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The project area for the New Rochelle site was designated as "blighted"
by the Town of New Rochelle for the purpose of commercial redevelopment
(initially with the idea of bringing in IKEA). Definitions for blight,
established by various legal cases, are often fairly general and broad-scoped.
The Constitution of the State of New York, Article XVIII, Section
3 uses the precedent established by Yonkers v. Morris to define blight
as follows (Yonkers Community Development Agency v. Morris (1975)
37 NY2d 478):
* Factors to be considered
in determining if area is "blighted" and thus subject
to urban renewal condemnation include such diverse matters as irregularity
of the plots, inadequacy of the streets, diversity of land ownership
making assemblage of property difficult, incompatibility of existing
mixture of residential and industrial property, overcrowding, incidence
of crime, lack of sanitation, drain areas makes on municipal services,
fire hazards, traffic congestion and pollution.
* For an area to be termed
"blighted" and thus subject to urban renewal condemnation,
degree of deterioration or precise percentage of obsolescence or
mathematical measurement of other factors do not have to be arrived
at with precision, since combination and effects of such things
are highly variable.
* The term "blighted area" for purposes of urban renewal
condemnation, encompasses areas in process of deterioration or threatened
with it as well as one already rendered useless and may include
vacant land and air rights.
The Urban Renewal Law
from the New York General Municipal Law Section 505defines a "substandard
or insanitary area" as:1
* Interchangeable with
a slum, blighted, or deteriorated or deteriorating area, or an area
which has a blighting influence on the surrounding area, whether
residential, non-residential, commercial, industrial, vacant, or
land in highways, railway and subway tracks, bridge and tunnel approaches
and entrances, or other similar facilities, over which air rights
and easements or other rights of user necessary for the use and
development of such air rights, to be developed as air rights sites
for the elimination of the blighting influence, or any combination
thereof and may include land, buildings or improvements, or air
rights and concominant easements or other rights of user necessary
for the use and development of such air rights, not in themselves
substandard or insanitary, the inclusion of which is deemed necessary
for the effective undertaking of one or more urban renewal programs.
The power of eminent
domain is often used by cities in connection with blighted areas
and to accomplish their plans for urban renewal projects. New Rochelle
has not yet attempted to use eminent domain in the "blighted"
area, but the Constitution of New York, Article XVIII, Section 2
sets precedents that give a city the background on which to pursue
such action, should they decide to do so. The Constitution approaches
the right of eminent domain, generally, with the following statements:
* Where land is found
to be substandard, its taking for urban renewal is for a public
purpose....Summary judgement in urban renewal condemnation case
should be awarded to urban renewal agency if, in the first instance,
it presents to the court an adequate basis upon which it concluded
that land was substandard, and if landowners then cannot show the
agency's determination is without foundation. (Yonkers Community
Development Agency v Morris (1975) 37 NY2d 478.)
* Condemnation to eliminate
areas of intangible physical blight, that is, areas which tend to
create slums or which tend to impair or arrest sound growth of the
city, is a public purpose, redevelopment may properly be accomplished
by private person, and area condemned may thereafter be properly
used for nonresidential purposes, and power thus exercised comes
within provisions of Section 1 of Article XVIII of Constitution
of State of New York even though area is not slum with tangible
physical blight. (Cannata v New York (1961, 2d Dept) 14 AD2d, 221
NYS2d 457.)
* The adoption of this article has not resulted in any express modification
of the view that the power of eminent domain is inherent in the
State, or that the only limitation upon exercise of this power is
that the taking must be for the use in fact public, for compensation,
and pursuant to due process of law. (Cannata v New York (1961, 2d
Dept) 14 AD2d, 221 NYS2d 457.)
As mandated by the Fifth
and Fourteenth Amendemnts of the United States Constitution, the
Town of New Rochelle would need to prove that the eminent domain
is being used for a public purpose and, if this can proved, than
they would need to offer the land owners "just compensation"
for the properties. The definition of public purpose, however, is
often open to interpretation. In the current situation, New Rochelle
wants to redevelop the study area into a commercial site in order
to increase sales tax revenues for the city. The courts have often
found in favor of a town that uses eminent domain and redevelopment
plans to facilitate economic stability.2 Furthermore, the New York
State Constitution, Article XVIII, Section 1, also states that it
is acceptable, and even necessary, for a municipality to use private
entities in order to accomplish redevelopment goals:
* Rehabilitation of substandard
areas is to be a function of private enterprise aided by the government
and it is not a function of government as is low-rent housing for
persons of low income. (Dorsey v Stuyvesant Town Corp. (1949) 299
NY 512.)
* The very purpose of
urban renewal subsidies is to attract new or existing sponsors to
undertake land clearing, the construction and other commitments
the community desires of them, where cost of acquiring land privately,
on a piece by piece basis, would be sufficiently expensive or difficult
to deter private entities. (Yonkers Community Development v Morris
(1975) 37 NY2d 478.)
* Article XVIII, known
as the Housing Article, authorizes the legislature in this section
to provide as it may prescribe for low-rent housing or rehabilitation
of substandard areas or both, and in Article XVIII, Section 2, in
aid of its purposes, to authorize cities to guarantee indebtedness
or authorize tax exemptions. (Davidson v Elmira (1943) 180 Misc
1052.)
Conclusion
The blight condemnation
for the study area is currently being challenged-the residents and
businesses that occupy the area do not believe that their neighborhood
is substandard or insanitary. Under some definitions of blight,
however, our site could qualify-the irregularity of lots, inadequacy
of streets, diversity of land ownership with residential mixing
with industrial, pollution all fall under the definition of blight
and the study area has some of these characteristics. Furthermore,
courts have established that all the properties in an urban renewal
site need not be substandard in order for the site to be considered
blighted. (Courtesy Sandwich Shop, Inc. v. Port of New York Authority.)
3
If New Rochelle does
insist on maintaining the blight condemnation for the study area,
it is advisable that they implement new redevelopment plans in a
reasonable amount of time (in light of IKEA's withdrawal). Sites
that have been condemned and then are not redeveloped can decline
to conditions that are worse than when the site was initially condemned
due to the decrease in property values and the fact that building
permits or home improvement loans will be denied to the residents
of the area.4
1 This is the definition
used in the study that determined the study area as "blighted".
2 Michael D. Zarin, Public Purpose Doctrine in Public/Private Eminent
Domain Transactions, p. 7.
3 Zarin, p. 12.
4 Ibid., p. 21.
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