Statement of the Pennsylvania Chapter of APA
to the
House of Representatives
Commonwealth of Pennsylvania
State Government Committee
Hearing on House Bills 1835 and 1836
August 31, 2005

Mr. Chairman and Members of the Committee.
Good Afternoon. My name is Richard G. Bickel, AICP, Chair of the Legislative Committee of the Pennsylvania Chapter of APA (Pennsylvania Chapter of APA), a Chapter of the American Planning Association. I am employed by the Delaware Valley Regional Planning Commission, in Philadelphia, as Deputy Director of the Regional Planning Division.

Pennsylvania Chapter of APA represents more than 2800 individual and organizational members, including both professional and citizen planners across the Commonwealth. The Pennsylvania Chapter of APA Board has authorized this testimony, which expands upon our initial statement at the Committee’s August 9th hearing in Harrisburg, and we appreciate the opportunity to appear before you again.

Overall Position: The Pennsylvania Chapter of APA opposes House Bills 1835 and 1836 for the reasons expressed below. We can support consideration of limited, clarifying amendments to the definition of “blight” in Act 385 of 1945, the Urban Redevelopment Law, and updated standards in Act 6 of 1964, the Eminent Domain Code. However, any such amendments should be derived from a comprehensive review of both statues, with full consideration of the consequences of the proposed revisions.

Background: The July U.S. Supreme Court decision and opinions in the Kelo v. City of New London case resulted in initial feelings of relief by municipal officials and professional staff across the country that the concepts of public use and public purpose, as expressed in previous court cases, were affirmed by the Court’s majority. This feeling of relief was quickly replaced by a defensive posture in the face of sensational reporting, exaggerated conclusions and a backlash from the public and some elected representatives. The result has been a flurry of curative legislative proposals at the state and federal levels to place curbs on established practices and legal precedents that have upheld the core concepts of urban renewal, community revitalization and economic development planning for decades.

The American Planning Association (APA) filed an amicus brief supporting the position of the City of New London, and we were pleased that the majority opinion in the Kelo case upheld our views. Despite the furor that followed the Supreme Court’s decision, we believe it is important to clarify what has not changed as a result of the decision:

• No new powers were created;
• State laws and constitutions governing eminent domain were not overturned; and
• The Court affirmed that a thorough and engaged planning process protects the values of citizens and their community.
  (Source: “Domestic Policy Watch, Redevelopment Done Right,” by Paul Farmer, AICP, APA Executive Director, July 2005.)

Prospects for abuse of property owners through eminent domain proceedings have also been diminished, given the greater degree of public official, media and citizen scrutiny and oversight of potential condemnations. However, we recognize that abuses have occurred and agree with other testimony that eminent domain should be used sparingly. Planners are taught that they are bound to serve and protect the public interest; abuse of governmental authority is inconsistent with this ideal.

Rationale for Our Position: The key problem we see with hastily conceived legislative “fixes” is that the proposed cures may have unintended consequences that will weaken the sound foundation for urban revitalization in the Commonwealth of Pennsylvania and elsewhere. Just as “America started here,” the legislative authority for urban redevelopment started 60 years ago, in Pennsylvania, with the enactment of Act 385 of 1945. This precedent-setting law, which even seems to presage the Kelo decision, states in Section 2, Findings and Legislative Policy, that:

Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to promote the health, safety and welfare of the inhabitants thereof by the creation of bodies corporate and politic to be known as Redevelopment Authorities, which shall exist and operate for the public purposes of the elimination of blighted areas through economically and socially sound redevelopment of such areas, as provided by this act, in conformity with the comprehensive general plans of their respective municipalities for residential, recreational, commercial, industrial or other purposes, and otherwise encouraging the provision of healthful homes, a decent living environment and adequate places for employment of the people of the Commonwealth. Such purposes are hereby declared to be public uses for which public money may be spent, and private property may be acquired by the exercise of eminent domain. (Emphasis added.)

This Section of the Urban Redevelopment Law highlights a key document to support community redevelopment, revitalization and economic development. Such activities should (and in the case of proposed redevelopment activities are required to) be based on a community’s comprehensive plan to provide the technical and policy support and the overall rationale for the application of the proposed implementation strategies (including the possible use of eminent domain) to accomplish desired community improvements. The Municipalities Planning Code (Act 247 of 1968, as amended) establishes the comprehensive plan’s minimum contents, provides for the creation of a planning commission and the procedures for considering the adoption of the initial comprehensive plan and any subsequent amendments. The comprehensive plan should embody the public policy goals of the community and is one way of showing the public the community’s future vision, including possible revitalization projects.

The use of public involvement in the planning and implementation process, particularly for those who will be affected by any recommendations for change, is also critical. Aside from public hearing requirements, with formal public notice practices (as in the Urban Redevelopment Law), the use of community workshops, informal meetings and other techniques can help to develop community consensus on needed change rather than confrontation and litigation.

Thus, “redevelopment done right” is based on a detailed, specific plan, consistent with a community’s comprehensive plan, with both plans subject to effective and concerted public involvement. Eminent domain, if necessary, should be accompanied by equitable just compensation based on fair market value. APA and Pennsylvania Chapter of APA also believe that local officials are the most accountable to local residents. As noted in APA Executive Director Paul Farmer’s commentary, it is ironic that opponents of the Kelo decision seem to be saying that the federal judges they often malign as “activist and disconnected” are now more appropriate arbiters of local fairness than those most directly accountable at the ballot box. We believe that current laws and legal precedents protect the citizens of Pennsylvania from abuses of governmental power, but we can support legislative changes that serve to affirm, clarify and strengthen these protections.

Specific Comments on the Provisions of House Bills 1835 and 1836: The Urban Redevelopment Law has been operating effectively for decades and attempts to change its applicability and use by amendments to the Eminent Domain Code should not be done in haste. Taking derelict properties and applying various techniques to make them attractive for new private sector investment is a key rationale for community revitalization. As stated in testimony by previous speakers, the public sector seeks private sector developers to accomplish urban redevelopment plans and the goals of such plans are certainly to yield community improvements that directly or indirectly enhance the tax base of the community. Thus, the provisions of HB 1836 are inconsistent with current practices and could result in serious harm to the good intentions, effective strategies and public policies of communities across the Commonwealth.

Likewise, we do not support HB 1835’s singling out the provisions governing the creation and operation of Business Improvement Districts (BID) for application of such restrictive standards. BIDs have been quite effective, including the Center City District where we are sitting today, in managing and brokering change through public/private partnerships, including advancing needed transportation improvements. BIDs are created to enhance their service area by maintaining and increasing the quality of life and local tax base, while recouping the assessment-based contributions of their membership. We believe HB 1835’s proposed standards are not needed.

In both bills, we do not support the proposed property owner reverter clause concept. We believe it is a prescription for protracted litigation, clouded property titles and languishing vacant properties or abandoned buildings, including potentially contaminated sites requiring remediation, the costs of which cannot and should not be borne by individual property owners.

While we may disagree with the drafting of these bills, the prime sponsor and co-sponsors have performed a valuable public service by introducing these legislative proposals. The information obtained from various interests at these hearings has already resulted in helpful suggestions to revisit the definition of “blight” in the Urban Redevelopment Law. We offer two such suggestions:

• Add environmentally contaminated sites or areas to the criteria for blight certification.
• Add a statement clarifying that sites or areas having inefficient street patterns or older properties (in the absence of any of the other blight criteria) shall not be eligible for application of the Urban Redevelopment Law.

Additional changes also seem warranted in the 1964 Eminent Domain Code to treat non-residential properties more equitably and to bring various costs and standards into the 21st Century. We recommend that appropriate representatives from the affected interests be enlisted to advise you during this assessment. We also request that you collaborate with your colleagues in the Senate on any legislative proposals that they may introduce.

Conclusion: Pennsylvania Chapter of APA urges the General Assembly to exercise caution as you consider possible changes to Pennsylvania’s 60-year experience with redevelopment and related community development programs and legislation, as well as the body of firmly established legal principles and judicial support for plans and projects that carry out both public uses and public purposes. Taking the time to perform a more comprehensive assessment and recommended changes than what is presently contained in House Bills 1835 and 1836 can ensure a more informed public debate, and consideration of more focused remedies that can better serve the people of the Commonwealth in the future.

Thank you for the opportunity to offer these remarks, and I will be happy to respond to any questions you may have.