7. EDSR 09-11-2006 - Laserfiche WebLink

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Section 3 of the bill reverses this rule of law. It creates a new Section 117.027 that describes which parcels an authority may condemn within a "blighted area" or an "environmentally contaminated area" as defined in Section 2. If an authority can make the findings fora "blighted area"-i.e., more than 50 percent of the buildings meet the structurally substandard test--the authority may not use eminent domain to acquire the non-substandard buildings in that area "unless there is no feasible alternative to the taking of the pacels on which the buildings are located in order to remediate the blight and all passible steps are taken to minimize the taking of buildings that are not structurally substandard:' (emphasis added.) Likewise, if the authority can find that an area meets the "environmentally contaminated area" test, an authority may not use eminent domain to acquire uncontaminated parcels "unless there is no feasible altemative to the taking of the uncontaminated pacels in order to complete remediation of the contaminated parcels and all possible steps are taken to minimize the taking of the uncontaminated parcels." (emphasis added) Moreover, if a developer "contributed to the blight or environmental contamination within the project area, the condition contributed by the developer must not be used in the determination of blight or environmental contamination." Comment 1: Prior versions of the bill imposed an "absolute necessity" test on these acquisitions, and the "no feasible alternative" provision was viewed as a compromise. Nevertheless, the standard is significantly different than current law, where the authority needed to show that the taking was reasonably necessary to carry out the underlying public purpose. What will an authority need to show in order to prove no feasible alternative? Will it be required show that no redevelopment effort would be economically feasible unless the other non-blighted or uncontaminated parcels are assembled for this purpose? But what evidence will show that? What if some other redevelopment would be theoretically possible that involves only the blighted or contaminated parcels, but that redevelopment would be inconsistent with the community's needs and plans? These are questions that will only be answered by future case law, and in light of the higher evidentiary standard described in Part V below. Comment 2: The limitations on area-wide takings must also be viewed in light of the narrow way that "blighted areas" and "environmentally contaminated areas" are defined. Substandard buildings and contaminated parcels may not be combined in order to meet the test for a project area, as under current law. In other words, if an authority meets the definition of an environmentally contaminated area (more than 50% of the parcels contaminated), it would have no authority to condemn even substandard buildings in that area unless more than 50% of the buildings in that area also met the substandard test. Likewise, the III-6 Kennedy & Graven 200 South Sixth Street, Suite 470 Minneapolis, MN 55402