When you hear the word “blight” used to describe a neighborhood or a property, it conjures up images of squalor and deterioration, maybe even danger. But across the country, more governments seem to attach the word “blight” to private property that really isn’t blighted at all. Dr. Michael Sanera, John Locke Foundation Research Director and Local Government Analyst, discussed the topic with Donna Martinez for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Martinez: Explain how governments are using the blight label in terms of private property.
Sanera: Well, it’s an excuse to get around the Fifth Amendment of the Constitution. The Constitution clearly states that government cannot take private property for a public use without just compensation. Very clear language in the Constitution. But over the years, of course, constitutional provisions have been interpreted, and unfortunately, the Supreme Court has expanded that definition of public use to be almost anything.
Martinez: Used to be, though, public use was something a government needed to build — a road, a bridge, something like that.
Sanera: Right — a bridge, a road, a school, a park — something that is directly used by the public. And it’s been expanded to public purpose, public benefit. So if it benefits the public, even in a very tangential way such as increasing the tax base, the Supreme Court is allowing that. Well, blight has been used for many years as a way to get around this provision in the Constitution. A local government will declare an area blighted and then go in and use the power of eminent domain to take that property. And generally, they give it to another private owner for some kind of redevelopment. And so this is government central planning to determine what an area should look like instead of letting the market do that.
Martinez: How can they do that, though, if the neighborhood really isn’t blighted at all?
Sanera: Well, in the past, what they do is, they find one or two homes that maybe, perhaps are blighted, or they use an expanded definition of blight, as they have in New Jersey and in other places. And in the Kelo decision…
Martinez: You’re talking about Kelo v. City of New London — the Supreme Court case.
Sanera: And so in these cases, they will use an expanded definition. If your gutter, for instance, is hanging down, or if there is a problem with the cracks in the foundation or something, then that will be an excuse to declare that property blighted. And if a certain number of properties within a geographic area are blighted, then the whole area becomes blighted. They may be taking perfectly good $500,000 homes in a blighted area that they want because the new developer needs a large tract of land for this so-called new development which will improve the community.
Martinez: And they can do this without the consent of the private property owner?
Sanera: Absolutely, because they can use the power of eminent domain. And this has been abused all over the country. Here in North Carolina we have tightened up slightly. The legislature recently said that the property itself must be blighted and not just declaring the entire area blighted. So we have tightened up a little bit, but it doesn’t stop governments from going ahead and using this. It’s also not just the technical process of using eminent domain. When an area has been designated for redevelopment, then it puts the government in a very powerful position to negotiate with people. And they send in negotiators to sign deals without having to use eminent domain. This puts the property owner in a very [problematic] position because they think that, unless I sign this deal, they’re going to take it anyway, and I might be able to negotiate a better deal ahead of time.
Martinez: So there’s some coercion there.
Sanera: Absolutely, absolutely. And we think that a Miranda warning-type situation should go into effect. Whenever the government wants an area, then they should notify all property owners that they have a right to counsel, they have right to an attorney, etc.
Martinez: Now that would be interesting.
Sanera: Right, in order to defend themselves, which they currently don’t do.
Martinez: You mention that this is happening in North Carolina. Tell us what’s going on in Durham, for example.
Sanera: Well, there’s an area in Durham where they have conducted a survey and designated a vast number of the properties as blighted. This may or may not be the case. I’ve heard conflicting stories about how bad this area is, and by some reports it is a very bad area. Now that doesn’t change the general situation in that it’s not up to government to take this property and give it to another private developer. These are insider deals that are arranged by the government with a particular developer for a particular project. The way that it should be handled if it is legitimately blighted is that property could be taken, but it should be available, not to a designated behind-the-doors redevelopment company, but to the highest bidder. Anybody should be allowed to bid on these properties if they are truly blighted and government needs to take them for public safety reasons. Then it should go to the highest bidder. There shouldn’t be these back-door, behind-the-scenes deals with particular developers. And the city council should not be dictating what the new development is and should look like. There should be market decisions based on the individual buyers of property for what they believe is the best use of that property.
Martinez: Let’s talk about the issue of property rights in a democracy, Michael, because what you’re explaining almost sounds like incrementalism — it starts at one point and then gradually there is a court decision or a legislative move that allows governments even more power. What role do property rights play in a free society?
Sanera: Well, it’s one of the most fundamental roles, and the Founders realized that. That’s why they put the provision in the Constitution. The Founders believed that ownership of private property goes along with democracy. If you’re dependent on the government for your living — as in the Soviet Union — when you worked in a factory that was owned by the government, you couldn’t speak out against the government because you could lose your job. If you had to live in an apartment — as in the Soviet Union — that was owned by the government, you couldn’t speak out against the government because you would lose your apartment. So the independence that is created by private property is one of the fundamental aspects of a free society. If you have that independence that you earn your income from your private property, then you can and will speak out against the government. The American Revolution was by independent owners of property against the King of England, who wanted to take their property rights away from them. That’s why these fights over eminent domain, over blight, over government deciding what the best use of property is, are so important.