Saint Louis University School of Law Scholarship Commons

All Faculty Scholarship

2017 Shattering 'Blight' and the Hidden Narratives that Condemn Patricia Hureston Lee Saint Louis University School of Law

Follow this and additional works at: https://scholarship.law.slu.edu/faculty Part of the Housing Law Commons

Recommended Citation Lee, Patricia Hureston, Shattering 'Blight' and the Hidden Narratives that Condemn. Seton Hall Legislative Journal: Vol. 42, Iss. 1, Article 2, 2017.

This Article is brought to you for free and open access by Scholarship Commons. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of Scholarship Commons. For more information, please contact [email protected], [email protected]. LEE 2017

SHATTERING ‘BLIGHT’ AND THE HIDDEN NARRATIVES THAT CONDEMN

Patricia Hureston Lee*

I. INTRODUCTION ...... 30 II. BLIGHT AND THE PROBLEM WITH TAKINGS ...... 32 A. The Problem: Condemnation and Takings Based on Blight ...... 33 B. The Constitution and Case Law ...... 33 C. Blight Stories Nationally ...... 36 III. WHAT IS THE BLIGHT FRAMEWORK? ...... 41 A. Blight Terminology ...... 43 i. History, Etymology and the Metaphor ...... 43 ii. Difficulty of the Blight Designation ...... 48 iii. Legislative Codification of Blight ...... 51 B. Blight False Narratives ...... 55 C. Blight Decision-Making ...... 62 IV. EVOLUTION OF BLIGHT CONDEMNATION ...... 66 A. Blighting St. Louis Place ...... 67 B. Intertwining of Race, Property and Blight ...... 73 C. From Seventy Years to Sixty-Days ...... 77 V. DESIGNING SOLUTION ...... 78 A. Stop Defining Distressed Communities as Blighted ...... 80 i. Urban or Rural Depopulating Areas ...... 80 ii. Isolated Areas ...... 81 iii. Contaminated or Brownfield Areas ...... 82 iv. Flooded Area ...... 82 B. Continue to Reform State Legislation ...... 83 i. Reform Blight Statutes and Replace them with Model

* Associate Professor of Law, Saint Louis University School of Law, Legal Clinic Director and Faculty Supervisor, Entrepreneurship and Community Development Clinic. I am very grateful for the insights from faculty at Albany Law School and Northern Kentucky Law during their works in progress events; participants at the Association of Law, Property and Society (ALPS) conference at the University of Michigan Law School; Saint Louis University Law School colleagues, Miriam Cherry, Chad Flanders, David Kullman, David Lander, Yvette Liebesman, Dana Malkus, Carol Needham, Peter Salsich, Constance Wagner, Anders Walker; the Seton Hall Legislative Journal students, Akshar Patel and Stephanie Beach; and for research assistance from Miles Monson, Darryl Lee and Sarah Tomlinson.

29

Electronic copy available at: https://ssrn.com/abstract=3099807 LEE 2017

30 SETON HALL LEGISLATIVE JOURNAL [Vol. 42:1

Legislation Similar to Florida ...... 84 ii. Reform the Required Vote by Local Decision-Makers to a Super-Majority Decision ...... 84 iii. Reform Relocation Timelines...... 85 iv. Reform Legislation Related to Attorneys’ Fees ...... 85 C. Start a Grassroots Movement to Create Real In-Time Solutions ...... 87 i. Negotiate Community Benefit Agreements ...... 87 ii. Resist False Narratives ...... 87 iii. Innovate ...... 87 VI. CONCLUSION...... 88

“The people on the bottom are giving up their land for the people on the top.”1

I. INTRODUCTION Tilting at windmills is an expression used to describe Don Quixote’s battle against perceived giants that everyone else sees merely as windmills.2 This expression can also describe the predicament of property owners from St. Louis Place, a neighborhood in St. Louis, Missouri. These owners fought against a combination of case law, statutes, governmental condemnation decisions and an unflattering narrative to save their property. In the end, St. Louis Place property owners might as well have been fighting windmills. Many parties play a role in property takings from property owners in distressed communities, as exe