Eminent Domain: Can We Define Blighted?
Blighted? It’s not pretty, but it is a financially viable place.
It was big news when Pfizer, the pharmaceutical company that “set off a landmark eminent domain battle,” announced that it was leaving New London and taking 1,400 jobs with it. It called for a look back at that Supreme Court case, Kelo vs. New London. Here is a choice quote that the NY Times used:
In a 5-to-4 decision, the high court ruled that it was permissible to take private property and turn it over to developers as part of a plan to bolster the local economy. Conservative justices, including Clarence Thomas, dissented. Justice Thomas called New London’s plan “a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation.”
It is a rare moment when I agree with Clarence Thomas. And 43 states have now taken measures to protect private-property rights.
Blighted? Susette Kelo’s house in New London.
But I don’t believe that New York State is one of them. And just around the holidays, New York’s Court of Appeals announced that the state could exercise eminent domain in claiming land for the Atlantic Yards project. And thus it ruled that the neighborhood in questions was “blighted.”
I used to live half a block from Atlantic Yards and I take issue with the notion that it is a blighted neighborhood. It’s not a pretty area, but there is a pretty successful shopping mall, independent stores, bars, and restaurants all in the vicinity.
Blighted doesn’t just have to mean dreary, apparently. I also imagine that the folks who live in Norwood, Ohio, another area being considered blighted for eminent domain use, would argue that blighted is the correct term for their neighborhood.
Blighted? Doesn’t really look like it.
Here is a definition according to Colorado (sorry, I’m a little lazy this morning—if you have a better source for the definition of blighted, I’ll fix this):
“Blighted area” means an area that, in its present condition and use and, by reason of the presence of at least four of the following factors, substantially impairs or arrests the sound growth of the municipality, retards the provision of housing accommodations, or constitutes an economic or social liability, and is a menace to the public health, safety, morals, or welfare:
(a) Slum, deteriorated, or deteriorating structures;
(b) Predominance of defective or inadequate street layout;
(c) Faulty lot layout in relation to size, adequacy, accessibility, or usefulness;
(d) Unsanitary or unsafe conditions;
(e) Deterioration of site or other improvements;
(f) Unusual topography or inadequate public improvements or utilities;
(g) Defective or unusual conditions of title rendering the title non-marketable;
(h) The existence of conditions that endanger life or property by fire or other causes;
(i) Buildings that are unsafe or unhealthy for persons to live or work in because of building code violations, dilapidation, deterioration, defective design, physical construction, or faulty or inadequate facilities;
(j) Environmental contamination of buildings or property;
(k.5) The existence of health, safety, or welfare factors requiring high levels of municipal services or substantial physical underutilization or vacancy of sites, buildings, or other improvements;
(l) If there is no objection of such property owner or owners and the tenant or tenants of such owner or owners, if and, to the inclusion of such property in an urban renewal area, “blighted area” also means an area that, in its present condition and use and, by reason of the presence of any one of the factors specified in paragraphs (a) to (k.5) of this subsection (2), substantially impairs or arrests the sound growth of the municipality, retards the provision of housing accommodations, or constitutes an economic or social liability, and is a menace to the public health, safety, morals or welfare. For purposes of this paragraph (1), the fact that an owner of an interest in such property does not object to the inclusion of such property in the urban renewal area does not mean that the owner has waived any rights of such owner in connection with laws governing condemnation.
While I would agree that there is much vacant land in the Atlantic Yards area, that there is an “inadequate street layout” and other problems, the fact is that the neighborhood is fairly vibrant nonetheless. And while I think that the train yards could be revitalized, I don’t think that other buildings, where people currently live and don’t want to leave, need to be taken over. Is the definition of blighted problematic or is the whole concept of eminent domain the problem? I’m curious to know if there are lots of instances when non-controversial eminent domain usage radically transformed a neighborhood into a much better place. Any examples you want to share?
Diana Lind is editor in chief of Next American City magazine.
Commercial Decline on Mount Pleasant Street
neil freeman in the ether on Fri, Dec 04, 2009 at 12:58pm
There are lots of interesting things to day about defining ‘blight,’ and what the implies about change, flexibility and resilience urban environments. I’m not going to say any of them. Rather I’ll just point out that in eminent domain cases, any definition of ‘public good’ will produce edge cases. Whether ‘public good’ is defined to include economic development, or a narrower definition, there will be an inevitable situation in which the temptation is to ask judges to rule not on the law, but on the merits of a plan. I don’t think judges should be the ones making urban development decisions. I’d rather have judges that trusted that a democratic, equitable planning process had produced a good result, even if that means that a few nice-looking houses will be subject to the takings clause.
Of course, that means that we need democratic, equitable planning processes in place in our cities, which we don’t have. It’s notable that in both Brooklyn and New London the government body employing eminent domain is not the city but a quasi-public development corporations. Efforts to reform of eminent domain could be profitably directed at these creatures.
Ray Schoch in Minneapolis on Fri, Dec 04, 2009 at 6:40pm
When I was serving on the planning commission of a small city (60,000) on the Colorado Front Range a few years ago, a local developer managed to get several hundred acres declared “blighted” by several of the standards listed above. The designation allowed the developer to get tax breaks and some other special treatment from the city as part of the process of forming an “urban renewal district.”
Why should that be worthy of note? The “blighted” land/urban renewal district was made up entirely of farm fields. which, understandably, frequently lack adequate streets, infrastructure, “public improvements,” and in this particular case, sidewalks. Having spent my high school years on a farm/ranch raising cattle, quarter horses and alfalfa, I can’t say the lack of sidewalks was something often complained about over the dinner table, but the city’s city council was desperate enough for sales tax revenue that they were willing to go along with the sham, and the city manager seemed very much in the pocket of the developer
Neil Freeman’s comment above strikes me as on the mark. Having served on two different planning commissions in two different communities, I have to endorse his statement about the lack of a democratic equitable planning process in most situations. By the time the public has a chance to weigh in on most proposals, the deal has already been struck over lunch at comfortable restaurant. There are exceptions, of course, but they’re notable primarily because they ARE exceptions, not the norm.
michael galinsky in brooklyn on Mon, Dec 07, 2009 at 11:54am
I thought you might be interested in a 6 year documentary that we have been making about the Atlantic Yards situation. In the updates section we have posted several rough cut and deleted scenes- including our main character reading from the Thomas decision…
http://www.kickstarter.com/projects/rumur/battle-of-brooklyn
Norman Oder on Mon, Dec 07, 2009 at 1:58pm
Regarding that Atlantic Yards photo, keep in mind that only the foreground/right is part of the Atlantic Yards site, Vanderbilt Avenue between Pacific and Dean streets, and that some buildings already have been demolished.
The left (east) side of Vanderbilt Avenue is not part of the site. Nor is the background/right, which includes thriving businesses along Vanderbilt Avenue.
Should the project continue, Vanderbilt between Pacific and Dean will become part of a surface parking lot for more than 1000 cars.
For a look at the neighborhood, see Tracy Collins’ AtlanticYardsPhotoBook.com.
Collins also shows how the “blighted” block pictured above would be bookended by two fingers of the new Prospect Heights Historic District. See:
http://atlanticyardsreport.blogspot.com/2009/06/prospect-heights-historic-district.html
And I’ve culled New York Times Real Estate section coverage:
http://atlanticyardsreport.blogspot.com/2006/10/21-years-of-prospect-heights-blight.html
William S in Cambridge, MA on Fri, Dec 25, 2009 at 12:38am
I think this is such a great topic. I do believe the term “blighted” is a nebulous one. Like Ray Schoch, I’ve observed firsthand the term being stretched to the limits of its possible meaning for developer funding purposes. In Gainsville, FL I was sent as part of a team from an urban planning firm to gather evidence for a developer that would make a large section of the city qualify as a blighted area. When we arrived, we found the site in question to be on the edge of the city limits and 90% undeveloped greenfields with the rest being suburban housing developments more than 15 years old. We took pictures of any trash we could find on the grounds, looked for puddles, lack of sidewalks, etc. I’m not sure if the area ever received its “blighted” designation, but It seemed like a farce.
Lee on Sun, Jan 03, 2010 at 5:06pm
That definition of blight sounds like it describes most of America’s sprawl. I wouldn’t normally agree with eminent domain for this kind of economic development, but I wouldn’t argue against using it to reurbanize the suburbs.
Cannoneo on Sun, Jan 17, 2010 at 9:44pm
Dudley Street Neighborhood Initiative in Boston is often cited as an eminent domain success. It claims to be the only community nonprofit ever granted such authority. The area did dramatically improve, by fostering locally owned growth rather than luring in outside business. http://www.dsni.org/history.shtml