Eminent Domain Loopholes

Timothy Sandefur has an op-ed piece in the Whittier Daily News pointing out the many loopholes in California law that allows property to be seized for redevelopemnt projects and the dishonesty used to claim that there are adequate safeguards currently. As my consulting firm prepares to put a referendum on the ballot here in Michigan, we are expecting similar arguments based upon a recent court case, Wayne v Hathcock. Sandefur, incidentally, filed briefs in that case as well. This decision reversed the infamous Poletown decision and would appear to offer far more protection against such eminent domain claims in Michigan; unfortunately, it has many similar loopholes.

For instance, Hathcock says that a redevelopment project might pass muster if the "controlling purpose of the condemnations is the removal of blight or slums that endanger the public health, morals, safety, and welfare." That could easily be used to justify a loophole whereby one could seize, for instance, an adult video store or strip club because the politicians decide that that use "endagers public morals". And under Michigan state law, "blight" is just as loosely defined as it is in California law:

"Blighted area" means a portion of a municipality, developed or undeveloped, improved or unimproved, with business or residential uses, marked by a demonstrated pattern of deterioration in physical, economic, or social conditions, and characterized by such conditions as functional or economic obsolescense of buildings or the area as a whole, physical deterioration of structures, substandard building or facility conditions, improper or inefficient division or arrangement of lots and ownerships and streets and other open spaces, inappropriate mixed character and uses of the structures, deterioration in the condition of public facilities or services, or any other similar characteristics which endanger the health, safety, morals, or general welfare of the municipality, and which may include any buildings or improvements not in themselves obsolescent, and any real property, residential or nonresidential, whether improved or unimproved, the acquisition of which is considered necessary for rehabilitation of the area. It is expressly recognized that blight is observable at different stages of severity, and that moderate blight unremedied creates a strong probability that severe blight will follow. Therefore, the conditions that constitute blight are to be broadly construed to permit a municipality to make an early identification of problems and to take early remedial action to correct a demonstrated pattern of deterioration and to prevent worsening of blight conditions.

So not only is the definition of blight incredibly broad, but state law specifically says that cities and municipalities are to be given even broader discretion to define blight on the supposition of some future increase in whatever they object to. The Hathcock decision did not touch this statute because there was no blight alleged in that case. I would bet that if you searched your state's statutes, you'd find similar language.