Let There Be Blight

LET THERE BE BLIGHT: How Missouri’s Cities Define Away Citizens’ Property Rights



“All persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry… to give security to these things is the principal office of government, and… when government does not confer this security, it fails in its chief design.” Mo. Const.

Art. I, § 2.



“No person shall be deprived of life, liberty, or property without due process of law.” Mo. Const.

Art. I, § 10.



“Private property shall not be taken or damaged for public use without just compensation.” Mo. Const. Art. I, § 26.



“Private property shall not be taken for private use with or without compensation… [and] when an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that the use is public.” Mo. Const.

Art. I, § 28.



Police Power 





Power to infringe upon a citizen’s life, liberty, or property in order to protect the health, safety, or welfare of others in the community.

May not be exercised without providing “due process of law.”

Restrictions on life liberty or property must be directly targeted at the harm they are intended to prevent.



Eminent Domain 





Power to compel a private citizen to give up their private property for a public use, in exchange for just compensation.

Founders anticipated the use of this power when necessary to facilitate the construction of publiclyowned improvements, such as roads or public buildings.

The Fifth Amendment was designed to prevent abuse of this power by restricting its application to public uses, when just compensation had been paid.





Police power could be exercised to punish harmful uses of property, including the demolition of houses whose condition had become a danger to the health, safety, and welfare of the community—but the property’s title remained with its owner.

Eminent domain was necessary to restrict or terminate a person’s ownership interest in their property.

       

1882 – Restrictions on property rights are void where “passed under a specious pretence of being preservative of the health of the inhabitants.”

1898 – City may not restrict citizens’ use of property without providing just compensation.

1911 – City allowed to remove billboards only because evidence showed their lots were being used as “privies” and “dumping grounds.”

1912 – Legislature denied the authority to prohibit the operation of barber schools.

1923 – City may not prohibit the operation of a junk yard in an industrial area.

1923 – City may not impose merely aesthetic restrictions on an individual’s property.

1923 – City may impose zoning restrictions if compensation is paid to affected owners.

1927 – City may impose zoning restrictions without compensation.







During the Depression, landlords let many urban neighborhoods fell into serious disrepair.

City officials wanted to take the property in these slum neighborhoods so they could be replaced with public housing projects.

In order to make these takings constitutional, the state added Article VI, section 21 to the Constitution of 1945.

ď Ž

“Laws may be enacted, and any city or county operating under a constitutional charter may enact ordinances, providing for the clearance, replanning, reconstruction, redevelopment and rehabilitation of blighted, substandard or insanitary areas, and for recreational and other facilities incidental or appurtenant thereto, and for taking or permitting the taking, by eminent domain, of property for such purposes, and when so taken the fee simple title to the property shall vest in the owner, who may sell or otherwise dispose of the property subject to such restrictions as may be deemed in the public interest.�



When Article VI, section 21, was adopted, “blight” clearly referred to areas of a municipality that threatened the health, safety, and welfare of the community, like the slums cities were trying to eliminate.





Rather than clearly establishing a constitutionallybased definition of “blight,” however, Missouri courts opted to let municipalities create their own definitions.

Ever since, when a city or county determines an area to be blighted, the courts almost never scrutinize that determination, leaving citizens’ property rights solely at the mercy of their local officials.



“Negro removal” 





A 1989 study estimated that of 10,000 families that Baltimore displaced in the name of removing blight, fully 90 percent were African-American.

Mindy Fullilove, an expert on the impact of eminent domain on minority communities, estimates that more than 1,600 black neighborhoods have been destroyed nationwide.

Economic Development 

Replacing low-tax occupants (like the elderly, small businesses, and houses of worship) with high-tax occupants (like Wal-Mart, Costco, and Crate and Barrel).







May be used even if target property is soundly constructed and not insanitary, blighted, unsafe, obsolete, dilapidated, or dangerous to the health, safety, or morals of the community.

Citizens must meet an extraordinary burden of proof as to why they should be allowed to keep what belongs to them.

Power may be delegated to unelected administrative agencies.







Legislative determinations that eminent domain is necessary to alleviate blight are entitled to neartotal judicial deference.

Even never-developed land may be considered “blighted.”

Cities may take profitable property from one private owner and give it to another private owner to operate in precisely the same manner.





Courts—not municipal legislators—must establish precisely what the authors of this section meant by “blight.

Eminent domain should only be permitted if: 



The targeted properties constitute a genuine, demonstrable threat to the community’s health, safety, and welfare; and The proposed taking is legitimately related to the removal of that threat.