Real Estate & Property Law

Blight

By Alan Ackerman

WSJ.com

U.S. Supreme Court rulings on property law don't often serve as clarion calls to wide swaths of the population. But most rulings aren't Kelo v. City of New London.

States long have had the power to condemn private property for such purposes as building highways or bridges. But in the 2005 Kelo ruling, the court held that governments also can take property for the purpose of promoting "economic development," a broader justification than the court had previously allowed.

The ruling led to a widespread backlash, with more than 40 states passing laws in recent years aimed at limiting the power of so-called "eminent domain," including measures to remove "economic development" as a justification for seizing property.

But in many states the effort to blunt the impact of the Kelo ruling has proven elusive, say some property-rights advocates and academics. The problem, they say, is that many states still authorize the seizure of property that is deemed "blighted," a term often defined so broadly that it enables "virtually any property to be condemned," says Ilya Somin, a professor at George Mason University School of Law.

As a result, property-rights advocates say, states should adopt legislation that redefines blight. "It should be confined to true nuisance properties that pose a direct threat to public health and safety," says Scott Bullock, a lawyer for the property owners in the Kelo case.

Eminent domain undoubtedly can serve as a useful tool for cities, say D. Benjamin Barros, a property-law professor at Widener Law School. He cites the seizure of the area where New York's Lincoln Center was built, which helped revitalize Manhattan's Upper West Side. Still, he says, many states' blight laws need reform. "Blight is so broadly defined in many states it gives governmental authorities almost unlimited power to use eminent domain."

Many jurisdictions, which now limit eminent domain proceedings for blighted properties continue to have to deal with the question of how to determine what is a 'blighting' influence.  With the forthcoming destruction of neighborhoods due to the foreclosure melt down, the issues will be at the forefront shortly.

Full post as published by National Eminent Domain Blog on May 03, 2009 (boomark / email).