by Timothy Sandefur
This week, the Pacific Legal Foundation joined forces with the Show-Me Institute and the Missouri Ombudsman for Property Rights to argue that the Missouri Supreme Court should reject the use of so-called “windshield surveys” to decide when to take people’s property through eminent domain. “Windshield surveys,” as the name suggests, are prepared by consultants who drive through the neighborhood, and then go back to their offices and write up a superficial analysis supporting local officials’ decision to seize people’s property and give it to private developers.
These “windshield surveys” have been repeatedly criticized by courts in California already, but they’re used in many different states. In the Missouri case, Cortex West Redevelopment Corporation v. Station Investments #10 Redevelopment Corporation, officials in St. Louis decided to take a privately owned warehouse and give the property to a development company to build an industrial park. Missouri law, of course, only allows this kind of Kelo-style taking if the property is “blighted,” so, needing to rationalize the condemnation, the city hired a consultant to drive through the neighborhood and write up a report which would cover the necessary bases.
The resulting report contains only a single page purporting to show that the buildings in the neighborhood are blighted and need to be replaced. And that page is made up of a wholly subjective “analysis,” which categorizes buildings as “good” or “poor” or whathaveyou based on the author’s observations from the street or the sidewalk.
The superficial and subjecvtive nature of these drive-by blight determinations has led several California appellate courts to reject reliance on them, noting that they cannot provide the kind of real evaluation necessary to prove that the use of eminent domain is necessary. In our brief, we urge the Missouri Supreme Court to reject their use, also. Given the fact that Missouri courts have refused for so long to enforce the “public use” requirement in the state Constitution, the only hope Missouri home and business owners have is that courts will at least require government to meet high standards when the determination of “blight” is concerned.
If they do not, and local bureaucrats can not only take property whenever it’s “blighted” but also determine without judicial oversight what property counts as blighted, then those officials will have limitless power to redistribute property at will.