefits to private benefits. We hope that this will help create a useful perspective and tool to evaluate the usage of eminent domain and blight findings. In Part III, we consider Columbia University's expansion in Manhattanville and how the findings of blight there were assessed very differently by New York's Appellate Division and Court of Appeals. In Part IV, we discuss the extent to which the post-Kelo reforms enacted in forty-three states redefined blight; and, in Part V, we discuss how political and business forces have weakened and reduced efforts to enact serious reforms. In addressing abuses in the use of blight criteria, in Part VI, we look again at the reforms made in the post-Kelo era and focus on the creation of a better definition through the elimination of the most abused criteria and the use of quantification. …