Property Rights

Big Blighters

How developers use "blight" as a pretext to get the land they covet

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After Kelo v. City of New London, the 2005 decision in which the U.S. Supreme Court approved the forcible transfer of property from one private owner to another in the name of "economic development," 43 states passed reforms that were supposed to curb eminent domain abuses. But most states still allow condemnation of property deemed to be "blighted," and many of them define that condition so broadly that it has become a synonym for coveted, as illustrated by two recent New York cases.

In 1954, when the Supreme Court declared that eliminating blight counts as a "public use" under the Fifth Amendment and that property may be transferred to other private owners for that purpose, the case involved a Washington, D.C., neighborhood where two-thirds of the dwellings were considered "beyond repair"; most lacked central heating, indoor toilets, and bathrooms; and some were located in alleys. As part of "a comprehensive plan" aimed at alleviating these "miserable and disreputable housing conditions," the Court ruled, it was acceptable to condemn a department store that was itself in good condition.

Two decades later, the New York State Court of Appeals noted that blight was not just for slums anymore. "It has become clear," the court said in 1975, "that the areas eligible for such renewal are not limited to 'slums' as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose."

Although New York courts could interpret the state constitution as imposing more restrictions on eminent domain than the U.S. Constitution does, this generous blight standard is hard to distinguish from the open-ended development rationale endorsed in Kelo, under which no one's property is secure if politicians can imagine a better use for it. It is therefore not surprising that the Court of Appeals last month approved developer Bruce Ratner's use of eminent domain to eliminate what the lone dissenter, Judge Robert Smith, called "a normal and pleasant residential community" in Brooklyn.

The neighborhood stands in the way of Ratner's grandiose, publicly subsidized Atlantic Yards project, which is supposed to include an arena for his basketball team as well as luxury apartments and commercial space. "It is clear to me from the record," Smith wrote, "that the elimination of blight, in the sense of substandard and unsanitary conditions that present a danger to public safety, was never the bona fide purpose of the development."

Last week a lower appeals court reached the same conclusion in a case involving Columbia University's expansion into the Manhattanville section of Harlem. As in the Atlantic Yards case, the Empire State Development Corporation, the authority empowered to use eminent domain, went looking for "characteristics that demonstrate blight conditions" so it could reach a predetermined conclusion that condemnation was justified.

The result, said the court, was "a preposterous summary of building and sidewalk defects" that could be found in "virtually every neighborhood in the five boroughs." It concluded that the blight designation was "mere sophistry."

Refreshing as this rebuke is, it is likely to be reversed by the Court of Appeals, which in the Atlantic Yards case showed it is not inclined to second-guess development officials' blight judgments. "It may be that the bar has now been set too low," the court that set the bar conceded, "that what will now pass as 'blight,' as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses."

But if so, the judges said, don't expect us to do anything about it; the solution will have to come from legislators. I guess it will, given the unjustified deference that New York's highest court shows toward the self-interested assessments of developers and their allies.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.

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  1. We need judicial activism once in a while. Funny how that term has such a bad ring to it, depending on what they’re being activist about…

    1. It is not judicial activism to read “nor shall private property be taken for public use, without just compensation” to mean what it says. It is judicial activism to decide that “public use” really means “for private purpose”

      1. Not to mention “just compensation”. That is the second part of the theft; not only is the property taken away from the owner but the price is much lower than the owner would choose to charge.

        Call me silly, but if I own a hot property that another private entity wants to buy, then that entity can pay my price or do without.

        Or perhaps haggle.

  2. Didn’t 60 Minutes already cover this five years ago? Any new developments. Why yes, developers are still able to steal property through phony blight. Nothing to see here, move along.

    1. The Kelo issue really shows how liberals have sold their souls to the government. How in the hell can anyone who calls themselves a “liberal” think that it is okay for a crooked developer to buy a city council and take people’s property? What about that whole looking out for the little guy thing?

      1. Yeah, but liberals just blame the whole issue on “capitalism”. They’re either too stupid and/or too dishonest to admit that they thoroughly believe in the amount of control the government has in this issue, and actually believe the government should have MORE control.

        If you explain to them that when a government has that level of control it will always be used in terrible ways, they’ll just burp the stupid sentiment that governments aren’t “supposed” to be like that. Again, it’s hard to determine whether they’re actually that stupid and believe that, or just dishonest – or both.

      2. Liberals have souls? News to me.

      3. Point of order. The Kelo decision came from a SCOTUS packed with conservatives.

        1. Warren.DO YOUR RESEARCH! The 4 (count’em!) conservatives voted against Kelo majority. Look it up, for God’s sake and stop wasting our time with stupidity!

  3. One of my cousins works at IJ. He said that he found some areas in Ohio where “condemned” meant “doesn’t have a 2-car garage”.

    1. Was this an objective definition, or did they just take the land and come up with some bullshit justification later…? (I think I know the answer.)

  4. Thanks to the author,This really very nice,Thanks very much

  5. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets

  6. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books.

  7. These kind of post are always inspiring and I prefer to read quality content so I happy to find many good point here in the post, writing is simply great, thank you for the post!

  8. Thanks for the mp3 version. As for me, I prefer to listen. It is a pity that even in such developed countries as the USA the laws are far from being perfect. There will be always efforts to take somebodies property but it is in the jurisdiction of law to stop it.

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