Can My Property Be Taken for Urban Renewal Purposes and Transferred to a Private Redeveloper Even If It’s Not Blighted?

This Article is written by Owners’ Counsel of America for general informational purposes only.  It is intended to assist landowners by providing them with some basic information about the legal concept of  “blight” as used by urban renewal authorities to justify the accquisition of private property for redevelopment purposes. This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an experienced eminent domain, takings or property rights lawyer on the matters covered herein. The definition of all hyper-linked terms can be found in the Dictionary of Key Terms on the OCA Website.

Some History First

In the early 1900’s a movement got underway in the United States aimed at addressing so called “slum areas,” where decrepit, unsafe, or dilapidated housing was thought to be the cause of social ills and even crime. Reformers felt that the only solution to this problem was to demolish the existing “slums” and replace them with newer, better, and safer housing.

By the 1940’s this movement had shifted to areas that did not meet the definition of a “slum,” but were nonetheless run down and in a state of disrepair. This shift led to a new term to describe the physical conditions at issue: “blight.” Land and urban planners argued that blight was caused by lack of planning, which could be rectified by a detailed program for urban revitalization. Under such a program, the government would identify a blighted area and then create a comprehensive plan to redevelop that area. Once the plan was completed and agreed to by the government authorities, private properties within the designated area could be taken by the exercise of the government’s eminent domain power and thereafter transferred to private redevelopers who would implement the approved development plan.

By the 1950’s, the urban renewal movement was in full swing in many U.S. cities, with entire communities being eradicated in its’ name. When the practice was challenged in the courts, the U.S. Supreme Court weighed in on the debate in 1954 issuing a landmark decision in Berman v. Parker. Unfortunately, the court ruled in favor of the government,  a decision which  led to an even more dramatic expansion of urban renewal takings across America.

One of the most unfortunate results of the urban renewal movement was its disproportionate impact on communities of color.  Over the last several decades countless minority homes and businesses were effectively taken and then destroyed, allowing for vast amounts of vacant land to be turned over to private redevelopers. In many of these cases the government’s blight findings were either baseless or without reasonable foundation and evidence.

What is Blight?

Blight is a legal term used solely for the purpose of determining whether a neighborhood or commercial area can qualify for redevelopment through urban renewal.

Blight, by dictionary definition, describes conditions that are deteriorated, dilapidated, or  decayed.  The popular impression of blighted conditions (due in large measure to how government bodies have depicted them to serve their own purposes) includes images of run‐down houses,  dilapidated structures, and abandoned property.

But because there is no uniform definition of blight, and because it is often open to subjective interpretation, and finally because statutes characterizing what is and what is not blight differ from state to state—there is significant room for mischief and even abuse in how final blight determinations are made in order to justify the condemnation of private property and its transfer to other private parties.

As examples of how subjective and even vague a blight determination can be, here are some of the common factors (among others) that government bodies and urban renewal authorities often consider in determining whether a home, neighborhood or communitiy is blighted:  (1) defective or inadequate street layouts (2) broken windows (3) cracked sidewalks (4) faulty lot designs (5) title defects (6) lack of parks or open spaces and (7) lack of storm drainage or other utility facilities etc.

What if my Home or Business is Not Blighted?

Even in communities where there is substantial evidence of neglect and disrepair leading to a blight finding, there is bound to be homes and businesses that are well cared for and in good (perhaps even excellent) condition. In recognition of this fact (and to make the acquisition and transfer process easier to accomplish) many urban renewal laws contain provisions that allow for entire neighborhoods to be taken, even if the blight is only concentrated in certain parts. In other words, most urban renewal laws do not require that blight be found on a “parcel-by-parcel” basis, but rather on an area wide basis only.

Some Positive Changes

Motivated in part by the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London, in the last decade many state legislatures have  adopted proposals amending their urban renewal statutes in order to limit the government’s ability to condemn property for private redevelopment purposes. Some of these measures recognized past abuses in how blight determinations were made and how urban renewal laws and policies were carried out. Legislative changes took several forms, including (1) narrowing the definition of what constitutes blight or making it harder to prove that blight exists (2) approving procedures to prevent non-blighted properties from being included in designated blight areas (3) providing impacted property owners greater due process rights in order to challenge and/or oppose blight determinations and redevelopment plans and (4) in some instances precluding altogether the use of the eminent domain power for private econonmic development and tax revenue generation.

What Should I Do If My Property is Being Considered For a Blight Determination and Redevelopment?

If your property is being considered for a blight determination or redevelopment plan, don’t think that there is nothing you can do. As discussed below,  there are actions you can take which may make a difference.

First, familiarize yourself with the blight and urban renewal laws in your community to make sure you understand them fully, including how they are being applied in your specific case.  In many instances, these laws must be followed strictly and if the government is not adhering to the law as written, this could provide you with an opportunity to challenge the actions being taken. Remember that adherence includes not only the substantive laws, but those that govern the procedures and processes that must be followed. It is not uncommon that government bodies and urban renewal authorities fail to follow the proper procedures with respect to notice, hearings, and necessary findings before their actions are deemed valid and enforceable.

Attend all public hearings or neighborhood meetings regarding the government’s redevelopment plans to learn as much as you can about the project, the urban renewal plan, the blight process and other important events. Use these opportunities to make your voice and your concerns heard.

Blight findings generally must be based on a written appraisal, study or report performed by a qualified blight specialist. Obtain a copy of this document and study it carefully to determine the factual basis for the conclusions reached. If you disagree with those conclusions and have the opportunity to voice your concerns, do so.

In most situations, you will not be alone in contesting an anticipated redevelopment plan or an underlying blight determination, as the very nature of urban renewal projects is to impact entire neighborhoods or communities. Thus, consider banning with other similarly situated home or business owners to bring unified pressure and opposition to the plan or project being considered. Citizen and grassroots efforts have been extremely successful in getting government bodies or urban renewal authorities to make meaningful  changes to plans or policies or even to decide not to move forward at all.

Finally, consider retaining an experienced land use or eminent domain lawyer to advise and assist you as this can be a very complicated area to navigate on your own.