Legal Commentary

George Will on ?Blight? Condemnations in New York

By Ilya Somin

George Will has written a Washington Post column on the abuse of ?blight? condemnations in New York:

On Aug. 27, 1776, British forces routed George Washington?s novice army in the Battle of Brooklyn, which was fought in fields and woods where today the battle of Prospect Heights is being fought. Americans? liberty is again under assault, but this time by overbearing American governments.

The fight involves an especially egregious example of today?s eminent domain racket. The issue is a form of government theft that the Supreme Court encouraged with its worst decision of the past decade ? one that probably will be radically revised in this one.

The Atlantic Yards site, where 10 subway lines and one railway line converge, is the center of the bustling Prospect Heights neighborhood of mostly small businesses and middle-class residences. Its energy and gentrification are reasons why 22 acres of this area ? the World Trade Center site is only 16 acres ? are coveted by Bruce Ratner, a politically connected developer collaborating with the avaricious city and state governments.

To seize the acres for Ratner?s use, government must claim that the area ? which is desirable because it is vibrant ? is ?blighted....?

The Constitution says that government may not take private property other than for a ?public use....? In 1954, however, in a case concerning a crime? and infectious-disease-ridden section of Washington, D.C., the court expanded the notion of ?public use? to include removing ?blight.?

Since then, that term, untethered from serious social dangers, has become elastic in the service of avarice....

I discussed the state high court decision upholding the Atlantic Yards condemnations in this post. For my earlier analyses of the case, see here and here. Will?s column also discusses the recent court decision striking down Columbia University?s efforts to use eminent domain to acquire supposedly ?blighted? property, a case I discussed here.

As I explained in the earlier posts linked above, New York jurisprudence is perhaps the most hostile to property rights in the entire country. However, the general problem of overbroad definitions of blight exists in many states. Unconstrained definitions of ?blight? undermine the efficacy of many states? post-Kelo eminent domain reform laws, which forbid ?economic development? condemnations but allow the same types of takings to continue under the guise of blight alleviation, an issue I discussed in detail in this article.

It is fortunate that a columnist as prominent as Will has taken up this issue. Hopefully, his contribution will increase awareness of the problem.

Full post as published by The Volokh Conspiracy on January 04, 2010 (boomark / email).