stating that the taking of private land deemed blighted is proper because the statute’s purpose was “the clearance, reconstruction and rehabilitation of the blighted area” and the separate, subsequent transfer to a private developer was “purely incidental to the accomplishment of the real or fundamental purpose.”
How later courts described this case
- stating that the taking of private land deemed blighted is proper because the statute’s purpose was “the clearance, reconstruction and rehabilitation of the blighted area” and the separate, subsequent transfer to a private developer was “purely incidental to the accomplishment of the real or fundamental purpose.”
- stating the legislative body “may establish primary standards and impose upon others the duty to carry out the declared legislative policy in accordance with the general provisions of the act.”
- Authority empowered to condemn property in area which is "blighted because of the unsafe, unsanitary, inadequate or over-crowded condition of the dwellings therein, or because of inadequate planning of the area, or excessive land coverage by the buildings thereon, or the lack of proper light and air and open space, or because of the defective design and arrangement of the buildings thereon, or faulty street or lot layout, or economically or socially undesirable land uses" [emphasis added]
- upholding the constitutionality of the Urban Redevelopment Law and the use of police powers to execute its purposes
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Mr. Justice Patteeson :
The majority opinion holds that it is not an unconstitutional delegation of legislative power to the planning commission, the redevelopment authority, and the governing body to permit them to determine not merely the existence of facts without which the authority could not act but also what constitutes those facts.
What constitutes a blighted area is not specifically defined by the Act. The term “Redevelopment Area” is referred to as, “Any area, whether inproved or unimproved, which a planning commission may find to be blighted because of the existence of the conditions
*346
enumerated in section two of this act so as to require development under the provisions of this act.” The only criteria by which the existence of a blighted area is to be ascertained are, therefore, found in section 2 of the Act, to wit: “. . . unsafe, unsanitary, inadequate or overcrowded condition of the dwellings ... or because of inadequate planning of the area,
or excessive land coverage
by the buildings thereon, or the lack of proper light and air and open space,, or . . .
defective design and arrangement of the buildings thereon, or faulty street or lot layout, or economically or socially undesirable land uses.”
(Italics supplied.) The term “Redevelopment” is defined as, “The acquisition, replanning, clearance, rehabilitation or rebuilding of an area for residential, recreational, commercial, industrial or other purposes, including the provision of streets, parks, recreational areas and other open spaces.”
The delegated power under the act is so broad that
each planning commission, authority or governing body has been vested with absolute power to determine what facts shall constitute any of the foregoing elements.
The sole restrictions upon exercise of this power exist by virtue of the direction that “The governing body shall not . approve a redevelopment proposal unless it is satisfied that adequate provisions will be made to rehouse displaced families, if any, without undue hardship, or, if the municipality in which the project is to be located has filed its objections thereto.”
It is the delegation of power to determine the standards in ascertaining the existence of a blighted area which is unconstitutional; not the delegation of power to act when once the jurisdictional facts are found to exist. The constitutional prohibition against delegation of power is not answered by the statement in the majority opinion that “the act contains as definite a description of what constitutes a blighted area as it is reasonably possible to express.” There is nothing in the act which delimits the sphere of discretion which may be
*347
exercised by the planning commission, governing body, or authority in determining the existence of a blighted area. “Delegation to a fact-finding body of the power to do something that is in itself circumscribed, after facts are found, is not the delegation of a legislative function. But where the delegation to a fact-finding body empowers it to create the conditions which constitute the fact, this is legislative”:
Wilson v. Philadelphia School District,
328 Pa. 225, 237 , 195 A. 90 . In that case the legislature left to the school board the power to determine what was the necessary amount to be raised and permitted the board to fix the tax rate accordingly. Justice Kdphaut, speaking for this Court, said (p. 237) : “Here the determinative fact, the most material element entering into the tax, may be created without restraint by the Board of Education. This determination can be nothing else than legislative.”
Whether power to determine what the law shall be has been delegated must be determined by consideration of the scope of the power given, as well as the manner in which it may be exercised. Conceivably, a determination of a blighted area may be reasonable and just under all the circumstances of a given case. It is equally possible and probable that such finding may be arbitrary, capricious and unreasonable. Cf.
Schechter v. United States,
295 U. S. 495, 532 . Pursuant to the powers given, the authority, in conjunction with the planning commission and governing body, may successfully condemn all property, within the territorial limits of a city. Such condemnation could not be successfully challenged if the -jurisdictional fact is found that the present use of the land is “socially undesirable.” Social undesirability has not been defined by the legislature and can be determined solely by the planning commission, authority, and governing body. Having thus condemned the property, the authority may redevelop it for “residential, recreational, commercial, industrial
or other purposes
(Italics supplied.) Examples of possible exercise of the
*348
unrestrained power could be multiplied and applied to “inadequate planning of the area, or excessive land coverage by the buildings thereon . . . defective design and arrangement of the building thereon, or faulty street or lot layout, or economically . . . land uses.” Delegation of this power to determine what shall constitute the jurisdictional facts is an
unlawful delegation of legislative power.
This unlawful delegation of power remains unaffected by the provision requiring approval of the authority’s redevelopment proposal by the “governing body.” Section 4(a) of the Act states that the Authority “shall in no way be deemed to be an instrumentality of such city or county, or engaged in the performance of a municipal function.” It matters not, therefore, whether a city council or a board of county commissioners approves the redevelopment plans. Not being a municipal function, approval by the respective bodies cannot be said to be the act of a representative of the people. Designation of a local magistrate ,or any other person or officer of the Commonwealth, a municipality, county or borough, as the one whose approval is required would be equally ineffective. The power to determine what the law shall be remains in the planning commission and the Authority.
Analysis of the statutes of 23 States, referred to in the majority opinion as being similar to the statutes under consideration, reveals that a majority are slum clearance statutes, similar to the Pennsylvania Housing Authorities Law, Act of 1937, P. L. 955, 35 PS 1541, et sec., the constitutionality of which was sustained in
Dornan v. Philadelphia Housing Authority,
331 209, 200 A. 834 . The constitutionality of statutes dealing with redevelopment and encompassing similar purposes has not been determined by the appellate courts in any State. The distinction between the two types of statutes is clear when their scope is considered. The decision of this Court in
Dornan v. Philadelphia Housing Author
*349
ity,
supra, is inapposite, either by comparison, analogy or otherwise.
I have been unable to find a single case wherein the constitutionality of a redevelopment law, as distinguished from a slum clearance law, was involved. I know of no other statute which has been upheld by this Court wherein power has been delegated to an administrative agency or body politic to determine
what shall constitute its own jurisdictional
facts. Certainly, this Court has never sustained a delegation of power to determine what shall constitute a
jurisdictional fact.
To the contrary, such delegation of power has been held unconstitutional:
Wilson v. Philadelphia School District,
supra.
The conclusion of the majority is contrary to established principles of constitutional law
and is a license to the legislature to place in the hands of persons, neither representatives of the people nor responsible to them in any manner, power to determine arbitrarily what shall constitute the law which is to be administered by them.
The decree of the court below should be reversed and the relief prayed for granted.