Courting Disaster for Property Rights in NY

In a blistering reversal, the NY State Court of Appeals has overturned the Appellate Court decision that had knocked out the Columbia University expansion plan. As Liz Benjamin reports: “The state Court of Appeals upheld the Empire State Development Corp.’s use of eminent domain to help Columbia University with its $6.3 billion expansion project over 17 acres in Harlem. I spoke briefly with Richard Lipsky, a lobbyist who represents Tuck-It-Away President Nick Sprayregen, who brought the case challenging ESDC’s decision the area – including the site if his storage business – was blighted and therefore able to be seized under eminent domain.”

Although we don’t represent Sprayregen anymore, we see the court’s decision as a terrible precedent-and a foreboding message to lower courts all over the state that any municipal action on behalf of eminent domain is alright as long as the locality says it is. Because of this court precedent-and let’s be very clear here-no one’s property is safe anywhere in New York.

The Court of Appeals, in glossing over the impropriety of the collusion of the consultants in this case, also is opening a huge barn door to any sham blight study that localities can concoct-and is a compelling reason why the state’s eminent domain law is in desperate need of revision-particularly its sections on blight.

This necessity is further underscored by the manner in which the state’s highest court basically ceded all power in this regard to the decisions made by local development agencies-a deference that will mean that any legal challenge to any local taking will be an impossible hill to climb.

Because of this, it is our view that this court is a symptom and symbol of the rot that so many people are beginning to see as corroding the politics of the state. The fact that the chief judge of this court is a political hack with no real prior judicial experience dots the “I’s” and crosses the “T’s” of our point.

So, in spite of the fact that states all over this nation are recognizing the threat posed to the basic constitutional rights of all Americans by the imperious use of the takings clause, New York remains in a retrograde position when it comes to property rights. As the Institute of Justice points out: “Kelo brought massive public awareness to the issue of eminent domain for private gain. Although there was growing concern about eminent domain abuse and some awareness before Kelo, after the decision, nearly every reasonably well-informed person in the nation now knows about the issue—and, according to survey after survey, the vast majority of them overwhelmingly oppose eminent domain for private development. Polls consistently show that well over 80 percent of the public oppose Kelo.”

Action followed almost everywhere, but not in NY: “There are exceptions, of course. New York has remained steadfast in its determination to take private property for politically connected developers and to resist any attempt or demand by the public to limit this practice.”

And it is this permissive and dismissive attitude that needs to be reformed-and blight should be in the crosshairs of all the eminent domain opponents: “The second way the government can abuse eminent domain is to rely on bogus blight designations, whereby neighborhoods are declared blighted through vague and expansive definitions that permit the government to proclaim virtually any poorer or even middle class neighborhood blighted. Governments do this because based on a fifty-year old precedent, Berman v. Parker, 348 U.S. 26 (1954), with a blight declaration comes the power of eminent domain.”

Blight is, of course, the linchpin of the Court of Appeals ruling-and it is instructive how other states’ high courts have pushed back against Kelo-while the supine and craven NY court renders a decision in the Tuck it Away that could have been Xeroxed right from the files of EDC and its lawyers.

As the Institute for Justice again points out: “One of the other reasons for this fundamental shift in eminent domain policy has been the response of state courts to Kelo. When the U.S. Supreme Court decided not to correctly interpret the U.S. Constitution, the state high courts began to fill that void. Three state supreme courts—Ohio, Oklahoma and South Dakota—explicitly rejected the Kelo decision. Ohio cities had frequently abused eminent domain and Oklahoma cities had occasionally abused the power, but we have heard of no new abuses in either state since their respective court decisions.”

But in New York we only have legal toadies who apparently have little regard for the basic constitutional rights of our citizens. And it will be up to the legislature-and we hope that this becomes a major campaign issue in the fall-to remedy the situation. If not, the old axiom that a person’s home is his or her castle will be rendered-at least in NY State-as nothing more than a quaint historic artifact; and a carte blanche green light to the municipal bulldozers.