Author: Timothy Sandefur
California’s Redevelopment Agencies—the government institutions that exist for the purpose of using eminent domain to take private property from people and give it to developers that bureaucrats think will do better things with it—have been feeling a bit threatened lately. We’ve monitored Gov. Jerry Brown’s efforts to rein in their abuses. Now, they’ve proposed legislation called AB 1250, which, like Proposition 99 a few years ago, is designed to provide some window-dressing “reforms” while in fact preserving government’s power to seize land for the benefit of politically well-connected developers. You can read the bill here.
The RDAs claim that the bill will “tighten the definition of blight.” In fact, it does not do so.
Section 33031 of the California Health and Safety Code defines the word “blight,” and AB 1250 does not change that section at all. This is problematic because the standards for “blight” are extremely vague: they include things like “nearby incompatible land uses that prevent the development,” “a high crime rate,” or “conditions that prevent or substantially hinder the viable use or capacity of buildings or lots.” What exactly do these phrases mean? Answer: whatever the government says they mean.
AB 1250 does not change these criteria. Instead, it says that before the redevelopers can take your property, they have to make a finding that blight exists and that this finding
shall be supported by empirical and, to the greatest extent feasible, quantifiable evidence demonstrating the prevalence of specific conditions set forth in Section 33031 on specific properties that are so substantial that they cause a reduction of, or lack of, proper utilization of the entire project area. Evidence shall be reasonable in nature, credible, and of solid value. Conclusions not based on documented evidence of specific conditions shall be deemed insufficient.
That all sounds nice, especially since we’ve seen so many cases of government passing blight designations on the basis of extremely flimsy pseudo-evidence like “windshield surveys.” (Don't forget the snacks!) But note that it doesn’t require that blight exist on all the properties that are going to be condemned, and it doesn’t say what sort of “empirical” evidence is required. On the contrary, it uses the “reasonable in nature, credible, and of solid value” language—which lawyers will recognized as the most lenient standard of review that courts use. This so-called “substantial evidence” rule—which is already the law in California—means that virtually anything short of pure speculation will qualify. And while it speaks of “specific conditions,” these “conditions” are the ones already listed in section 33031.
In short, AB 1250 only requires the government to provide “empirical evidence” that there are “conditions that substantially hinder the viable use of buildings,” and that this “causes a reduction of proper utilization” of property in the area. What kind of reduction qualifies? What kind of utilization is “proper”? Property owners are not protected by a rule that requires “empirical evidence” of the existence of such vague factors. If the law required “empirical proof” that something was “good,” for example, that wouldn’t help define the word “good.” So long as undefined terms like “proper utilization” or “viable use”” or “substantially reduce” are kept in section 33031, no talk about “empirical evidence” will protect people from eminent domain abuse.
Under this statute, for example, a city could declare a neighborhood “blighted”—and therefore condemn even non-blighted property in that neighborhood—if it hires a consultant to take photographs of dilapidated buildings in the area. That would be “empirical” evidence of “conditions” that “substantially reduce” the “proper utilization” of property in the neighborhood. And, of course, that is what even the most abusive redevelopment agencies already do.
It is therefore a lie to say that AB 1250 tightens the definition of blight. It does no such thing. It does not touch the definition of blight in any way whatsoever. It simply incorporates the extremely lenient “substantial evidence” test that California courts already use when evaluating a city’s claim that a neighborhood is blighted.
The Redevelopers also claim that AB 1250 would “implement strict, performance-based standards.” Again, this is not true. The bill would require the government to devise ways of measuring the performance of redevelopment agencies in certain specific things—but not in other things. So the bill would require the government to devise a way of “calculating and reporting job creation and retention.” How does one calculate job retention? The very concept is meaningless, but aside from that, note that this does not require the government to calculate or report job loss resulting from the seizure and condemnation of small businesses—a very common occurrence in major eminent domain projects. Only the good news has to be reported—not the bad news.
And the rest of these “performance-based standards” are the same way: AB 1250 requires the government to carefully document only the (alleged) benefits of redevelopment—not its costs. One of the things most obviously missing from the “standards” and “measurements” is anything relating to the number of properties seized through eminent domain, or the number of lawsuits brought, or the amount of money spent on condemnations cases. This part of the bill would create an annual piece of lop-sided propaganda, not an objective analysis of the costs and benefits of the redevelopment agencies that, under AB 1250, would continue to brandish the power to condemn whole neighborhoods on the basis of vague statutory criteria and with no genuine accountability.
Consider what AB 1250 does not do: