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17 In its response to the survey, Caltrans observed that nomic development and private commercial enterprise," there "are certain areas along major freeways that are the term "public use" does include "[t]he acquisition of currently being widened that perhaps have been desig- real property to remove structures beyond repair, public nated blighted by the local jurisdiction" but there was nuisances, structures unfit for human habitation or use, no "specific knowledge of a `blighted' designation [with and abandoned property when such structures or prop- respect to] communities."185 The department's response erty constitute a menace to health and safety."193 observed that the processes for its right-of-way activi- Oregon's response to the survey stated that in Ore- ties do not change in regard to blighted versus non- gon, "[i]n the realm of using condemnation for urban blighted designations but that the involvement of redevelopment, the definition of `blighted property' was blighted property "may have an impact...in the plan- modified to include actual physical deterioration of tar- ning stages when investigating environmental justice get properties."194 issues on a given alignment."186 Under some states' statutes that permit takings of As for cases involving post-Kelo reforms and takings blighted property, the condition of streets is a factor of blighted property, a Louisiana case concerned an that may be considered in determining whether an area amendment of the Louisiana Constitution;187 the court is blighted and whether the use of eminent domain is held that the property at issue had "not been taken for permissible.195 In an Illinois case, the court upheld a the predominant use of a private party nor for the pur- village's determination of blight in connection with a pose of transferring the property to a private person."188 redevelopment project based on various statutory fac- The court held that Louisiana's constitutional proscrip- tors. One of the factors was deterioration, which was tion that defined by the statute to include the condition of road- "property shall not be taken...(a) for predominant use by ways, alleys, curbs, gutters, sidewalks, and off-street any private person or entity; or (b) for transfer of owner- parking, as well as the presence of crumbling pave- ship to any private person or entity"...merely prevents ment, potholes, depressions, and loose paving mate- expropriations initiated with the goal of transferring pri- rial.196 vate property to a specific recipient, rather than as a bar to expropriation with a legitimate basis that may include C. Designation of Blight on a Property-by- a subsequent transfer.189 Property Basis No cases were located for the digest since the Kelo One of the most pervasive post-Kelo reforms in decision or post-Kelo reforms that involved a transpor- states authorizing the taking of blighted property is to tation department and a taking of blighted property. require that a condemnor make a determination of blight on a property-by-property basis.197 As a result of B. Definition of Blighted Property post-Kelo reforms, Georgia limits takings of blighted Unlike Florida and New Mexico, it does not appear property to one property at a time so that it is no longer that other states prohibit the use of the taking of blighted property for transfer to another person or pri- vate entity for redevelopment.190 In response to the Kelo case, some statutes have been amended to narrow the 193 definition of blight. Thus, some states revised their N.H. REV. STAT. §§ 205:3-b(I)(c) and 498-A:2(VII)(a)(3). definition so that property may be designated as See also OHIO REV. CODE ANN. § 1.08(C) (stating that in "de- termining whether a property is a blighted parcel or whether blighted and subject to redevelopment when it is shown an area is a blighted area or slum for the purposes of this sec- that the property is unsafe191 or when it presents a tion, no person shall consider whether there is a comparatively threat to the health and safety of the community.192 better use...or whether the property could generate more tax In New Hampshire, although a public use does "not revenues if put to another use"). include the public benefits resulting from private eco- 194 Oregon DOT's Survey Response, dated Mar. 10, 2011. 195 N.H. REV. STAT. ANN. § 205:1(d) (street layouts as a fac- of eminent domain is delegated may not exercise the power of tor preventing proper development of the real property). See eminent domain to take private property for the purpose of Fulmore v. Charlotte County, 928 So. 2d 1281 (Fla. 2d DCA preventing or eliminating slum or blight conditions"). 2006) (stating that although "roads and roadways are synony- 185 Caltrans' Survey Response, dated Mar. 18, 2011. mous, a substantial number of deteriorated or deteriorating 186 Id. roads is a different concept than a predominance of defective or 187 inadequate roadways"). LA. CONST. art. 1, § 4(B). 196 188 Capital Fitness of Arlington Heights, Inc., v. Village of New Orleans Redevelopment Auth. v. Johnson, 16 So. 3d Arlington Heights, 394 Ill. App. 3d 913, 923, 915 N.E.2d 826, 569, 583 (La. App. 2009). 189 835 (Ill. App. 2009) (citing 65 ILL. COMP. STAT. 5/11-74.4- Id. at 584 (emphasis supplied). 3(a)(1)(C)), appeal denied, 234 Ill. 2d 518, 920 N.E.2d 1071 190 Castle Report, supra note 40. (2009). 191 ALA. CODE § 24.2-2(C)(c)(1); GA. CODE ANN. § 22-1- 197 Alabama, Arizona, Georgia, Iowa, Kansas, Louisiana, 1(1)(A)(i); KAN. STAT. ANN. § 26-501b(e). Michigan, Missouri (until a preponderance are blighted), North 192 DEL. CODE ANN. tit. 29, § 9501A(c)(3)(b); N.H. REV. STAT. Carolina, Oregon, Texas, West Virginia, Wisconsin (each spe- ANN. §§ 205:1(b) ("menace to the health and safety") and 498- cific property must be blighted), and Wyoming. See Castle Re- A:2(VII(a)(3)); WYO. STAT. § 1-26-801(c). port, supra note 40.