Friday, December 04, 2009

Perkins Percolates on Eminent Domain

We met with Bill Perkins on the steps of city hall this morning and, predictably, the senator was beaming over the appellate court's decision on Columbia and the use of eminent domain. Liz Benjamin captured this: "Sen. Bill Perkins applauded yesterday's court decision that it would be unconstitutional for the Empire State Development Corp. to use eminent domain to facilitate Columbia University's expansion in Harlem and urged the state to reconsider its plan to appeal. It's no secret that Perkins, who represents Harlem (he holds the seat that once belonged to Gov. David Paterson) is not a fan of government's use of eminent domain for private development projects."

The senator went on to say: "The use of eminent domain is like a gun to the community’s head which basically says, 'If you don’t give it up we’re going to take it,'" Perkins said outside City Hall this afternoon. And as a result, those who do not have the wherewithal of a Nick Sprayregen or a lawyer like Norm Siegel begin to negotiate under the threat of begin robbed or mugged through the process of eminent domain."

In response, Perkins may be looking to introduce legislation that would make NY State law more property owner friendly: "As chair of the Senate Corporations, Authorities and Commissions Committee, he held a series of hearings on the practice last summer and indicated support for legislation that would restrict its use."

The problem for eminent domain opponents is in the assembly, where Speaker Silver hasn't been seen as amenable to reform. But you have to start somewhere-and Assembly member Brosdsky is someone who can help make the case in that body.

Clearly, however, a national movement is gaining momentum on the issue-as the following well read legal blog highlights (thanks for the link):

"In Kaur v. New York Urban Development Corporation,a close 3–2 decision [HT: Neighborhood Retail Alliance], a New York intermediate appellate court has invalidated the taking of property in the Manhattanville neighborhood of New York City for transfer to Columbia University. Columbia and the government claimed that the land in question was blighted. However, the court ruled that there was no evidence of any real blight (especially before Columbia acquired much of the surrounding area after 2002), other than claims of “underutilization” of property. And mere “underutilization,” the majority concludes, is not enough to justify the condemnation of property as “blighted.” As the court puts it, “[t]he time has come to categorically reject eminent domain takings solely based on underutilization.” I wholeheartedly agree with this general sentiment. Indeed, I have often argued against broad definitions of blight that allow virtually any property to be condemned on the grounds that some other use might lead to increased development (see, e.g., here). Overbroad definitions of blight undercut many of the eminent domain “reform” laws enacted in response to the US Supreme Court’s decision upholding “economic development” takings in Kelo v. City of New London."

But, as Volokh points out, a major problem remains: "There is, however, one major problem with the Kaur decision: it seems to contradict the New York Court of Appeals’ (the state supreme court) recent decision in the Atlantic Yards case, Goldstein v. New York Urban Development Corporation, which specifically ruled that a property can be declared blighted and condemned if there was “economic underdevelopment” or “stagnation” in the area. As I explained in this post, Goldstein allows state officials to designate almost any area as blighted and then condemn property within it. As an intermediate appellate court the, Kaur court is required to follow state supreme court rulings. Unfortunately, the Kaur majority barely even mentions Goldstein, except for noting that the same private consultant conducted the study allegedly proving the existence of “blight” in both cases."

So, it appears from this legal observer, one who is definitely friendly to the cause of the opposition, that no one should be getting prematurely giddy: "However, the central holding of Kaur - that “underutilizationisn’t enough to prove blight — is in clear tension with the Atlantic Yards decision. The fact that the same consultant conducted both blight studies and used similar arguments to justify his findings only accentuates the tension. Indeed, underutilization” was the main evidence for the existence of blight in the Atlantic Yards project area, as well as in the part of Manhattanville condemned for transfer to Columbia."

And, as Volokh concludes-causing us to pause the celebration, even though Norman Siegel has explained the differences between the AY case and Columbia's: "In sum, I think that Kaur is a much better reasoned decision than Goldstein (except for its neglect of Goldstein itself). Unfortunately, the court that reached the wrong result is also the higher of the two. Thus, I fear that Kaur may well eventually be overruled by the Court of Appeals. At the very least, the Kaur majority should have taken more time to produce their opinion, and clearly explained why this case differs from Goldstein."

All of which makes the case for legislative remedies all that much more compelling. But, as we have pointed out, the Willets Point situation is fraught with any number of extra-legal difficulties-cost traffic mitigation and feasibility leading the way. Still, the courts just may, hopefully, be moving towards a different view on the use of eminent domain for "public benefit," and not public use.