12.7 Redevelopment and Housing Authorities

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

12.7 REDEVELOPMENT AND HOUSING AUTHORITIES

12.701 In General. Passed in 1938, the Housing Authorities Law ²⁰⁵ became the tool of localities to take property for eliminating blight in urban settings. Even though redevelopment projects involve transferring condemned property to private parties, the Supreme Court of Virginia and the United States Supreme Court have ruled redevelopment plans intended to eliminate blight and provide safe, sanitary housing to individuals constitutional. ²⁰⁶ The transfer of private property to a new private owner must be incidental to the accomplishment of the stated public purpose of the plan. ²⁰⁷

The Housing Authorities Law empowers localities to create redevelopment and housing authorities if the governing body believes it is appropriate for reasons set out in Section 36-2 of the Virginia Code. ²⁰⁸ The Housing Authorities Law empowers housing authorities to designate areas as blighted

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and to redevelop those blighted areas with public funds and with the power of condemnation. ²⁰⁹ Housing authorities are granted extensive powers to effect redevelopment plans. The governing body of any locality or its planning agency or other public agency designated to act must approve redevelopment plans before the designated redevelopment and housing authority may act on those plans to condemn property. ²¹⁰ Case law cloaks factual findings in those plans with a presumption of correctness. In Bristol Redevelopment & Housing Authority v. Denton, ²¹¹ the Supreme Court of Virginia denied Bristol the right to condemn property because the court determined that the housing to be condemned under the redevelopment plan was not sufficiently blighted to warrant condemnation. The Supreme Court of Virginia affirmed the trial court's decision. Not until 2006 was another housing authority stopped from condemning property under one of its plans. ²¹²

The Housing Authorities Law defines a blighted area in section 36-3 as:

any area that endangers the public health, safety or welfare; or any area that is detrimental to the public health, safety, or welfare because commercial, industrial, or residential structures or improvements are dilapidated, or deteriorated or because such structures or improvements violate minimum health and safety standards. This definition includes, without limitation, areas previously designated as blighted areas pursuant to the provisions of Chapter 1 (§ 36-1 et seq.) of this title.

Section 1-219.1(B) of the Virginia Code defines "blighted property" as

any property that endangers the public health or safety in its condition at the time of the filing of the petition for condemnation and is (i) a public nuisance or (ii) an individual commercial, industrial, or residential structure or improvement that is beyond repair or unfit for human occupancy or use.

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This definition requires that properties identified for acquisition by the use of eminent domain must themselves be blighted, rather than just existing within a blighted area.

The Virginia Supreme Court has...