Dog Bites Man: Developers Support Eminent Domain

In today's real estate section of the New York Times our old friend Terry Pristin writes about the concern developers have if the use of eminent domain is restricted. She opens by citing a project that was done by Doug Durst at One Bryant Park. As an exemplar, this development epitomizes the lawyer’s maxim "good cases make bad law."

It appears from this example that property owners fighting public taking can too easily, through their simple intransigence about retaining control over what is rightfully theirs, thwart economic development projects that are clearly in the public interest. And we're sure that from Durst's vantage it is. Obviously, however, there is more than one view on this matter.

Pristin goes on to catalogue the various legislative efforts, both nationally and locally, that have been initiated since the SC's Kelo decision came down last year. She quotes ED opponent Dana Berliner of the Institute for Justice who comments, "We lost the Supreme Court case, but we're ultimately going to win in changing the way that eminent domain is used in this country."

Pristin also reports about the chagrin of real estate developers that the ED issue is "the third rail now...You step on it, you die." Our old buddy Kathy Wylde of the NYC Partnership chimes in with, "When you add restrictions on development, you are never quite sure what the results are going to be."

What is glaring in all of this is the fact that Pristin manages to avoid any mention of the legal struggle that continues to this day over the ED battle involving the construction of the new Times headquarters building. This omission is the crux of Steve Cuozzo's column in today's NY Post. Cuozzo's point is that the Times' Durst example was one that was relatively benign, resulting in no extensive displacement of property owners or lengthy legal challenges.

The Times example, however, is still being fought out in court and if litigants like Gary Barnett of Extell are successful (a $200 million win is possible) it will be the tax payers and not the Times or the developer who will pay. All of this would have been of interest to Times readers, especially since the paper has editorialized strongly in support of ED.

Given the outcry over the ED issue, there is the realization that change is going to happen, and if it does legislators like Richard Brodsky of Westchester (mirroring what we have said) are looking for a middle ground. Issues surrounding the definition of blight and fairer methods of compensating property owners are sure to head any legislative agenda. Of particular concern is the fact that the "blight" rationale invariably targets low income communities.

All of this, of course, is not purely academic. People in Prospect Heights, West Harlem and Willets Point are concerned about their property as development projects go forward in those communities. All of which makes reform an urgent manner.