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Ann M. Eisenberg, Rural Blight, 13 Harv. L. & Pol’y Rev. 187 (2018).

Blight—empty and decaying buildings that harm their communities—receives significant attention from politicians and wonks alike. President Trump’s inauguration speech referenced “rusted-out factories scattered like tombstones.” Think tanks like Pew discuss blight’s harmful effects today much as groups like RAND did decades ago. Yet when blight is discussed, it is almost inevitably preceded by the same adjective: urban. And more insidiously, the term historically implied a particular target for removal: communities of color. The literature rarely acknowledges blight in rural areas and even less frequently prescribes solutions tailored to rural spaces.

Ann Eisenberg’s aptly-named Rural Blight is a welcome effort to fill this gap and builds on the author’s earlier work. Eisenberg’s approach is systematic. She first defines the problem. Then, she diagnoses its primary causes. Lastly, she prescribes solutions. This last step is the piece’s chief virtue. As my title suggests, Eisenberg’s analysis is deeply practical, identifying real challenges that rural governments face while pinpointing solutions learned in other communities. Policymakers at the local, state, and regional levels have much to learn from Eisenberg’s piece.

Eisenberg sorts causes of rural blight into three buckets: judicial doctrines that overly protect rural property rights, macroeconomic changes that steadily undermined rural economic livelihoods, and proximate causes that sap local governments’ power to address blighted properties. The first two are relatively simple. Courts tend to protect rural land from public control and only reluctantly conclude that rural properties are nuisances. And the effects of globalization and agricultural consolidation are a tragic but all-too-familiar story.

The theme of the last cause is complexity. Tax foreclosure, for example, is a common cause of blight, rural and urban alike. But many states’ foreclosure proceedings are drawn-out and confusing. Further complications come from the problem of absentee landowners who sometimes live out of state. Though the law provides mechanisms to hold these owners accountable, the procedures are often tedious and span years. Local rural governments often lack the fiscal resources to pursue solutions in earnest because of declining revenues, a situation made even more difficult by a pure human capital shortfall due to a chronic shortage of rural attorneys, meaning there are not enough legal resources to support solutions.

Eisenberg centers these limits on local rural governments in her solutions. Many common approaches by urban governments—like aggressive eminent domain usage—are simply too “drastic” for their rural counterparts. Instead, Eisenberg identifies a series of realistic local, state, and regional approaches. I highlight only a small sample here.

For starters, local governments could expand their available resources by drawing upon neighboring jurisdictions. This could, on one extreme, occur by merger. Understandably, though, local residents tend to resist mergers that erase historical boundaries. If state law allows it, a more politically palatable approach is for local governments to share resources, like law enforcement, through intergovernmental agreements.

Local governments could also empower local residents to go after blighted property through conservatorship laws. This proposal resembles the enforcement of U.S. consumer protection laws, which provide individuals the means and financial motive to sue when government resources are lacking. Just as consumers can act as “private attorneys general,” rural residents could act as private code officers.

But working within their means does not mean that local rural governments have to be timid. For the ambitious, Eisenberg outlines measures to extradite out-of-state owners that fail to maintain their rural properties. They could also, as towns in West Virginia have, impose liens on fire insurance proceeds to force absent owners to pay.

Yet Eisenberg also stresses that state governments must empower rural municipalities and counties. States could, for example, provide even small towns with expansive “home rule” authorities. An example outside Eisenberg’s piece is illustrative. Michigan is a strong home rule state. The Michigan Supreme Court has interpreted this provision to grant municipalities broad authority to create and enforce public nuisance regimes. The City of Detroit, an urban government that famously suffers resource limitations, just this month used that authority to go after hundreds of delinquent properties in three large lawsuits. Rural governments could pursue similar actions, though with more modest scopes.

Lastly, states could go after the third cause of rural blight—limited capacity to use complex procedures—by making their property regimes a lot simpler. Tax foreclosure, for example, can be streamlined by shortening notice periods and consolidating enforcement proceedings. Transfer of property through inheritance, too, could be simplified through statutory default rules or uniform partition laws to address properties with multiple owners.

Appropriately, Eisenberg concludes by acknowledging blight policy’s unjust past. If rural governments aren’t mindful, they could repeat the same abuses that destroyed communities in the name of urban renewal. Yet the scale of the rural problem demands action. Rural governments should prioritize unoccupied buildings over occupied ones. When occupied buildings are addressed, governments should hold themselves to addressing measurable harms—think health and safety concerns—rather than squishy concepts like morals or aesthetics used in the past. Evicting residents should be the last possible option. Finally, more rural attorneys could prevent procedural abuses and bring those that do occur to light.

In fact, the basic need for more rural attorneys lurks behind much of the piece. Attorneys will be needed by local governments to draft and enforce new laws, by residents seeking to sue owners of local blight, and by property owners themselves to clarify contested property rights. State governments should, as states like South Dakota have, incentivize lawyers to put down roots in rural communities. If rural policymakers pursue Eisenberg’s litany of solutions—and really, they should—even more legal expertise will be needed to ensure their success.

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Cite as: Jackson Erpenbach, A Practitioner’s Guide to Addressing Rural Blight, JOTWELL (April 23, 2020) (reviewing Ann M. Eisenberg, Rural Blight, 13 Harv. L. & Pol’y Rev. 187 (2018)),