A Blight on Your Land

The more we examine the Court of Appeals’ hatchet job on New York State property owners, the more we see clearly that, not only does the eminent domain law need to be changed, but the entire higher court is in need of fumigation. The NY Times has more this morning on the debacle: “In a unanimous decision, the Court of Appeals overturned a lower court ruling that prohibited the state from using eminent domain to take property in the 17-acre expansion zone west of Broadway, known as Manhattanville, without the owners’ consent. The ruling held that the courts must give deference to the state’s determination that the area was “blighted” and that condemnation on behalf of a university served a public purpose, two ways that the project could qualify for eminent domain under state law.”

Deference? This goes way beyond deference-with NY's highest court abdicating its judicial responsibility in order to become the court stenographer for the ESDC. As the Contentions blog points out: “But in making this point, Judge Ciparick revealed that what is on display in this decision is not the application of a coherent legal principle but rather merely the justification of an act of judicial tyranny. In this way, New York has ratified a procedure by which the powerful, be they the real-estate developers who own the NBA Nets or the trustees of one of America’s most prestigious universities, can simply force small property owners out of their businesses and homes for the sake of the convenience of the wealthy and of those who are better connected to power brokers. This means that the state has the power to label any property as “blighted” in order to create a legal fiction device that allows powerful interests to acquire it without the consent of its owners. This is state-sponsored theft by any definition and the fact that it is practiced on behalf of a “nonprofit university,” as well as an NBA team, does not make it any less odious.”

When others have stated that blight is in the eye of the beholder, we have more accurately pointed out that, might makes blight-and the Court of Appeals, by overturning the Appellate Court’s decision, ratifies this dubious position. As we had said earlier when that first decision was rendered: “And the court went on to say: "The state agency in charge of eminent domain and the school even "predetermined the unconstitutional outcome" by cooking up findings that the neighborhood was "blighted" and that the school's $6 billion expansion plan, therefore, served a "civic use."

This overturning of a principled legal defense against official misconduct and collusion means that no one’s property is safe-and we have a high court that has no sense of its own judicial responsibilities. The Institute for Justice underscores this in their press release on this judicial travesty: “In today’s ruling, Kaur v. New York State Urban Development Corporation, Judge Carmen Ciparick wrote that the lower court should not have looked so closely at the agency’s blight findings, which should be “entitled to deference by the judiciary.” “In other words, the court is saying that judges shouldn’t judge,” said IJ President and General Counsel Chip Mellor… “No one taking a fair look at the state’s finding of ‘blight’—which is based on a report that was commissioned years after Columbia decided it wanted these properties—could think it is anything but a pretext for handing over these properties to another private owner,” explained Robert McNamara, an Institute for Justice staff attorney. “This isn’t judicial ‘deference.’ It’s judicial blindness.”

As leading eminent domain attorney Mike Rikon told the Times, this ruling doesn’t bode well for opponents of the permissive taking of private property: “Still, the decision was not unexpected, said Michael Rikon, a lawyer who specializes in condemnation law and real estate litigation. “It is virtually impossible to stop a condemnation in New York because of the courts’ deference to agencies’ determination,” Mr. Rikon said. “Even though the courts say they won’t be a rubber stamp, that’s in essence what they’ve become.”

But Nick Sprayregen isn’t giving up-and plans to appeal this decision to the Supreme Court: “Mr. Sprayregen, the owner of the four warehouses who had refused to sell to Columbia, said he intended to carry on the battle. “If not overturned, the ruling now will allow any private school to be the beneficiary of eminent domain to take their neighbor’s property,” he said. “Further, it telegraphs to every large developer that they merely need to purchase a majority of land in an area and then intentionally allow their property to worsen in physical condition, which could then trigger a blight designation which would allow them to forcibly take adjacent property.”

But ultimately, it is NY State law that needs to be fundamentally changed-a move that has been spearheaded in the state senate by Bill Perkins; and in the assembly by Richard Brodsky. We’ll give the Institute for Justice the last word: ““New York remains one of only seven states that has failed to provide any legislative reform of eminent domain, and it is the only state whose highest court has allowed private property to be taken for private use since the Kelo decision,” explained Christina Walsh, IJ’s director of activism and coalitions. “Every state high court to hear an eminent domain case since Kelo has applied greater judicial scrutiny—every state, that is, except New York. The New York Court of Appeals is the only state high court that gives complete and abject deference to the actions of condemning agencies, no matter how suspicious.”

“Today’s decision confirms what we already knew: Judicial review of eminent domain in New York is fundamentally broken,” concluded McNamara. “Unless the Legislature takes meaningful steps to protect property rights, New York property owners will find themselves out in the cold—in some cases all too literally.”