Thursday, June 30, 2005

Eight Simple Rules for Taking My Teenage Daughter's Property

The Kelo decision has raised some fervorous discussions on the blogosphere, not all of which are completely informed, and a large percentage of which a fairly paranoid.

A couple points I'd like to raise:

(1) The negative reaction to the Kelo decision seems to blur the distinction between what is happening and what might happen. This is intertwined with the other blurred distinction: the difference between politics and law. While the law, apparently, has made a ruling, the political actors are the ones who ultimately will have to play this game. Hopefully, the system is set up so that there are significant checks and balances and enough transparency to make the process legitimate. As Fester said to me, under Federalist 10, you're hoping that there are enough competing parties out there to weed out the bad stuff.* Ultimately, however, the power to remove local politicians is in the hands of the electorate; that power we still retain.

(2) Eminent Domain practice, as alluded to in the majority opinion, is very much a localized practice. Personally, I've never, ever heard of a taking explicitly justified for economic development reasons, except the aborted Heinz/Pittsburgh Wool deal. [Chances are, if the Heinz/Pittsburgh Wool deal had gone through, it would have been rejected for explicitly conveying private benefits through a public taking, with only ancillary public benefits.] Kelo argues, in part, that State Legislatures need to set up their rules of what defines Public Purpose & Use, not the Federal Government.

(3) Finally, as I said before, I've never, ever heard of Eminent Domain used for explicit economic development reasons as listed in the Kelo case. I know that the Public School system can take property for Public Schooling purposes, Water & Sewer Authorities can take property for Public Infrastructure purposes, Housing Authorities can take property for Public Housing purposes, and Redevelopment Authorities can take property for Blight Elimination Purposes. The last one is, of course, the most fuzzy of all the "Public Purposes."

Of course, under Pennsylvania Urban Redevelopment Law (35 P.S. section 1701 et. seq., as amended), section 1712.1 § C states, "Blighted property shall include:

(1) Any premises which because of physical condition or use is regarded as a public nuisance at common law or has been declared a public nuisance in accordance with the local housing, building, plumbing, fire and related codes.

(2) Any premises which because of physical condition, use or occupancy is considered an attractive nuisance to children, including but not limited to abandoned wells, shafts, basements, excavations, and unsafe fences or structures.

(3) Any dwelling which because it is dilapidated, unsanitary, unsafe, vermin-infested or lacking in the facilities and equipment required by the housing code of the municipality, has been designated by the department responsible for enforcement of the code as unfit for human habitation.

(4) Any structure which is a fire hazard, or is otherwise dangerous to the safety of persons or property.

(5) Any structure from which the utilities, plumbing, heating, sewerage or other facilities have been disconnected, destroyed, removed, or rendered ineffective so that the property is unfit for its intended use.

(6) Any vacant or unimproved lot or parcel of ground in a predominantly built-up-neighborhood, which by reason of neglect or lack of maintenance has become a place for accumulation of trash and debris, or a haven for rodents or other vermin.

(7) Any unoccupied property which has been tax delinquent for a period of two years prior to the effective date of this act, and those in the future having a two year tax delinquency.

(8) Any property which is vacant but not tax delinquent, which has not been rehabilitated within one year of the receipt of notice to rehabilitate from the appropriate code enforcement agency."
Just thought I'd share, we can hash out the exact condemnation procedure in the Commonwealth at a later date.

* Of course, the exact quote was laced with more drunken profanity.

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